Citation Nr: 21040636
Decision Date: 07/06/21	Archive Date: 07/06/21

DOCKET NO. 15-08 262
DATE: July 6, 2021

ORDER

Entitlement to service connection for motor skill and balance condition is denied.

Entitlement to service connection for rheumatoid arthritis is denied.

Entitlement to a compensable rating prior to December 2, 2019 or in excess of 10 percent from that date for hemorrhoids disability is denied.

Entitlement to an increased rating in excess of 10 percent prior to December 2, 2019, or in excess of 30 percent from that date for right carpal tunnel syndrome disability is denied.

Entitlement to an increased rating in excess of 10 percent for left carpal tunnel syndrome disability is denied.

Entitlement to an increased initial rating to 10 percent, but no higher, for pyelonephritis disability throughout the appeal period is granted.  

Entitlement to an increased initial rating for lumbar spine disability to 10 percent, but no higher, prior to December 2, 2019 is granted.  

Entitlement to an increased rating for lumbar spine disability in excess of 20 percent from December 2, 2019 is denied.   

Entitlement to a compensable rating for skin disability, categorized as dermatitis or intertrigo, is denied. 

Entitlement to increased initial rating for cervical spine degenerative disc disease disability to 30 percent, but no higher, prior to August 11, 2014 is granted.  

Entitlement to increased rating for cervical spine degenerative disc disease disability in excess of 40 percent from August 11, 2014 is denied.   

Entitlement to an increased rating higher than 10 percent for residual scars of cervical fusion (rated under Diagnostic Code 7800) is denied. 

Entitlement to an increased rating higher than 10 percent for painful scars (rated under Diagnostic Code 7804), residuals of cervical fusion, is denied.

Entitlement to increased initial rating for bilateral plantar fasciitis to 30 percent, but no higher, prior to December 2, 2019 disability is granted.

Entitlement to an increased rating in excess of 50 percent for obstructive sleep apnea disability with asthma is denied.

Entitlement to increased rating in excess of 10 percent for gastroesophageal reflux disease (GERD) disability is denied.

REMANDED

Entitlement to service connection for right lower extremity peripheral neuropathy is remanded.

Entitlement to service connection for left lower extremity peripheral neuropathy is remanded.

Entitlement to service connection for right hand tendonitis to include trigger finger is remanded.

Entitlement to service connection for left hand tendonitis to include trigger finger is remanded.

Entitlement to service connection for peripheral vascular disease claimed as swelling of extremities is remanded.

Entitlement to service connection for irritable bowel syndrome is remanded.

Entitlement to service connection for periodic limb movement disorder claimed as restless legs syndrome is remanded.

FINDINGS OF FACT

1. The Veteran does not have a diagnosed motor skill and balance disorder. 

2. The Veteran does not have diagnosed rheumatoid arthritis.

3. During the appeal period, the Veteran's hemorrhoids manifested in bleeding, occasional or persistent, and manifested as mild or moderate, but from December 2, 2019 also exhibited excessive redundant tissue, but the Veteran did not have secondary anemia or exhibit fissures during the period on appeal.   

4. The Veteran's dominant hand is the right. 

5. During the period on appeal prior to December 2, 2019, the Veteran's right carpal tunnel syndrome manifested in mild incomplete paralysis predominantly of the ulnar nerve, and moderate incomplete paralysis of the median nerve from that date.  

6. During the period on appeal, the Veteran's left carpal tunnel syndrome manifested in mild incomplete paralysis of the ulnar or median nerve. 

7. The Veteran's pyelonephritis manifested in recurrent urinary tract infections with one to two hospitalizations annually but not in recurrent symptomatic infection requiring drainage or hospitalizations more than two times annually or requiring continuous intensive management. 

8. The Veteran's lumbar spine disability manifested in painful motion or with limited range of motion to forward flexion of 75 degrees prior to December 2, 2019, with manifestation of forward flexion during flare-ups estimated at 50 degrees from that date, but not in forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine or in incapacitating episodes. 

9. The Veteran's skin condition diagnosed as intertrigo has manifested as intermittent rash under the breasts that is treated with topical cream on less than 5 percent of total body area and has not manifested in covering at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the previous 12-month period.   

10. The Veteran's cervical spine disability more closely approximated favorable ankylosis of the entire cervical spine prior to August 11, 2014; from that date, the cervical spine disability manifested in unfavorable ankylosis of the entire cervical spine, but not in total ankylosis of the entire spine or in incapacitating episodes having a duration of at least 6 weeks in the previous 12 months.  

11. The Veteran's entire spine did not manifest in ankylosis or functional loss equivalent to ankylosis.  

12. The Veteran has two painful scars that are residuals of cervical surgery that have one characteristic of disfigurement, but not three or four painful scars, and not scars with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears, cheeks, lips), or; with two or three characteristics of disfigurement.  

13. For the period prior to December 2, 2019, the Veteran's bilateral plantar fasciitis manifested in callosities with pain on manipulation and use accentuated but not in marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances.  

14. The Veteran's obstructive sleep apnea did not manifest worse than requiring use of a breathing assistance device such as continuous airway pressure (CPAP) machine.  The Veteran's sleep apnea did not manifest in respiratory failure with carbon dioxide retention or cor pulmonale or require a tracheotomy. 

15. The Veteran's asthma did not manifest in pulmonary function level of FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least 3 times per year) course of systemic (oral or parenteral) corticosteroids. 

16. The Veteran's service-connected GERD disability has manifested in symptoms such as persistent epigastric distress, nausea, vomiting, pyrosis, substernal arm pain, but not melena, moderate anemia, or material weight loss, and has not been productive of considerable or severe impairment of health.   

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for motor skill and balance condition have not been met.  38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. § 3.4, 3.102, 3.303, 3.304, 3.310. 

2. The criteria for entitlement to service connection for rheumatoid arthritis have not been met.  38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. § 3.4, 3.102, 3.303, 3.304, 3.310. 

3. The criteria for entitlement to a compensable rating for hemorrhoids disability prior to December 2, 2019, or to a rating in excess of 10 percent from that date have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.114, Diagnostic Code 7336.

4. The criteria for entitlement to an increased rating in excess of 10 percent prior to December 2, 2019 or in excess of 30 percent from that date for right carpal tunnel syndrome have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DCs 8515, 8516.  

5. The criteria for entitlement to an increased rating in excess of 10 percent for left carpal tunnel syndrome have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DCs 8515, 8516. 

6. The criteria for entitlement to an increased rating for pyelonephritis disability to 10 percent, but no higher, have been met throughout the appeal period.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.115a, 4.115b, Diagnostic Code 7504.  

7. The criteria for entitlement to an increased rating for lumbar spine disability to 10 percent, but no higher, prior to August 11, 2014 have been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242, 5243. 

8. The criteria for entitlement to an increased rating for lumbar spine disability in excess of 10 percent prior to December 2, 2019, or in excess of 20 percent from that date have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5242, 5243. 

9. The criteria for entitlement to a compensable rating for skin disability, categorized as dermatitis or intertrigo have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.118, DC 7806. 

10. The criteria for entitlement to increased rating for cervical spine degenerative disc disease disability to 30 percent, but no higher, have been met prior to August 11, 2014.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5242, 5243.  

11. The criteria for entitlement to increased rating for cervical spine degenerative disc disease disability in excess of 40 percent from August 11, 2014 have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5242, 5243.  

12. The criteria for entitlement to a rating higher than 10 percent for scars, residuals of cervical fusion, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7800.  

13. The criteria for entitlement to a rating higher than 10 percent for painful scars, residuals of cervical fusion, from August 11, 2014 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804.   

14. The criteria for an initial rating of 30 percent for bilateral plantar fasciitis are met for the period prior to December 2, 2019.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5299-5276.  

15. The criteria for an increased rating in excess of 50 percent for sleep apnea with asthma have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.97, Diagnostic Code 6602, 6847. 

16. The criteria for entitlement to increased rating in excess of 10 percent for gastroesophageal reflux disease (GERD) have not been met.  38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, DC 7399-7346.  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from July 1984 to October 1984 and from January 1991 to April 1991. 

These issues were previously before the Board and in a September 2018 decision, among other orders, it denied the appeal related to a finding by the AOJ that a Form VA-9 was untimely and the related claim to earlier effective dates based on that circumstance is final and no longer before the Board. 

Service Connection

1. Entitlement to service connection for motor skill and balance condition

The Veteran claims to have a motor and balance disorder related to active service or to a service-connected disability.  After a thorough review of the evidence, the Board finds that entitlement to service connection for a motor and balance disorder is not warranted. 

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). 

Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310 (a).  Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) caused by, or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

CAPRI records show the Veteran requested treatment in June 2010 stating that she had been swaying back and forth during the day and had previous episodes of her body shaking. 

The Veteran was afforded a VA examination for several conditions in December 2019 pursuant to the prior Board remand in 2018.  The VA examiner determined that the Veteran does not have a motor and balance disorder or vestibular disorder. 

The Board finds the medical examinations adequate, credible, and probative.  Each examination was conducted in-person and includes a review of the record and is informed of the Veteran's health history.  The examiner performed relevant diagnostic testing and each report indicates consideration of the Veteran's lay statements concerning her symptoms and alleged injuries or in-service events.  

The Board concludes that the Veteran does not have a current disability or diagnosis of motor and balance disorder 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).  

Additionally, there is no indication in the record that the Veteran's symptoms amount to a disability pursuant to Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69.

While the Veteran believes she has a motor and balance disorder, she is not competent to provide a diagnosis in this case.  The issue is medically complex, as it requires specialized medical education, knowledge of the interaction between multiple organ and nerve systems in the body, and the ability to perform and interpret diagnostic testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the competent medical evidence which shows no diagnosis exists. 

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See, Degmetich v. Brown, 104 F.3d 1328 (1997).  While the Board gives significant consideration to the Veteran's assertions, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  Unfortunately, the evidence weighs heavily against the claim for disability in this case.  

In the absence of proof of a present disability there can be no valid claim.  Brammer v. Brown, 3 Vet. App. 223 (1992). As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for motor and balance disorder must be denied. See, 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49. 

2. Entitlement to service connection for rheumatoid arthritis

The Veteran contends that she has rheumatoid arthritis related to active service or to a service-connected disability.  After a thorough review of the evidence, the Board finds that entitlement to service connection for rheumatoid arthritis is not warranted.  

The Veteran was afforded multiple VA examinations in December 2019 pursuant to the 2018 Board remand instructions.  As rheumatoid arthritis may manifest in more than one location, this condition was considered at the various examinations.  X-rays were taken of the Veteran's bilateral knees and hands which showed no arthritis.  The examiner also noted that the Veteran's rheumatoid factor test did not reach the level of diagnosed rheumatoid arthritis to include November 2019, June 2012, and June 2010 testing.  

The Board finds the medical examinations adequate, credible, and probative.  Each examination was conducted in-person and includes a review of the record and is informed of the Veteran's health history.  The examiner performed relevant diagnostic testing and each report indicates consideration of the Veteran's lay statements concerning her symptoms and alleged injuries or in-service events.  

The Board concludes that the Veteran does not have a current disability or diagnosis of rheumatoid arthritis 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).  

Additionally, there is no indication in the record that the Veteran's symptoms amount to a disability pursuant to Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69.

While the Veteran believes she has rheumatoid arthritis, she is not competent to provide a diagnosis in this case.  The issue is medically complex, as it requires specialized medical education, knowledge of the interaction between multiple organ and nerve systems in the body, and the ability to perform and interpret diagnostic testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the competent medical evidence which shows no diagnosis exists. 

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See, Degmetich v. Brown, 104 F.3d 1328 (1997).  While the Board gives significant consideration to the Veteran's assertions, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  Unfortunately, the evidence weighs heavily against the claim for disability in this case.  

In the absence of proof of a present disability there can be no valid claim.  Brammer v. Brown, 3 Vet. App. 223 (1992). As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for rheumatoid arthritis must be denied. See, 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49. 

Increased Ratings

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3. 

Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition.  It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history.  38 C.F.R. § 4.1.  Nevertheless, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The Board notes that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995).  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities.  38 C.F.R. § 4.45.  Painful, unstable, or maligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis).  However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body.  Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 

3. Entitlement to a compensable rating for hemorrhoids disability

The Veteran contends that her hemorrhoids disability is worse than contemplated by the assigned noncompensable rating prior to December 2, 2019 and 10 percent rating from that date.  After a thorough review of the evidence, the Board finds that an increased rating beyond a compensable level for hemorrhoids prior to December 2, 2019 or in excess of 10 percent from that date is not warranted. 

The Veteran's hemorrhoids disability is rated at noncompensable prior to December 2, 2019 and 10 percent from that date under DC 7336. 

Under DC 7336, a noncompensable evaluation is assigned for mild to moderate hemorrhoids.  A 10 percent evaluation is assigned for external or internal hemorrhoids, large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences.  A 20 percent evaluation is assigned for external or internal hemorrhoids, with persistent bleeding and with secondary anemia, or with fissures.  38 C.F.R. § 4.114, DC 7336.  

At the April 2010 VA examination, the examiner reported that the Veteran had a history of hemorrhoids.  The Veteran reported occasional bleeding and used pads to treat them.  There was no indication that the Veteran was anemic or that there were fissures or that the hemorrhoids were large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences.  

At the August 2014 VA evaluation, the medical provider reported that the Veteran had confirmed internal hemorrhoids and rated them as mild to moderate.  The Veteran reported persistent bleeding. There was no indication that the Veteran was anemic or that there were fissures or that the hemorrhoids were large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences.  

The Veteran stated at the Board hearing in 2016 that she has regular bleeding due to hemorrhoids.  

At the December 2019 VA examination, the examiner recorded a diagnosis of hemorrhoids.  The Veteran reported using over the counter remedies to treat them.  The Veteran reported intermittent rectal bleeding with bowel movements.  The examiner noted mild or moderate severity and intermittent bleeding as well as excessive redundant tissue.  There was no indication that the Veteran was anemic or that there were fissures.  

The Veteran's hemorrhoids have been described as mild or moderate in severity throughout the appeal period consistent with a noncompensable rating.  However, the December 2019 VA examiner noted excessive redundant tissue which is a characteristic of a 10 percent disability rating.  The Veteran has not been reported by examination as anemic or as having fissures.  

The Board has reviewed the remaining DCs relating to disabilities of the digestive system but finds that they are inapplicable in this case.  See 38 C.F.R. § 4.114 (2017); see also Copeland v. McDonald, 27 Vet. App. 333 (2015) (holding that rating by analogy is not permitted when, as in this case, there is a DC that is specifically labeled with the name of a particular condition).  The Board finds that the Veteran's reports of symptoms related to her hemorrhoids are competent and credible, as the symptoms reported are experienced by the Veteran.    

In summary, the Board concludes that the preponderance of the evidence is against the claim for an increased rating beyond a compensable level for hemorrhoids prior to December 2, 2019 or in excess of 10 percent from that date.  The benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application as there is not an approximate balance of evidence. 

4. Entitlement to an increased rating for right carpal tunnel syndrome

5. Entitlement to an increased rating for left carpal tunnel syndrome 

The Veteran contends that her right and left carpal tunnel syndrome (CTS) is worse than contemplated by the assigned 10 percent right CTS rating prior to December 2, 2019 and 30 percent from that date; and worse than the 10 percent rating assigned for left CTS. 

The Veteran's right carpal tunnel syndrome is rated 10 percent prior to December 2, 2019 under DC 8599-8516 and 30 percent from that date under DC 8515; the Veteran's left CTS is rated at 10 percent during the appeal period under DC 8516. 

Hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code.  38 C.F.R. § 4.27.  The first four numbers reflect the diagnosed disability.  The second four numbers, after the hyphen, identify the criteria used to evaluate that disability.  When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using 99 for the last 2 digits.  38 C.F.R. § 4.27. 

Radiculopathy affecting the radial nerve is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8514.  In the dominant extremity, a 20 percent disability rating is warranted for mild incomplete paralysis, a 30 percent rating is warranted for moderate incomplete paralysis, a 50 percent rating is warranted for severe incomplete paralysis, and a 70 percent rating is warranted for complete paralysis.  In the nondominant extremity, a 20 percent disability rating is warranted for mild or moderate incomplete paralysis, a 40 percent rating is warranted for severe incomplete paralysis, and a 60 percent rating is warranted for complete paralysis. 

Radiculopathy affecting the median nerve is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8515.  In the dominant extremity, a 10 percent disability rating is warranted for mild incomplete paralysis, a 30 percent rating is warranted for moderate incomplete paralysis, a 50 percent rating is warranted for severe incomplete paralysis, and a 70 percent rating is warranted for complete paralysis.  In the nondominant extremity, a 10 percent disability rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for severe incomplete paralysis, and a 60 percent rating is warranted for complete paralysis. 

Radiculopathy affecting the ulnar nerve is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8516.  In the dominant extremity, a 10 percent disability rating is warranted for mild incomplete paralysis, a 30 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for severe incomplete paralysis, and a 60 percent rating is warranted for complete paralysis. In the nondominant extremity, a 10 percent disability rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, a 30 percent rating is warranted for severe incomplete paralysis, and a 50 percent rating is warranted for complete paralysis. 

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 upon 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.  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). 

A September 2009 treatment record shows that the Veteran was seen for carpal tunnel syndrome.  The medical provider noted an EMG study earlier in the year showed no slowing in the ulnar or median nerves and assessed the carpal tunnel bilaterally as mild to moderate. 

At the May 2010 VA examination, the Veteran reported bilateral wrist pain and numbness and that she wore wrist braces.  The examiner described the symptoms as bilateral wrist pain radiating to both palms, also numbness in ulnar aspect of both hands and bilateral thumb weakness. Right and left ulnar nerves had normal motor function with decreased pain sensation.  Right and left median nerves had weakness of thumb opposition.  

In a March 2014 CAPRI note, a medical provider noted that the Veteran complained of bilateral hand numbness.  The provider noted it could be related to carpal tunnel. 

The August 2014 VA examination showed reported symptoms of moderate constant pain in the bilateral upper extremities with the Veteran reporting bilateral wrist pain.  The examiner noted no carpal tunnel decompression.  Bilateral radial, ulnar, and median nerves were reported as normal.  The Veteran was continuing to use wrist braces.  The examiner noted that the Veteran had undergone four orthopedic treatments for trigger finger syndrome. 

At the 2016 Board hearing, the Veteran reported that she had been told she has "claw" hand and that the carpal tunnel symptoms had worsened in both her wrists.  

At the December 2019 VA examination, the Veteran reported numbness, tingling, and spams in the hands.  The Veteran used wrist braces for her carpal tunnel disability.  The Veteran's dominant hand is the right.  The severity of symptoms reported were moderate intermittent pain and moderate paresthesias with mild numbness in the bilateral upper extremities.  The ulnar, upper radicular group, and radial nerves were examined as normal while the median nerve was reported as moderate incomplete paralysis on the right and mild on the left. 

Based on the foregoing, the Board finds that separate ratings for the Veteran's service-connected carpal tunnel symptoms are not warranted for the different nerves affected at different times.  Separate ratings are not in order as they are precluded by the note in 38 C.F.R. § 4.124a that bars separate ratings for upper extremity peripheral nerve disabilities that involve multiple nerves.  Additionally, even in absence of this note, separate ratings cannot be assigned as the symptomatology associated with the Veteran's disability has not been shown to be separate and distinct.  The symptomatology such as pain, decreased grip strength, and tingling is overlapping and duplicative.  Pyramiding, the evaluation of the same disability or the same manifestation of a disability under different diagnostic codes is to be avoided pursuant to 38 C.F.R. § 4.14.   

As the Veteran has multiple nerve parts affected, the Board finds that the Veteran has been properly rated under Diagnostic Code 8516 initially for both wrists and then under 8515 for the right wrist, as the predominant and more advantageous DC.  Here, the Board has credited the Veteran's lay statements as well as the medical evidence (private medical evidence and VA examination reports) regarding the severity of the Veteran's nerve disabilities.  In that regard, the Board finds that the evidence indicates that the Veteran's right carpal tunnel disability is more severe than the left.  There is also evidence that the Veteran suffers from symptoms of numbness; tingling; pain; difficulty gripping items and typing.  The evidence does not reflect a "griffin claw" deformity, or loss of extension of the ring and little fingers, or atrophy; pain with trophic disturbances, hand inclined to the ulnar side; pronation incomplete and defective, or other symptoms that would warrant a higher 100 percent disability rating for carpal tunnel syndrome.  

Based on these symptoms, the Board finds that the Veteran experienced mild right and left incomplete paralysis predominantly of the ulnar nerves and from December 2, 2019, experienced moderate incomplete paralysis of the median nerve for her right wrist.  The Board notes that the Veteran also has a separate claim for entitlement to service connection for bilateral trigger fingers/hand tendonitis which encompasses some of the other reported symptoms related to the hands.  As such, the Board concludes that an increased disability rating in excess of 10 percent bilaterally for carpal tunnel syndrome prior to December 2, 2019, and from that date 10 percent for the left wrist and 30 percent for the right wrist carpal tunnel syndrome disability, is not warranted.  38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DCs 8515, 8516.

6. Entitlement to an increased rating for pyelonephritis disability

The Veteran contends that her pyelonephritis disability is worse than contemplated by the assigned noncompensable rating prior to December 2, 2019 and the 10 percent rating from that date.  After a thorough review of the evidence, the Board finds that a 10 percent disability rating, but no higher, for the entire appeal period is warranted under Diagnostic Code 7504. 

The Veteran's recurrent pyelonephritis disability was rated under Diagnostic Code 7599-7536 prior to December 2, 2019 at a noncompensable level and is now rated at 10 percent from that date under Diagnostic Code 7599-7504. 

Under Diagnostic Code 7504, pyelonephritis is rated pursuant to the criteria for renal dysfunction and urinary tract infection, whichever is predominant.  38 C.F.R. § 4.115b, Diagnostic Code 7504. 

Renal dysfunction:

Albumin and casts with history of acute nephritis; or, hypertension non-compensable under Diagnostic Code 7101, noncompensable (0 percent) rating.

Albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension is at least 10 percent disabling under Diagnostic Code 7101, 30 percent rating.

Constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension is at least 40 percent disabling under Diagnostic Code 7101, 60 percent rating.

Persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, 80 percent rating.

Requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular, 100 percent rating. 38 C.F.R. § 4.115a. 

Urinary tract infection (UTI):

Poor renal function is rated as renal dysfunction.

Long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management, 10 percent rating.

Recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management, 30 percent rating. 38 C.F.R. § 4.115a. 

A January 2010 CAPRI note recorded a diagnosed condition of pyelonephritis with recurring urinary tract infections on an annual basis treated with antibiotics.  

The April 2010 VA DBQ for kidney completed at VA reported that the Veteran stated she had UTIs annually that were treated with antibiotics and had been hospitalized once in the past year for the condition.  The diagnosis was inactive recurrent pyelonephritis. 

At the 2016 Board hearing, the Veteran reported she had gone to the hospital that year for this condition and reported that she had heard discussion of neurogenic bladder with reference to her kidney condition. 

At the December 2019 VA examination for kidney conditions, the examiner noted that there was no renal dysfunction.  The Veteran reported the most recent incident was in 2018 related to pyelonephritis.  She reported flank pain, and the need to go to the hospital and be treated with antibiotics when the condition flares up.  There was a history of UTIs necessitating 1 to 2 annual hospital visits with prescription medications for treatment.  The Veteran's BUN was 11 and creatinine was 0.87.  

As the Veteran's records reflect that she had been diagnosed with pyelonephritis from the beginning of the appeal period, and that condition exists specifically in the rating schedule as it is currently assigned under DC 7504, the Board finds that DC 7504 should be used throughout the appeal period.  The evidence of record shows that urinary tract infection is the predominant symptomatology.  Accordingly, as the Veteran's pyelonephritis manifested in recurring annual hospitalizations one to two times per year and requiring intermittent intensive management, but not infection requiring drainage or hospitalization more than two times per year or requiring continuous intensive management, the Board finds that a 10 percent disability rating, but no higher, for pyelonephritis is warranted during the entire appeal period. 

7. Entitlement to an increased rating for lumbar spine disability

The Veteran contends that her lumbar spine disability is worse than contemplated by the assigned noncompensable rating prior to August 11, 2014; 10 percent rating from that date; and 20 percent rating from December 2, 2019.  After a thorough review of the evidence, the Board finds that an increased initial rating to 10 percent, but no higher, is warranted for the Veteran's lumbar spine disability, but a rating in excess of 10 percent prior to December 2, 2019 or in excess of 20 percent from that date is not warranted.     

The Veteran's lumbar spine disability categorized as degenerative joint disease, and previously as noncompensable lumbar herniated disc and thoracic fracture under DC 5243 prior to August 11, 2014, is now rated at under Diagnostic Code 5242 at 10 percent from that date and 20 percent from December 2, 2019.  

Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is assigned for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable 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 the entire spine.

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."  Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (5). 

A February 2010 CAPRI note shows a medical provider prescribed prescription pain medication for lower back pain and cervical radiculopathy. 

At the June 2010 VA examination, the examiner noted lumbar forward flexion to 90 degrees and total of 270 degrees without painful motion.  X-rays showed old fracture in one thoracic vertebra and lumbar disc herniation with 10 percent loss of height. 

At the August 2014 DBQ VA evaluation, the medical provider noted the diagnosis of degenerative arthritis without reported flare-ups.  The forward flexion of the lumbar spine was to 75 degrees and a total of 200 degrees without objective evidence of painful movement.  There was no muscle spasm or guarding.  The provider noted that the ankylosed spine was limited to the cervical vertebrae. 

At the 2016 Board hearing, the Veteran reported that she had to change how she walks due to her lumbar spine disability.  

At the December 2019 VA examination, the Veteran reported spasms aggravated when standing or sitting too long and chronic pain.  The forward flexion in the lumbar spine was to 60 degrees and a total of 200 degrees with pain noted and causing functional loss.  The examiner confirmed diagnoses of lumbar degenerative disc disease, herniated disc, and old thoracic fracture.  Estimated range of motion for repeat use was forward flexion to 50 degrees and total of 140 and the same with flare-ups.  There were muscle spasms but did not result in abnormal gait or contour.  There was no radiculopathy documented, or ankylosis, or IVDS.  The Veteran was able to do sedentary work with breaks. 

While the Veteran is competent to report symptomatology that she experienced, she has not shown that she has the medical experience or training to identify a specific level of disability of the lumbar spine disability according to the rating criteria, which is a medically complex determination that cannot be based on lay observation alone.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Such competent evidence concerning the nature and extent of the Veteran's degenerative disc disease and additional conditions of lumbar spine has been provided by the VA examiners who have objectively examined her as well as the clinical evidence of record, and these medical findings directly address the criteria under which the Veteran's degenerative disc disease of lumbar spine is evaluated.  The Board finds these clinical records to be competent, objective, and probative evidence of record, and are therefore accorded greater weight than the Veteran's subjective complaints of symptomatology for the lumbar spine disability.  

Under section 4.59, a veteran may be awarded the minimum compensable evaluation available under a given musculoskeletal DC, even if application of that DC would not support a compensable evaluation, where there is evidence of "actually painful, unstable, or malaligned joints."  38 C.F.R. § 4.59; Petitti, 27 Vet. App. at 427.  Section 4.59 does not require medical evidence; it may be satisfied with lay and other non-medical evidence.  Id. at 428.  Thus, pain alone is compensable under section 4.59 for joint disabilities in general.  Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).  Here, the evidence shows the Veteran complained of low back pain and was prescribed medication to treat it.  The X-rays also show an old fracture, albeit with less than 50 percent height loss in the thoracic spine.  The Board finds that an initial 10 percent disability rating is warranted based on lay reports of pain in the low back with some functional impact.  A higher 20 percent disability rating for the lumbar spine is not warranted prior to December 2, 2019 as the evidence does not show that the Veteran experienced forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A higher rating to the next level of 40 percent from December 2, 2019 is also not warranted as the evidence does not support that the Veteran's lumbar spine disability manifested in limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 

Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes.  38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  The Veteran has not had any episodes of acute signs and symptoms due to IVDS specific to the lumbar spine (although the Veteran has had multiple cervical operations) that required bed rest prescribed by a physician and treatment by a physician in the relevant appeal period. 

For the foregoing reasons, the Board finds that an increased initial rating to 10 percent, but no higher, is warranted for the lumbar spine disability.  However, an increased disability rating higher than 10 percent prior to December 2, 2019 or in excess of 20 percent from that date is not warranted.  In denying an increased disability rating for lumbar spine disability, 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

8. Entitlement to an increased rating for skin disability, categorized as dermatitis or intertrigo

The Veteran contends that her skin disability, categorized as dermatitis, is worse than contemplated by the assigned noncompensable rating.  After a thorough review of the evidence, the Board finds that a compensable rating for dermatitis disability diagnosed as intertrigo is not warranted.   

The Veteran's skin disability is categorized under Diagnostic Code 7806 as dermatitis.  At the December 2019 VA examination, the examiner noted that the accurate diagnosis is intertrigo.  

Under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806, a 10 percent rating is warranted for a skin disability covering at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period.  A 30 percent rating is given for skin disabilities affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during a 12 month period.  A 60 percent rating is warranted for skin disabilities affecting more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the prior 12 month period.  Id.  

At the June 2010 VA skin examination, the Veteran reported a rash under her bra line for which she used a topical cream constantly.  The cream was not a corticosteroid or immunosuppressive.  The examiner diagnosed dermatitis that was not active at the examination.  There were no exposed areas and the total affected area was less than 5 percent of the body. 

In a September 2009 lay statement, a colleague of the Veteran recalled that the Veteran told of how she had developed a skin rash under her breasts during deployment in Desert Storm. 

At the 2016 Board hearing, the Veteran reported that the skin rash appears under her breasts, on her chest, hands, face, neck, and head, and that she uses a topical cream daily to mitigate the symptoms. 

At the December 2019 VA examination, the Veteran reported that she had developed a rash under her breasts while deployed in 1991 that primarily occurs with heat or sweat.  The Veteran reported being prescribed topical cream and that she had been told the rash was intertrigo.  The Veteran had a prescription cream that was used six weeks or more but not constantly in the previous 12 months.  The examiner noted no skin condition on any portion of the body area, that the intertrigo was not visible at the time of examination.  

In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor.  Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996).  

38 U.S.C. § 1154(a) requires that the VA give due consideration to all pertinent medical and lay evidence in evaluating a claim to disability benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Kahana v. Shinseki, 24 Vet. App. 428 (2011).

However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge.  Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  

The Board acknowledges that the Veteran asserts she has a skin rash under her breasts, on her chest, hands, face, neck, and head, and while a skin rash is the type of condition that a lay person can identify, the Board finds that this assertion of dermatitis beyond the bra area is inconsistent with other statements in the record and with the medical evidence.  

Accordingly, the Board finds that the Veteran's skin condition diagnosed as intertrigo has not manifested in covering at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period, which would meet the criteria of a 10 percent disability rating under DC 7806.  The Board finds that the Veteran's intertrigo has manifested as intermittent rash under the breasts that is treated with topical cream on less than 5 percent of total body area.  The Board finds that an increased rating beyond noncompensable is not warranted for the Veteran's intertrigo dermatitis disability and the appeal is denied. 

9. Entitlement to increased rating for cervical spine degenerative disc disease

The Veteran contends that her cervical spine disability is worse than contemplated by the assigned 20 percent rating prior to August 11, 2014 and the 40 percent rating from that date.  After a thorough review of the evidence, the Board finds that an increased rating to 30 percent, but no higher, prior to August 11, 2014 is warranted for the Veteran's cervical spine disability, while an increased rating in excess of 40 percent from that date is not warranted. 

The Veteran's cervical spine disability, categorized as degenerative disc disease was rated under Diagnostic Code 5243 at 20 percent prior to August 11, 2014, and at 40 percent under Diagnostic Code 5242 as cervical degenerative joint disease with decompression and fusion from that date.  The Veteran also has associated scars that are separately rated at 10 percent under DC 7800 from April 10, 2009, and separately from that rating at 10 percent under DC 7804 from August 11, 2014. 

As noted, the Veteran's cervical spine disability has been rated under 38 C.F.R. § 4.71a, DC 5242 and DC 5243.  DC 5242 is rated under the General Rating Formula for Diseases and Injuries of the Spine (herein General Formula).  Under the General Formula, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine.  A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  

DC 5243 provides that IVDS is to be rated either under the General Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes (herein IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.  The IVDS Formula provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  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.  Note 1 to DC 5243 provides that "[f]or 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."  

The evidence notes that the Veteran has undergone cervical spine surgery in 2003, 2009 (also reported as 2008), and 2013.  At the June 2010 VA examination, the examiner noted forward flexion of the cervical spine to 30 degrees without evidence of pain on motion.  The examiner noted partial ankylosis of the cervical spine in a neutral position.  The Veteran reported constant low-grade neck pain with flare-ups once weekly for which she took prescription pain medication and that she had not lost time from work in the past 12 months.  There was a mild effect on travel and chore, moderate effect on exercise and recreation and prevention of sports participation due to cervical spine disability.   

At the 2014 DBQ VA cervical evaluation, the examiner noted complete unfavorable ankylosis of the cervical spine. There was cervical forward flexion to 10 degrees without pain noted and same with repeat testing.  There was no spasm or guarding.  There was no IVDS.  The examiner reported two scars that were not tender, joint crossing, or abnormal.  The Veteran reported symptoms of pain, limited range of motion, poor sleep and occasional headache that were chronic and not as flare-ups.  The Veteran reported diminished work capacity due to distraction of pain. April 2013 pre-operative imaging reviewed showed metallic plates and screws in the cervical vertebrae.  Upon review of the March 2014 cervical imaging study, the examiner noted a new development of straightening of cervical lordosis.   

At the December 2, 2019 VA examination of the cervical spine, the examiner noted forward flexion to 10 degrees with pain and estimated 5 degrees on flare-ups or repetitive motion.  There were muscle spasms and guarding to produce an abnormal gait.  The examiner noted no ankylosis and no IVDS.  There were related scars with a separate VA examination.  The functional loss was decreased capacity for looking up, lifting due to the neck, and prolonged sitting or turning of the neck. 

In a recent case at the Court of Appeals for Veterans Claims, the Court decided that analysis of functional loss equivalent to ankylosis is applicable to evaluations for spinal disabilities.  Chavis v. McDonough, U.S. App. Vet. Claims LEXIS 660 (2021).  Here, the examiner in 2010 noted partial ankylosis of the cervical spine only, not extending to the thoracolumbar spine.  The Veteran had been on pain medication and had undergone two cervical surgeries, then a third in 2013.  In a 2015 rating decision, the AOJ assigned a 40 percent disability rating on the examiner in 2014 noting ankylosis of the cervical spine. 

As the evidence demonstrates at least partial ankylosis prior to August 11, 2014 and based on recent determinations that functional loss equivalent to ankylosis should be considered, the Board finds that the Veteran's cervical spine disability more closely approximates the 30 percent rating prior to August 11, 2014.  38 C.F.R. § 4.7.  The 2010 examiner noted the neck was in a favorable position, not unfavorable, which would equate to a 40 percent disability rating. 

The Board finds that a higher rating of 100 percent is not warranted for the Veteran's cervical spine disability, because the evidence does not show ankylosis of the entire spine or its functional equivalent.  The Veteran also has a claim for increased disability rating of the lumbar spine herein where the symptomatology is discussed.  The lumbar spine does not show the functional equivalent of ankylosis of the entire spine.  The more favorable rating assignment is under the General rating formula as opposed to the IVDS schedule under DC 5243.  The next highest level for 40 percent prior to August 11, 2014 would require IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, which the evidence does not support.  As for a rating in excess of 40 percent from that date, 60 percent rating criteria requires IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, which the evidence does not show.  The Board notes that there is evidence of planned cervical surgery in 2013, but the paperwork does not show confirmed convalescent period was taken to support a temporary rating of 100 percent evaluation during that time.  

Accordingly, the Board finds that an increased rating to 30 percent prior to August 11, 2014 is warranted under Diagnostic Code 5242, while an increased in excess of 40 percent from that date is not warranted.  In denying an increased disability rating for cervical spine disability, 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).   

10. Entitlement to increased rating for residual cervical scar in excess of 10 percent

11. Entitlement to increased rating for painful scars in excess of 10 percent

The Veteran contends that her cervical spine disability is worse than contemplated, and as part of her disability, she is service-connected for residual surgical cervical scars at 10 percent from April 2009 and for painful residual cervical surgical scars at 10 percent from August 11, 2014, which are part and parcel of the increased rating claim.  After a thorough review of the evidence, the Board finds that an increased disability rating in excess of 10 percent for residual cervical scars or 10 percent for painful residual cervical scars is not warranted. 

The Veteran is service-connected for two types of scars.  She is service-connected for scars of the neck (not painful or unstable), under DC 7800, rated as 10 percent from April 10, 2009.  She is also separately service-connected for two painful neck scars rated as 10 percent disabling under DC 7804 from August 11, 2014. 

During the pendency of the appeal, the applicable rating criteria for scars were amended, effective August 13, 2018.  VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran.  In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation.  

Under the scar regulations in effect from October 23, 2008 to August 13, 2018, DC 7800 provided for burn scars of the head, face or neck, scars of the head, face or neck due to other causes, or other disfigurement of the head, face, or neck.  The particular criteria set out under DC 7800 provided for a 10 percent rating with one characteristic of disfigurement.  For the next higher rating of 30 percent, the criteria require visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears, cheeks, lips), or; with two or three characteristics of disfigurement.  38 C.F.R. § 4.118, DC 7800.  The characteristics of disfigurement are scar over 5 inches in length; scar at least 0.6 cm wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper- pigmented in an area exceeding six square inches (39 sq. cm); skin texture abnormal (irregular, shiny, atrophic, scaly, etc.) in an area exceeding six square inches (39 sq. cm); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm); skin indurated and inflexible in an area exceeding six square inches (39 sq. cm). 

DC 7801 provided ratings for scars, other than the head, face, or neck, that were deep and nonlinear.  Scars covering an area or areas exceeding 6 square inches (39 square centimeters) were rated as 10 percent disabling.  Higher ratings were warranted for larger areas affected by scarring.  Note (1) to DC 7801 provided that a deep scar was one associated with underlying soft tissue damage.  38 C.F.R. § 4.118, DC 7801 (in effect from October 23, 2008 to August 13, 2018). 

DC 7802 provided ratings for scars, other than the head, face, or neck, that were superficial or that did not cause limited motion.  Superficial scars that did not cause limited motion, in an area or areas of 144 square inches (929 square centimeters) or greater, were rated as 10 percent disabling.  Note (1) to DC 7802 provided that a superficial scar was one not associated with underlying soft tissue damage.  38 C.F.R. § 4.118, DC 7802 (in effect from October 23, 2008 to August 13, 2018). 

DC 7804 provided that one or two scars that were unstable or painful were rated as 10 percent disabling. Higher ratings were assigned when more scars were involved.  Note (1) to DC 7804 provided that an unstable scar was one where, for any reason, there was frequent loss of covering of skin over the scar.  38 C.F.R. § 4.118, DC 7804 (in effect from October 23, 2008 to August 13, 2018). 

DC 7805 provided that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under DCs 7800-04 under an appropriate DC. 38 C.F.R. § 4.118, DC 7805 (in effect from October 23, 2008 to August 13, 2018). 

Under the scar regulations in effect after August 13, 2018, DC 7800 remained the same.

DC 7801 provides ratings for scars other than the head, face, or neck, that are associated with underlying soft tissue damage, which is not present in this case.  38 C.F.R. § 4.188, DC 7801 (effective August 13, 2018).

DC 7802 provides ratings for scars, other than the head, face, or neck, that are not associated with underlying soft tissue damage.  Scars that are in area or areas of 144 square inches (929 sq. cm.) or greater are rated as 10 percent disabling.  38 C.F.R. § 4.188, DC 7802 (effective August 13, 2018).  This DC is also not applicable in this case.  

DC 7805 provides that scars and other effects of scars evaluated under 7800-7804 should evaluate any disabling effects not considered under DCs 7800-7804.  DC 7804 provides for a 10 percent disability rating for one or two scars that are unstable or painful.  Higher ratings are warranted when more scars are involved.  38 C.F.R. § 4.188, DC 7804 (effective August 13, 2018). 

The Veteran has had three cervical surgeries, in 2003, 2009, and 2013. 

At the August 2014 VA examination, the examiner reported two scars that were not tender, joint crossing, or abnormal.  They were marked as painful and/or unstable on the pre-populated form.  The evidence does not show the scars are unstable.  

At the December 2, 2019 VA examination for scars, the examiner noted that the Veteran reported her scars were painful.  The Veteran had anterior neck scars related to cervical surgeries.  There were 2 painful scars of the neck not due to burns, and not with frequent loss of covering of the skin.  The scars measured 3 x 0.3 cm and 1.5 x 0.2 cm.  Both scars exhibited surface contour depressed on palpation and tender to palpation.  There was no limitation of function.  

After having considered all of the evidence of record, the Board finds that a higher rating in excess of 10 percent is not warranted for the Veteran's scars rated under DC 7800.  Similarly, a rating higher than 10 percent is not warranted for the Veteran's two painful scars, rated under DC 7804.  

The evidence supports that the Veteran has two painful scars of the neck that are residuals of surgery and not due to burns.  The scars are reported to be painful and show surface contour depressed on palpation.  The scars are not disabling.  In order to warrant a higher rating under DC 7804, the evidence must show that there are three or four scars that are unstable or painful.  The evidence does not show this.  In order to receive the next higher rating for two residual scars of the neck under DC 7800, the scars must have visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears, cheeks, lips), or; with two or three characteristics of disfigurement.  The evidence does not show these criteria apply here. 

Accordingly, the appeal for an increased rating for residual cervical scars in excess of 10 percent from April 10, 2009 and for painful residual cervical scars from August 11, 2014 is denied.  

12. Entitlement to increased rating for bilateral plantar fasciitis 

The Veteran contends that her bilateral plantar fasciitis disability is worse than contemplated by the assigned 10 percent rating prior to December 2, 2019 and the 50 percent rating from that date.  After a thorough review of the evidence, the Board finds that an increased rating to 30 percent, but no higher, for bilateral plantar fasciitis disability is warranted prior to December 2, 2019. 

The Veteran's plantar fasciitis disability is rated by analogy under DC 5299-5276 at 10 percent prior to December 2, 2019 and 50 percent from that date.  As the other DCs pertaining to the feet do not provide a disability rating greater than 50 percent nor has the Veteran been diagnosed with separate conditions related to these DCs, the Board finds that the maximum benefit has been applied from December 2, 2019 for the Veteran's bilateral plantar fasciitis disability and will analyze the period prior to that.  AB v. Brown, 6 Vet. App. 35, 38 (1993).   

Under Diagnostic Code 5276, a noncompensable rating is assigned for mild acquired flatfoot with symptoms relieved by built-up shoe or arch support; a 10 percent is assigned for moderate acquired flatfoot with weight -bearing line over or medial to great toe, inward bowing of the tendo achilles, pain on manipulation and use of the feet, bilateral or unilateral; a 20 percent is assigned for severe acquired flatfoot that is unilateral with objective evidence of marked deformity (pronation, abduction.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; a 30 percent is assigned for severe acquired flatfoot that is unilateral with objective evidence of marked deformity (pronation, abduction.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; a 30 percent is assigned for unilateral pronounced acquired flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliance; and a 50 percent is assigned for bilateral pronounced acquired flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliance.  38 C.F.R. § 4.71(a), Diagnostic Code 5276.  

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021.  85 Fed. Reg. 230 (Nov 30, 2020).  These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question.  38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change.  If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change.  38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327.  Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021.  The criteria that is more favorable to the Veteran will be applied.  Here, the Veteran has a 50 percent disability rating from December 2, 2019 and that is more favorable as explained next, accordingly, the Board will not disturb that assignment. 

Prior to the regulatory change, plantar fasciitis was rated by analogy and did not have a listed diagnostic code.  As of February 7, 2021, under the amended criteria, the Diagnostic Code 5269 was created to rate plantar fasciitis.  Under Diagnostic Code 5269, a 10 percent is assigned for bilateral or unilateral; a 20 percent is assigned for unilateral no relief from both non-surgical and surgical treatment; and a 30 percent is assigned for bilateral no relief from both non-surgical and surgical treatment.  Note 1 states that actual loss of use of the foot should be rated as 40 percent.  Note 2 states that if the veteran has been recommended for surgical intervention, but is not a surgical candidate, then it should be evaluated under the 20 percent or 30 percent criteria, whichever is applicable. 

At the June 2010 VA foot examination, the Veteran reported burning in the feet and spasms in the toes with weekly flare-ups resulting in reduce mobility.  The examiner noted callouses bilaterally and tenderness to palpation on the heel. 

At the August 2014 VA DBQ for feet evaluation, the Veteran reported wearing orthotics since 1992.  The examiner noted tenderness on palpation bilaterally and diagnosed bilateral plantar fasciitis. 

A September 2014 CAPRI note documented that a medical provider debrided bilateral callouses on the feet and the left arch was tender to palpation. 

At the 2016 Board hearing, the Veteran reported callouses on the feet as well as swelling and that she wore orthotics. 

For the period prior to December 2, 2019, the Veteran's bilateral plantar fasciitis manifested in callosities with pain on manipulation and use accentuated but not in marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances.  Accordingly, the Board finds that an increased disability rating for bilateral plantar fasciitis disability to 30 percent, but no higher, prior to December 2, 2019 is warranted.  

13. Entitlement to an increased rating in excess of 50 percent for obstructive sleep apnea with asthma

The Veteran contends that her sleep apnea with asthma disability is worse than contemplated by the assigned 50 percent rating since the date of entitlement of April 10, 2009.  After a thorough review of the evidence, the Board finds that a disability rating in excess of 50 percent is not warranted for sleep apnea with asthma.    

The Veteran's sleep apnea with asthma disability is rated at 50 percent from April 10, 2009 under DC 6847.  The Veteran was previously rated solely for asthma under DC 6602.  In a June 2020 rating decision, the AOJ granted entitlement to service connection for sleep apnea.  The rating schedule for respiratory conditions does not permit coexisting respiratory conditions to be combined with each other, instead the dominant condition is used to assign the Diagnostic Code.  38 C.F.R. § 4.96.    

Under DC 6847, a noncompensable evaluation is assigned for asymptomatic sleep apnea with documented sleep disorder breathing.  A 30 percent evaluation is assigned for sleep apnea with persistent daytime hypersomnolence.  A 50 percent evaluation is assigned for sleep apnea requiring the use of a breathing assistance device such as a CPAP machine.  A 100 percent evaluation is assigned for sleep apnea with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requiring a tracheostomy.  38 C.F.R. § 4.97.  

Under DC 6602 for asthma, a 10 percent rating is assigned for asthma for Forced Expiratory Volume in one second (FEV-1) of 71 to 80 percent of predicted value, or the ratio of FEV-1 to Forced Vital Capacity (FVC) (FEV-1/FVC) of 71 to 80 percent, or intermittent inhalational or oral bronchodilator therapy.  38 C.F.R. § 4.97, Diagnostic Code 6602.  A 30 percent rating is assigned for FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent or daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication.  A 60 percent rating is assigned for an FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least 3 times per year) course of systemic (oral or parenteral) corticosteroids.  A maximum 100 percent rating is assigned under DC 6602 for bronchial asthma with an FEV-1 of less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. See 38 C.F.R. § 4.97, DC 6602.   

At the April 2010 VA examination for asthma, the examiner noted no hospitalizations due to asthma.  The examiner noted there was no cor pulmonale or chronic respiratory failure.  The Veteran reported asthma attacks monthly.  The Veteran exhibited FEV-1 of 83 percent predicted and FEV1/FVC at 78 percent.

At the June 2010 VA examination for sleep apnea, the examiner confirmed a diagnosis of sleep apnea and that the Veteran used a CPAP.  The examiner noted there was no cor pulmonale or chronic respiratory failure.

At the December 2019 VA examination for respiratory conditions, the examiner noted daily inhalational bronchodilator therapy and no asthma attacks with respiratory failure in the previous 12 months.  The Veteran exhibited FEV-1 of 77 percent predicted and FEV1/FVC at 106 percent, the examiner noted that FEV1 was a more accurate assessment for this Veteran.  The examiner noted no impact on work.  The Veteran complained of wheezing and shortness of breath.  The Veteran used an albuterol inhaler, no steroidal treatment and reported no emergency room visits pertaining to asthma.  The Veteran's chest X-ray from November 2019 was normal. 

At the December 2019 VA examination for sleep apnea, the examiner noted CPAP use.  The Veteran complained of daytime sleepiness.  There was no cor pulmonale, tracheostomy, or chronic respiratory failure. 

Notably, the evidence does not show the Veteran manifested the criteria for a higher 60 percent under DC 6602, of an FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least 3 times per year) course of systemic (oral or parenteral) corticosteroids.  Similarly, there is no evidence that the Veteran's asthma manifested an FEV-1 of less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications, such as are necessary for the maximum 100 percent rating under DC 6602.  See 38 C.F.R. § 4.97, DC 6602. 

In this case, the Board notes a thorough review of the competent evidence of record, including VA treatment records, does not reflect the Veteran has chronic respiratory failure, nor is there evidence of cor pulmonale.  Further, the record does not reflect a tracheotomy has been required due to sleep apnea.  Consequently, the Veteran is not entitled to rating in excess of 50 percent under DC 6847 during this period of the appeal. 

Moreover, after review of the competent evidence of record, the Board finds that the weight of the evidence is against finding an even higher rating than 50 percent under other applicable criteria under 38 C.F.R. § 4.97, particularly DC 6602 for asthma.  Accordingly, the appeal for an increased rating in excess of 50 percent for sleep apnea with asthma disability is denied. 

14. Entitlement to increased rating for gastroesophageal reflux disease (GERD)

The Veteran contends that her GERD disability is worse than contemplated by the assigned 10 rating.  After a thorough review of the evidence, the Board finds that an increased rating in excess of 10 percent for GERD disability is not warranted.   

The Veteran's GERD disability is rated at 10 percent from April 10, 2009 under DC 7399-7346.  

The Veteran's GERD is rated analogous to hiatal hernia under DC 7346 which provides that a 10 percent evaluation is warranted when there is at least one recurring attack of typical severe abdominal pain in the past year.  A 30 percent evaluation is warranted when there is persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  A 60 percent evaluation contemplates a level of impairment which includes symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.  38 C.F.R. § 4.114, DC 7346.  

At the April 2010 VA examination for GERD, the Veteran reported symptoms of gas, regurgitation, and reflux while lying flat in episodes that occurred weekly and would last up to one hour.  The was reported history of heartburn/pyrosis daily and regurgitation.  The examiner noted no signs of anemia or history of melena or significant weight loss or malnutrition.  

A March 2014 CAPRI note documented that the Veteran had no problems swallowing.   

At the August 2014 DBQ VA evaluation, the medical provider noted flare-ups 3 to 4 times per week that could last 2 to 3 days including symptoms of reflux that will disturb her sleep.  Reported symptoms included persistently recurrent epigastric distress, dysphagia, reflux, regurgitation, substernal pain, sleep disturbance 4 times per year or more, nausea 4 times or more per year lasting less than one day, vomiting 4 times or more per year.    

An August 2018 CAPRI note documented complaints of dysphagia that were attributed not to GERD, but to the cervical spine surgery.  In September 2018, the Veteran complained of projectile vomiting, dysphagia, and food coming out her nose if lying flat.  In February 2019, the Veteran had no problems swallowing.  An August 2018 CAPRI note records that the Veteran reported a prior anemia problem, but the evidence does not show that it occurred during the period on appeal as related to GERD.  

At the December 2019 VA examination, the Veteran reported symptoms of pyrosis, reflux, regurgitation, substernal pain, sleep disturbance 4 times per year or more lasting less than one day, nausea 4 times or more per year lasting less than one day, vomiting 4 times or more per year lasting less than one day.  The examiner reported no esophageal stricture.  The examiner noted no impact on the Veteran's ability to work.  

The Veteran's service-connected disability has manifested in symptoms such as persistent epigastric distress, nausea, vomiting, pyrosis, substernal arm pain, but not melena, moderate anemia, or material weight loss, and has not been productive of considerable or severe impairment of health.   

In this context, the Board has considered whether rating the Veteran's service-connected disability under another diagnostic code would result in a higher rating; however, review of the regulations for evaluation of digestive conditions discloses no other diagnostic code that more appropriately reflects the disability at issue.  

For the foregoing reasons, the Board finds the Veteran's service-connected GERD does not warrant an increased rating in excess of the assigned 10 percent rating.  In reaching these determinations, the Board has considered the benefit of the doubt doctrine, where applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, DC 7399-7346.  

REASONS FOR REMAND

1. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded.

2. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded.

3. Entitlement to service connection for right hand tendonitis to include trigger finger is remanded.

4. Entitlement to service connection for left hand tendonitis to include trigger finger is remanded.

5. Entitlement to service connection for peripheral vascular disease claimed as swelling of extremities is remanded.

6. Entitlement to service connection for irritable bowel syndrome is remanded.

7. Entitlement to service connection for periodic limb movement disorder claimed as restless legs syndrome is remanded.

The 2018 Board remand directed the AOJ to obtain VA examinations and related medical opinions on service connection for the above issues.  The directive included a request for an opinion on secondary service connection to a service-connected disability.  The AOJ obtained medical examinations and opinions in December 2019.  The examiner confirmed diagnoses for bilateral lower extremity peripheral neuropathy; right and left hand trigger fingers; swelling of extremities diagnosed as peripheral vascular disorder; irritable bowel syndrome; and periodic limb movement disorder claimed as restless legs syndrome.  The opinions included secondary service connection as to cervical spine disability but not for any other service-connected disability.  The AOJ requested addendum opinions and received them in June 2020, but the examiner repeated the same information and did not include opinions on whether the above disabilities were proximately due to or aggravated by a service-connected disability other than cervical spine disability.  In particular for the trigger finger/tendonitis claim, the examiner should opine whether it is related to or aggravated by the Veteran's service-connected carpal tunnel syndrome. 

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's diagnosed disorders below are at least as likely as not related to or proximately due to ANY service-connected disability or aggravated beyond its natural progression by ANY service-connected disability. 

(a.) Bilateral lower extremity peripheral neuropathy

(b.) Bilateral hand tendonitis to include trigger fingers  the examiner is asked to opine on secondary service connection to ANY disability but with specific reference to carpal tunnel syndrome

(c.) Peripheral vascular disease, claimed as swelling of extremities 

(d.) Irritable bowel syndrome

(e.) Periodic limb movement disorder claimed as restless legs syndrome 

 

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Miller, 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.