Citation Nr: 22014483
Decision Date: 03/14/22	Archive Date: 03/14/22

DOCKET NO. 16-57 941
DATE: March 14, 2022

ORDER

Entitlement to a compensable rating for left shin splints is dismissed.

Entitlement to a compensable rating for right shin splints is dismissed.

Entitlement to a compensable rating for eczema of the right hand is dismissed.

Entitlement to a compensable rating for hemorrhoids is dismissed.

Entitlement to a compensable rating for pseudofolliculitis barbae (PFB) is dismissed.

Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is granted.

Entitlement to service connection for tinnitus, to include as secondary to service-connected headache disability, is denied.

Entitlement to an effective date prior to February 1, 2012 for the award of service connection for bilateral pes planus is dismissed. 

Restoration of the 40 percent disability rating for arthritis with a history of patellofemoral syndrome and partial medial meniscectomy of the right knee (hereinafter right knee disability), effective December 1, 2016, is granted, subject to the regulations governing the payment of monetary awards.

Entitlement to a 50 percent, but no higher, rating for headaches is granted, subject to the regulations governing the payment of monetary awards.

Entitlement to a 10 percent, but no higher, rating for sinusitis is granted, subject to the regulations governing the payment of monetary awards.

Entitlement to a rating in excess of 10 percent for rhinitis is denied.

Entitlement to a rating in excess of 30 percent for bilateral pes planus is denied.

Entitlement to separate noncompensable, but no higher, rating from December 24, 2014 for status post right foot second digit hammer toe repair is granted, subject to the regulations governing the payment of monetary awards.

Entitlement to a rating in excess of 30 percent for cervical spine degenerative disc disease (hereinafter cervical spine disability) is denied.

Entitlement to an initial compensable rating for a surgical scar of the left knee is denied.

Entitlement to an initial compensable rating for a surgical scar of the right knee is denied.

Entitlement to an initial compensable rating for a postoperative right inguinal hernial repair scar is denied.

Entitlement to separate noncompensable, but no higher, rating from December 24, 2014 for a postoperative right foot second digit hammer toe repair scar is granted, subject to the regulations governing the payment of monetary awards.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from December 24, 2014 is granted, subject to regulations governing the payment of monetary awards.

Entitlement to an effective date of December 24, 2014, but no earlier, for Dependents' Educational Assistance (DEA) benefits is granted, subject to regulations governing the payment of monetary awards.

Entitlement to special monthly compensation (SMC) at the (s) rate from June 18, 2015 to June 5, 2017 and from August 1, 2018 is granted, subject to regulations governing the payment of monetary awards.

Entitlement to SMC at the (s) rate prior to June 18, 2015 is denied.

REMANDED

Entitlement to service connection for Barrett's esophagus with gastroesophageal reflux disease (GERD) and hiatal hernia, to include as secondary to service-connected postoperative right inguinal repair, is remanded. 

Entitlement to a rating in excess of 20 percent for lumbar spine degenerative disc disease and degenerative joint disease with scoliosis (hereinafter lumbar spine disability) is remanded.

Entitlement to an initial rating in excess of 10 percent for left lower extremity sciatica is remanded. 

Entitlement to an initial rating in excess of 10 percent for right lower extremity sciatica is remanded. 

Entitlement to a compensable rating for postoperative right inguinal hernia repair is remanded.

Entitlement to a rating in excess of 10 percent for arthritis with a history of patellofemoral syndrome of the left knee prior to June 6, 2017 is remanded.

Entitlement to a compensable rating for limitation of extension of the left knee prior to June 6, 2017 is remanded.

Entitlement to a separate rating for limitation of extension of the left knee from August 1, 2018 is remanded. 

Entitlement to a rating in excess of 30 percent for status post total left knee arthroplasty from August 1, 2018 is remanded.

Entitlement to a temporary total rating based on convalescence in association with left knee surgery on March 27, 2015, is remanded.

Entitlement to a rating in excess of 40 percent for a right knee disability is remanded.

FINDINGS OF FACT

1. In April 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeals seeking higher ratings for bilateral shin splints, eczema of the right hand, hemorrhoids, and PFB was requested.

2. The Veteran's service-connected rhinitis, sinusitis, and PTSD have proximately caused his sleep apnea.

3. The weight of the evidence of record is against finding that the Veteran has had tinnitus at any time during or approximate to the pendency of the claim.

4. The claim for an earlier effective date for service connection for bilateral pes planus is a freestanding earlier effective date claim. The Veteran has not contended that the rating decision that initially granted service connection and assigned an effective date for bilateral pes planus was the product of clear and unmistakable error (CUE).

5. The evidence fails to demonstrate improvement in the severity of the Veteran's right knee disability. 

6. The evidence is in approximate balance that the Veteran has experienced migraines manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

7. The Veteran's sinusitis has been characterized by three to six non-incapacitating episode of sinusitis per year characterized by headaches, pain, and purulent discharge and crusting; and with no incapacitating episodes, no radical surgery, and no constant sinusitis. 

8. The Veteran's rhinitis has been characterized by greater than 50 percent obstruction of nasal passage on both sides without polyps.

9. The Veteran's bilateral foot pes planus has manifested in severe symptoms, with accentuated pain on manipulation and use of the feet and extreme tenderness of the plantar surfaces of the feet; with no evidence of marked pronation bilaterally; and no evidence of marked inward displacement and severe spasm of the Achilles' tendon on manipulation.

10. The Veteran is status post hammer toe repair of the second digit on the right foot.

11. The Veteran's cervical spine disability has been manifested by forward flexion at most limited to 15 degrees, without evidence of favorable or unfavorable ankylosis.

12. The Veteran's left knee scar is 18.0 by 0.4 centimeters, without pain, and is not unstable. 

13. The Veteran's right knee scar is 2.0 by 0.2 centimeters, without pain, and is not unstable. 

14. The Veteran's right inguinal hernia repair scar is 9.0 by 0.2 centimeters, without pain, and is not unstable. 

15. The Veteran's postoperative right foot second digit hammer toe repair scar is 6.0 by 0.1 centimeters, without pain, and is not unstable. 

16. The Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment consistent with his education and industrial background.

17. The Veteran met basic eligibility for DEA on December 24, 2014, the date he has been awarded TDIU.

18. Based on the Board's award of TDIU due to solely for the Veteran's service-connected posttraumatic stress disorder (PTSD) from June 18, 2015, the Veteran had a single service-connected disability rated at 100 percent plus additional service-connected disabilities having a combined rating of 60 percent from June 18, 2015 to June 5, 2017 and from August 2, 2018.

19. Prior to June 18, 2015, the evidence does not show that the Veteran would be entitled to a total rating based on a single disability, and the Veteran did not have one service-connected disability rated as 100 percent during that period. 

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeals seeking higher ratings for bilateral shin splints, eczema of the right hand, hemorrhoids, and PFB have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2021).

2. The criteria to establish service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2021). 

3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309(a), 3.310 (2020).

4. The claim for an effective date prior to February 1, 2012 for the award of service connection for bilateral pes planus is dismissed. 38 U.S.C. § 7104(b) (2012); 38 C.F.R. § 20.1103 (2021); Rudd v. Nicholson, 20 Vet. App. 296 (2006).

5. The reduction in the rating for a right knee disability from 40 percent to 10 percent effective December 1, 2016 was improper and restoration of the 40 percent rating is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5260, 5261 (2021).

6. The criteria for a 50 percent, but no higher, rating for headaches have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8100 (2021).

7. The criteria for a rating of 10 percent, but no higher, for sinusitis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.97, Diagnostic Code 6513 (2021).

8. The criteria for a rating in excess of 10 percent for rhinitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.97, Diagnostic Code 6522 (2021).

9. The criteria for a rating in excess of 30 percent for the Veteran's service-connected bilateral pes planus are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2021).

10. From December 24, 2014, the criteria for a separate noncompensable, but no higher, rating for status post hammer toe repair of the second digit on the right foot are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5282 (2021).  

11. The criteria for a rating in excess of 30 percent for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5242 (2021).

12. The criteria for an initial compensable rating for left knee scar are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Codes 7801-7805 (2021).

13. The criteria for an initial compensable rating for right knee scar are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Codes 7801-7805 (2021).

14. The criteria for an initial compensable rating for right inguinal hernia repair scar are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Codes 7801-7805 (2021).

15. From December 24, 2014, the criteria for an initial compensable, but no higher, rating for a postoperative right foot second digit hammer toe repair scar are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Codes 7801-7805 (2021).

16. From December 24, 2014, the criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 4.18, 4.19 (2021).

17. The criteria for an effective date of December 24, 2014 for the award of basic eligibility for Dependents' Educational Assistance benefits are met. 38 U.S.C. §§ 3500, 3501, 3510 (2012); 38 C.F.R. § 21.3021 (2021). 

18. The criteria for SMC at the housebound rate from June 18, 2015 to June 5, 2017 and from August 2, 2018 have been met. 38 U.S.C. §§ 1114(s), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.350(i) (2021).

19. The criteria for SMC at the housebound rate prior to June 18, 2015 have not been met. 38 U.S.C. §§ 1114(s), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.350(i) (2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from July 1973 to April 1979 and April 1980 to May 1995. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2015, December 2015, September 2016, August 2017, August 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). 

This case was previously before the Board in April 2019 when the Board remanded it for further development. 

In a July 2020 rating decision, the Agency of Original Jurisdiction (AOJ) awarded entitlement to service connection for posttraumatic stress disorder (PTSD), duodenitis, bilateral hallux valgus, and right index finger arthritis. These claims were all remanded in the April 2019 Board decision. As the AOJ granted the benefits sought on appeal, these matters are no longer before the Board and will not be discussed further herein.

In the July 2020 rating decision, the AOJ also increased the Veteran's rating for his service-connected headaches from to 30 percent effective January 9, 2016, the rating for his service-connected rhinitis to 10 percent effective January 19, 2016, and the rating for his service-connected cervical spine disability to 30 percent effective January 9, 2016. As these increases did not satisfy the appeals in full, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). 

In addition, in the July 2020 rating decision, the AOJ awarded entitlement to DEA benefits effective June 18, 2015. As entitlement to DEA benefits prior to June 18, 2015 is inextricably intertwined with the award of TDIU herein effective December 24, 2014, the Board will address entitlement to an effective date prior to June 18, 2015 for DEA benefits herein. 

Lastly, in April 2019, VA received a written statement from the Veteran indicating that he wished to withdraw his claims seeking higher ratings for bilateral shin splints, eczema of the right hand, hemorrhoids, and PFB. The Board acknowledges that the AOJ addressed these issues in a July 2020 supplemental statement of the case. However, per 38 C.F.R. § 20.205(b)(3), a statement withdrawing an appeal is effective upon receipt by the Board. As such, the April 2019 correspondence from the Veteran effectively withdrew the Veteran's appeal of these issues. 

Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2021).

The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384 (1993).

Dismissed Appeals

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. 

In the present case, in April 2019, VA received a written statement from the Veteran indicating that he wished to withdraw his claims seeking higher ratings for bilateral shin splints, eczema of the right hand, hemorrhoids, and PFB. As the Veteran has knowingly and voluntarily withdrawn the appeals of the issues in accordance with 38 C.F.R. § 19.55, there remains no allegation of error of fact or law for the Board to address. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. 

Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131.

Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d).

Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). Tinnitus has been interpreted as such a disease. To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b).

Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of 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) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 

1. Sleep Apnea

The Veteran has obstructive sleep apnea. See November 2019 VA examination report. He is service connected for rhinitis, sinusitis, and PTSD, disabilities that the record reflects have caused his sleep apnea. Accordingly, the first and second Wallin elements are met.

In September 2017, Dr. M.B. a private physician, opined that the Veteran's obstructive sleep apnea is caused and permanently aggravated by his rhinitis, sinusitis, and PTSD. See September 2017 Sleep Apnea Disability Benefits Questionnaire. In support of the opinion, Dr. M.B. cited to medical literature showing a relationship between rhinitis and sleep apnea and psychiatric symptoms and sleep apnea, including the medications the Veteran takes for those service-connected disabilities. Id. at 3. In addition, Dr. M.B. noted that she interviewed the Veteran, and she provided a detailed discussion of the medical record. 

The Board places great weight of probative value on the opinion of Dr. M.B. as the opinion is consistent with the record and reflects consideration of the Veteran's medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).  Accordingly, service connection for sleep apnea is granted. See 3.310(a).

2. Tinnitus

The Veteran contends he has tinnitus that is secondary to his service-connected headache disability. See January 2016 VA Form 21-526, at 9. 

The Board concludes that the Veteran does not have a current diagnosis of tinnitus and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d).

A review of the record illustrates there is no diagnosis or reports of tinnitus or ringing in the ears during the appeal period or recent to his filing of the claim in January 2016. There is no record of treatment for or reports of tinnitus after service. The Veteran was afforded a VA audiological examination in July 2016. The examination report reflects that the Veteran did not report having recurrent tinnitus, and there is a second notation in the examination report that the Veteran "repeatedly denied tinnitus." See July 2016 VA Examination Report, at 5. Furthermore, a July 2018 VA treatment record reflects that the Veteran did not have tinnitus. See July 2018 CAPRI Record, at 221. 

The existence of a current disability is the cornerstone of a claim for service connection and VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, the evidence does not reflect that the Veteran has had tinnitus or ringing in the ears at any point during the appeal period. Therefore, the Board cannot grant his claim under any theory of entitlement.

The Veteran is competent to report observable symptomatology of having tinnitus as ringing in the ears is a symptom capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Considering the Veteran's denial of tinnitus at the July 2016 VA examination, and a review of the complete record showing no other complaints of tinnitus, the Board finds the Veteran's January 2016 claim for compensation for tinnitus not to be a credible statement of having tinnitus and gives the statement little probative weight. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). The Board finds the other evidence of record, including the Veteran's competent statement at the VA examination that he did not have tinnitus, to be entitled to more probative weight. 

The Board finds that the evidence is against a finding that the Veteran currently has tinnitus, had tinnitus at any point during the appeal period, or had tinnitus in close proximity to the appeal period. The Board has considered the benefit-of-the-doubt rule; however, without competent and credible evidence of a current tinnitus disability, the benefit-of-the-doubt rule is not for application here. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). As such, service connection for tinnitus is denied.

Earlier Effective Date  Bilateral Pes Planus

The Veteran generally contends he is entitled to an earlier effective date for the award of the 30 percent rating for his service-connected bilateral pes planus. In his February 2016 notice of disagreement, the Veteran checked the box for disagreement with the effective date and evaluation of disability for bilateral pes planus. He has not made any specific contentions about the effective date. See February 2016 VA Form 21-0958, Notice of Disagreement (NOD), at 1. 

In a September 2012 rating decision, the AOJ awarded entitlement to service connection for bilateral pes planus and assigned a 30 percent rating, effective September 1, 2012. The Veteran did not file an appeal within the applicable time contesting the effective date of the award of service connection. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 19.20, 19.21, 19.52, 20.1103. 

Rather, in March 2013, the Veteran filed an increased rating claim for his bilateral pes planus, which the AOJ denied in a July 2014 rating decision. The Veteran again did not file an appeal within the applicable time contesting assigned rating. Id. Instead, the Veteran filed an increased rating claim for his bilateral pes planus in December 2014, which the AOJ denied in a May 2015 rating decision. In a February 2016 NOD, the Veteran appealed the May 2015 rating decision and indicated he was entitled to an increased rating and an earlier effective date for bilateral pes planus. Neither the Veteran nor his former attorney has alleged CUE in the September 2012 rating decision that assigned an effective date for the grant of service connection for bilateral pes planus.

As the Veteran did not contest the effective date of the grant of service connection for bilateral pes planus in a timely manner, the Board cannot adjudicate this earlier effective date claim as it represents a freestanding claim for an earlier effective date, which is not permitted. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The claim for an earlier effective date is therefore dismissed for lack of jurisdiction. See 38 U.S.C. § 7105(d)(5). Should any higher rating be granted in the future for this condition, any assigned effective date can thereafter be appealed.

Rating Reduction  Right Knee Disability

The Veteran contends the reduction in the rating from 40 percent to 10 percent effective December 1, 2016 for his service-connected right knee disability was improper. See September 2016 NOD. 

In a September 2014 rating decision, the AOJ awarded a 100 percent evaluation based on surgical or other treatment necessitating convalescence for the Veteran's right knee disability from April 25, 2014 to June 30, 2014, and the AOJ assigned a 10 percent rating effective July 1, 2014. In a claim received in October 2014, the Veteran requested an increased rating in excess of 10 percent for his right knee disability.

In a December 2014 rating decision, the AOJ increased the Veteran's rating for his right knee disability under hyphenated Diagnostic Code 5260-5261 effective October 14, 2014. The Veteran did not file a claim for an increase in the rating for his service-connected right knee disability after the December 2014 rating decision; however, in a September 2016 rating decision, the AOJ reduced the rating for the Veteran's right knee disability to 10 percent effective December 1, 2016. 

Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic code indicates that the Veteran's knee disability is rated, by analogy, under the criteria for limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261).

Under Diagnostic Code 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees, a 20 percent rating is warranted where flexion is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a.

Under Diagnostic Code 5261, a 10 percent rating is warranted where extension of the knee is limited to 10 degrees, a 20 percent rating is warranted where extension is limited to 15 degrees, a 30 percent rating is warranted where extension is limited to 20 degrees, a 40 percent rating is warranted where extension is limited to 30 degrees, and a 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a. 

In rating reductions, when VA contemplates reducing an evaluation for a service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance. 38 C.F.R. § 3.105(e). As enumerated in 38 C.F.R. § 3.105(e), where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. In addition, the beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The beneficiary also will receive notification that he or she will have an opportunity for a pre-determination hearing, provided that the request is received within 30 days from the date of the notice. 38 C.F.R. § 3.105(i). Thereafter, a final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. See 38 C.F.R. §§ 3.105(e); 3.500(r).

In this case, the Board finds that the procedural requirements of 38 C.F.R. § 3.105(e) were properly carried out by the AOJ. A May 2015 rating decision proposed to reduce the rating for the Veteran's service-connected right knee disability from 40 percent to 10 percent. In a May 2015 letter, the AOJ informed the Veteran of the proposed rating reduction and attached a copy of the May 2015 rating decision which set forth all the material facts and reasons for the reduction. The letter also informed the Veteran that he could submit additional evidence to show that the change should not be made, and that if no additional evidence was received within 60 days, his disability rating would be reduced. The Veteran was also advised that he could request a hearing to present evidence or argument on any point in his claim, and that he had 30 days to request such a hearing in order to have his benefits continued at the prior rate; if a hearing was requested after 30 days, the AOJ would continue with the proposed action. The Veteran did not request a hearing to present evidence or argument. The AOJ then issued the September 2016 rating decision implementing the proposed reduction effective December 1, 2016. 

Prior to the reduction, the 40 percent rating for the Veteran's right knee disability had been in effect since October 2014. Thus, the rating had been in effect for less than five years. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. VA benefit recipients may be afforded greater protections under 38 C.F.R. § 3.344(a) and (b), which set forth the criteria for reduction of ratings in effect for five years or more, which stipulate that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction and prohibit a reduction on the basis of a single examination. Brown v. Brown, 5 Vet. App. 413, 417-18 (1995).  

However, with respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in a disability will warrant a rating reduction. 38 C.F.R. § 3.344(c). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-21; 38 C.F.R. § 3.344(c).

In considering whether a reduction was proper, the Board must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated sustained, actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. VA is required to establish, by the evidence, that a rating reduction is warranted. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). 

"When any change in evaluation is made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examination or use of descriptive terms." 38 C.F.R. § 4.13.

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.

A review of the claims file indicates that the decision to reduce the Veteran's rating from 40 percent to 10 percent for his right knee disability was predicated on an April 2015 VA examiner's finding of flexion to 120 degrees with pain and full extension with pain during initial range of motion testing. The AOJ indicated in the September 2016 rating decision that a 10 percent rating was warranted since the Veteran demonstrated painful motion of the knee, so a compensable rating was warranted pursuant to 38 C.F.R. § 4.59. The AOJ noted that a higher rating was not warranted as the Veteran did not have flexion limited to less than 45 degrees or extension limited to more than 10 degrees. Furthermore, the AOJ indicated that it considered the provisions of 38 C.F.R. §§ 4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, lack of endurance, incoordination, and flare-ups per DeLuca v. Brown, 8 Vet. App. 202 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  

In the December 2014 rating decision, the AOJ originally assigned the Veteran's 40 percent rating based on an October 2014 VA examiner's finding of extension limited to 35 degrees. The AOJ also noted that the Veteran used a brace and cane for ambulation.  Therefore, the AOJ increased the Veteran's rating for his right knee disability from 10 percent to 40 percent based on extension limited to 35 degrees.  

While the Board notes that at the April 2015 VA examination the Veteran had flexion to 120 degrees with pain and full knee extension with pain upon initial range of motion testing, the examination report also reflects that the Veteran had reported flare-ups with weight-bearing, during cold or damp weather, and with prolonged sitting. Furthermore, the Veteran reported functional impairment in that he cannot stand for long periods and his knee disability limits walking. In addition, the examiner noted that the functional impact of his right knee disability is that the Veteran cannot crawl, stoop, kneel, climb, stand for greater than 1 hour without a break, or walk greater than 100 yards without a break. Moreover, the April 2015 VA examination report reflects that the Veteran used a cane for ambulation.

Therefore, the evidence does not show that the Veteran's right knee improved. Aside from improved flexion and extension, the April 2015 VA examination, the basis for the reduction, shows that the Veteran's right knee disability had continued to remain at a similar level of severity as when the Veteran was examined in October 2014. The April 2015 VA examination continued to show pain with flexion and extension. Furthermore, the Veteran continued to report flare-ups, as he had at his October 2014 VA examination. 

In addition, the evidence does not show that there was actual improvement in the Veteran's right knee disability under ordinary conditions of life and work. The October 2014 VA examiner found that the Veteran's right knee disability caused no functional impact. However, the April 2015 VA examiner found that the functional impact of his right knee disability is that the Veteran cannot crawl, stoop, kneel, climb, stand for greater than 1 hour without a break, or walk greater than 100 yards without a break. The April 2015 VA examination report continued to show that the Veteran used a cane for ambulation. 

Given the above, the Board finds that the overall weight of the evidence does not show improvement in the service-connected right knee disability. Therefore, the Board cannot conclude that the weight of the evidence shows improvement that is reasonably certain to be maintained under the ordinary conditions of life and work. See 38 C.F.R. § 3.344; Brown, 5 Vet. App. 413. As such, the reduction in the 40 percent rating for the Veteran's right knee disability was improper, and the rating should be restored effective December 1, 2016.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). With respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996).

Degenerative and/or traumatic arthritis as shown by X-ray studies are rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. 

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the Court rejected VA's argument that § 4.59 requires painful motion, such that the mere presence of joint pain is not sufficient. Id. at 428-29. The Court held that under § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint," explaining that § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that § 4.59 does not require "objective" evidence but can be satisfied with lay and other non-medical evidence. Id. at 429.

1. Headaches

The Veteran contends his migraine headaches are more severe than his current disability rating indicates. See November 2017 Correspondence, at 6. 

The AOJ has assigned a 30 percent rating throughout the appeal period for the Veteran's migraine headaches under Diagnostic Code 8100. 

Under Diagnostic Code 8100, a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating (which is the maximum schedular rating available under Code 8100) is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a.

The Board notes that the Rating Schedule does not define "prostrating." "Prostration" has been defined as "complete physical or mental exhaustion." MERRIAM-WEBSTER'S NEW COLLEGIATE DICTIONARY 999 (11th ed. 2007). "Prostration" has also been defined as "extreme exhaustion or powerlessness." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1534 (32nd ed. 2012). According to STEDMAN'S MEDICAL DICTIONARY 1461 (27th Ed. 2000), "prostration" is defined as "a marked loss of strength, as in exhaustion." 

The phrase "completely prostrating" (which is required for a 50 percent rating) is defined as "completely lacking in vitality or will" and "powerless to rise." See Johnson v. Wilkie, 30 Vet. App. 245 (2018). The United States Court of Appeals for Veterans Claims (Court) has indicated this phrase means the headaches "must render the veteran entirely powerless." Id. at 253 (emphasis in original). This differs from "characteristic prostrating" (which is required for a 30 percent rating), which means that the migraine attacks "typically produce powerlessness or a lack of vitality." Further, prolonged has been defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. "[P]roductive of severe economic inadaptability" has been defined as either "'producing' or 'capable of producing' severe economic inadaptability." Id. (citing Pierce v. Principi, 18 Vet. App. 440 (2004)).

The evidentiary record shows that the Veteran has had frequent completely prostrating and prolonged attacks throughout the appeal period. A private headaches disability benefits questionnaire reflects that the Veteran reported prostrating migraine headaches two times a month lasting a few hours. See September 2017 Headaches Disability Benefits Questionnaire, at 2. Dr. M.B., the private physician who conducted an interview with the Veteran, concluded after interviewing the Veteran and reviewing the medical records that the Veteran's headaches occur approximately two times per month and last up to 4 hours. Id. at 3. The Veteran has been treated with hydrochlorothiazide, losartan, and aspirin for his headaches. See November 2019 VA Examination Report. He also suffers from sensitivity to light and sound, nausea, changes in vision, blurred vision, and disturbed concentration. See July 2016 and November 2019 VA Examination Reports; see also September 2017 Headaches Disability Benefits Questionnaire. Further, Dr. M.B. noted that the Veteran's headaches force him to lie down in a dark room for hours at a time. See September 2017 Headaches Disability Benefits Questionnaire, at 3.

The second prong of the rating criteria concerns whether the migraines are productive of severe economic inadaptability. Here, Dr. M.B. opined in September 2017 that the Veteran's headaches preclude him from maintaining gainful employment. See September 2017 Headaches Disability Benefits Questionnaire, at 3. Dr. M.B. reasoned that the Veteran would not be able to maintain substantial gainful employment due to the amount of work missed and would require frequent unscheduled breaks due to his headaches. Id. 

Therefore, the Board finds that the evidence more nearly approximates an assignment of a 50 percent rating throughout the appeal period for the Veteran's migraine headaches. As there is no higher schedular rating that can be assigned for migraine headaches by regulation, an evaluation of 50 percent, but no higher, is warranted. 

2. Sinusitis

The Veteran generally contends his sinusitis is more severe than his current disability rating indicates. See January 2016 VA Form 21-526, Application for Disability Compensation and Related Compensation Benefits. 

The AOJ has assigned a noncompensable rating throughout the appeal period for the Veteran's sinusitis under Diagnostic Code 6513. 

Sinusitis is to be evaluated under the general rating formula for sinusitis, Diagnostic Codes 6510-6514. Under Diagnostic Code 6513, a noncompensable evaluation is warranted for sinusitis detected by X-ray only. A 10 percent rating is warranted for sinusitis that results in 1 or 2 incapacitating episodes per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or; 3 to 6 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is warranted for sinusitis that results in three or more incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97.

A review of the record illustrates that a 10 percent rating, but no higher, is warranted throughout the appeal period for the Veteran's sinusitis under Diagnostic Code 6513 based on evidence of the Veteran having three to six non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting per year. See November 2019 VA Examination Report. The Board acknowledges that the Veteran did not have purulent discharge or crusting at the November 2019 VA examination; however, the examiner noted that he had four non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the previous year. Id. Furthermore, the Board notes that a July 2016 VA examination report reflects that the Veteran had no findings, signs, or symptoms attributable to chronic sinusitis; however, the Veteran reported at the examination that he has periodic recurrence of sinusitis during allergy pollen season and in the winter time. See July 2016 VA Examination Report. As the 2016 VA examination took place during July, a period in which the Veteran inferred he did not have symptoms of sinusitis, the Board places little weight on the July 2016 examination report as the examination does not adequately reflect the Veteran's sinusitis symptomatology. In addition, the November 2019 VA examination report does not reflect that the Veteran's sinusitis symptoms have not remained at a similar level of severity throughout the appeal period. Thus, the Board concludes that the evidence most nearly approximates a 10 percent rating, but no higher, throughout the appeal period.

A rating in excess of 10 percent is not warranted at any point as there is no evidence of three or more incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The Board notes that the Veteran takes fluticasone for his sinusitis, but the record does not reflect evidence of incapacitating episodes. See November 2019 VA Examination Report. In addition, there is no evidence of radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness or affected sinus, and purulent discharge or crusting after repeated surgeries. Thus, the evidence most nearly approximates a 10 percent rating for the Veteran's sinusitis throughout the appeal period.

As noted below, the Veteran is separately service connected for rhinitis and is receiving a 10 percent rating under Diagnostic Code 6522 based on obstruction of the nasal passage on both sides or complete obstruction on one side. Thus, the Veteran is already receiving a 10 percent evaluation based on nasal passage obstruction and receiving a higher 10 percent rating under Diagnostic Code 6502 for the same symptoms would be pyramiding. 38 C.F.R. § 4.14.

As such, the evidence most nearly approximates a 10 percent, but no higher, rating for the Veteran's sinusitis throughout the appeal period under Diagnostic Code 6513.  

3. Rhinitis 

The Veteran generally contends his rhinitis is more severe than his current disability rating indicates. See January 2016 VA Form 21-526. 

The AOJ has assigned a 10 percent rating throughout the appeal period for the Veteran's rhinitis under Diagnostic Code 6522.

Under Diagnostic Code 6522, a 10 percent rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent rating is warranted for allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97.

Based on a review of the relevant evidence and the applicable law and regulations, the Board concludes that the evidence most nearly approximates the currently assigned 10 percent rating for the Veteran's service-connected rhinitis as the evidence does not reflect that the Veteran has had polyps at any point throughout the appeal period. See July 2016 and November 2019 VA Examination Reports. The November 2019 VA examiner noted the Veteran had greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis but no complete obstruction on either side due to rhinitis. The Veteran did not have permanent hypertrophy of the nasal turbinates and had no granulomatous conditions. See November 2019 VA Examination Report. Thus, a rating in excess of 10 percent is not warranted. 

The Board acknowledges the Veteran's reported symptoms of headaches and congestion. See November 2019 VA Examination Report. The Veteran is competent to report such lay observable symptomatology, and there is no evidence that these statements are not credible. Jandreau, 492 F.3d 1372. However, the Veteran is separately service connected for sinusitis and headaches; thus, any evaluation of headaches and sinus related symptoms under the evaluation of allergic rhinitis would be pyramiding. 38 C.F.R. § 4.14. 

In addition, as the Veteran is receiving a 10 percent rating for his rhinitis based on obstruction of the nasal passage obstruction, receiving an additional 10 percent rating under Diagnostic Code 6502 for the same symptoms would be pyramiding. Id.

As such, as there is no evidence of polyps, the criteria for a rating in excess of 10 percent are not met. The Board has considered the benefit-of-the-doubt rule; however, the benefit-of-the-doubt rule is not for application here based on the entirety of the record. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir. Dec. 17, 2021).

4. Pes Planus

The Veteran generally contends his bilateral pes planus disability is more severe than his current disability rating indicates. See November 2016 VA Form 9, Appeal to Board of Veterans' Appeals.

The AOJ has assigned a 30 percent rating throughout the appeal period for the Veteran's bilateral pes planus under Diagnostic Code 5276. 

Under Diagnostic Code 5276, a 30 percent rating is warranted for severe bilateral pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. A 50 percent rating is warranted for pronounced bilateral pes planus, 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 appliances. 38 C.F.R. § 4.71a.

The words "moderate," "severe," and "pronounced" are not defined in Diagnostic Code 5276. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. (Here as well, the underlying diagnostic code provides considerable additional guidance, beyond conclusory estimated severity of condition). 

Upon consideration of the record the Board finds that the evidence is against a finding that a rating in excess of 30 percent is warranted for the Veteran's bilateral pes planus. 

The Veteran attended a VA examination in April 2015 for an evaluation of his bilateral pes planus. The examiner diagnosed the Veteran with bilateral pes planus. The Veteran reported symptoms of increased pain with walking and increased pain along the arches. The Veteran reported flare-ups consisting of pain along the arches with walking long distances and with prolonged standing. He reported functional limitation with prolonged walking and prolonged standing. Upon examination of the feet, the Veteran had accentuated pain bilaterally on use of the feet, pain on manipulation of the feet, and swelling on use bilaterally. He had no calluses bilaterally. The examination report reflects that the Veteran had tried arch supports and orthotics, and that he remained symptomatic with the arch supports and orthotics. The Veteran did not have extreme tenderness of plantar surfaces on either foot. The Veteran had decreased longitudinal arch height on weight-bearing bilaterally. He had no objective evidence of marked deformity bilaterally, no objective evidence of marked pronation bilaterally, the weight-bearing line did not fall over or medial to the great toe bilaterally, no inward bowing of the Achilles tendon bilaterally, and no marked inward displacement and severe spasm of the Achilles tendon bilaterally. The examiner noted that the pain on examination of the feet caused functional loss in the form of pain on weight-bearing bilaterally and interference with standing bilaterally. In addition, the examiner noted that flare-ups caused no functional loss bilaterally.  The Veteran was noted to use a cane on a regular basis in part for his bilateral foot pain. The examiner noted that the functional impact of the Veteran's bilateral foot disability is foot pain prevents prolonged standing and walking.  

The Veteran attended an additional VA examination in November 2019 for an evaluation of his bilateral pes planus. The examiner diagnosed the Veteran with bilateral pes planus, bilateral metatarsalgia, right hammer toes, bilateral hallux valgus, left plantar fasciitis, left degenerative arthritis, status post bilateral bunionectomy, status post hammer toe repair of the second digit on the right foot, and bilateral hallux limitus. The Veteran reported symptoms of pain with prolonged walking and prolonged standing. He reported his current treatment is shoe insoles. He reported the functional impact of his bilateral foot conditions is that they stop him from standing and walking for too long. The Veteran reported flare-ups consisting of pain along the arches with prolonged walking and with prolonged standing. Upon examination of the feet, the Veteran had pain on use of both feet, accentuated pain bilaterally on use of the feet, and accentuated pain on manipulation of the feet. He did not have swelling on use bilaterally, and he had no calluses bilaterally. The examination report reflects that the Veteran had tried arch supports, but he remained symptomatic with the use of arch supports. The Veteran had extreme tenderness of the plantar surfaces on both feet. The Veteran had decreased longitudinal arch height on weight-bearing bilaterally, he had objective evidence of marked deformity bilaterally, bilateral metatarsalgia, and there was a lower extremity deformity other than pes planus causing alteration of the weight-bearing line. The examiner described the other deformity as status post bilateral bunionectomy, status post hammer toe repair of the second digit on the right foot, and bilateral hallux limitus. He had no objective evidence of marked pronation bilaterally, the weight-bearing line did not fall over or medial to the great toe bilaterally, no inward bowing of the Achilles tendon bilaterally, no marked inward displacement and severe spasm of the Achilles tendon bilaterally, and no Morton's neuroma bilaterally. The hammer toe section of the examination report reflects that the Veteran did not have current hammer toe bilaterally as the Veteran is status post hammer toe repair of the second digit on the right foot. Furthermore, the examiner noted the Veteran had bilateral hallux limitus of moderate severity, and the examiner noted the bilateral foot condition chronically compromised weight-bearing. The examiner noted that the pain on examination of the feet caused functional loss in the form of less movement than normal bilaterally, pain on movement bilaterally, pain on weight-bearing bilaterally, deformity on the right foot, and lack of endurance bilaterally. In addition, the examiner noted that repeated use and flare-ups caused functional loss in the form of difficulty with weight-bearing bilaterally. The examiner noted the Veteran had a one scar on his left foot as a result of the bunionectomy and two scars on the right foot as a result of the bunionectomy and second digit hammer toe repair. The Veteran was noted to use a cane on a constant basis in part for his bilateral foot pain. The examiner noted that the functional impact of the Veteran's bilateral foot disability is that the Veteran would have difficulty with performing occupational tasks that would require prolonged standing, prolonged walking, use of stairs, kneeling, or squatting. 

A November 2019 left foot X-rayed showed severe degenerative change in the first metatarsophalangeal (MTP) joint. A November 2019 right foot X-ray showed arthroplasty along the first MTP joint with lucency around both components worrisome for loosening, septic versus and aseptic, and osteotomy second proximal phalanx. 

The symptomatology of the Veteran's bilateral foot disability as detailed above corresponds most appropriately with the characteristics of the currently assigned 30 percent rating. Although the November 2019 VA examination showed extreme tenderness of the plantar surfaces of the feet, there has been no evidence of marked pronation bilaterally and no evidence of marked inward displacement and severe spasm of the Achilles' tendon on manipulation bilaterally. Furthermore, there has been no evidence of calluses throughout the appeal period. In addition, the November 2019 examination reflects that the Veteran did not have swelling on use bilaterally. As such, the criteria necessary for a 50 percent rating are not satisfied according to the medical and lay evidence of record. 

Although the Board acknowledges that the Veteran experiences pain with prolonged standing and walking that results in impairment of function, particularly with standing, walking, and navigating stairs, this impairment is already encompassed within the currently assigned 30 percent rating. For the foot disability to warrant a 50 percent rating on the basis of functional impairment, the degree of impairment would have to be commensurate with the type of pronounced severity outlined above, and here, the evidence does not more nearly approximate this degree of impairment, even when considering his symptom of pain. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. § 4.71a, Diagnostic Code 5276. 

The Board has also considered whether the Veteran's disability would warrant a higher disability rating under other diagnostic codes pertaining to the foot but finds that the criteria pertaining to claw feet (pes cavus) under Diagnostic Code 5278 is not applicable as the record does reflect that the Veteran has claw feet. See November 2019 VA Examination Report. No other diagnostic code pertaining to the foot provides a basis for any higher rating for the Veteran's bilateral pes planus disability. Additionally, a separate rating under Diagnostic Code 5284 would not be warranted as this would amount to impermissible pyramiding as the symptoms considered in an evaluation under Diagnostic Code 5284 would also be considered in the evaluation under Diagnostic Code 5276. 38 C.F.R. § 4.14.

The Board notes that November 2019 VA examination report reflects bilateral metatarsalgia, right hammer toes, bilateral hallux valgus, left plantar fasciitis, left degenerative arthritis, status post bilateral bunionectomy, status post hammer toe repair of the second digit on the right foot, and bilateral hallux limitus. Regarding the diagnoses of bilateral metatarsalgia, bilateral hallux valgus, bilateral hallux limitus, and bilateral status post bilateral bunionectomy, and left degenerative arthritis, the AOJ awarded service connection for other foot disabilities in a July 2020 rating decision that took into consideration these diagnoses. As such, those disabilities are not before the Board and further discussion is not warranted.

Regarding the diagnosis of left plantar fasciitis, although not diagnosed, the Remarks section of the November 2019 VA examination report also reflects that the Veteran's right pes planus has led to plantar fasciitis. However, there is no indication that the Veteran's bilateral plantar fasciitis results in symptoms that are distinct and separate from the Veteran's bilateral pes planus. Thus, a separate rating for bilateral plantar fasciitis under Diagnostic Code 5269 would constitute improper pyramiding. 38 C.F.R. § 4.14.

However, regarding the diagnosis of right hammer toes and right foot second digit hammer toe repair, the Board concludes that the Veteran is entitled to a separate noncompensable rating for his right foot second digit hammer toe repair. Under Diagnostic Code 5282, a noncompensable rating is warranted for hammer toe of a single toe and a 10 percent rating is warranted when all toes of one foot are affected without claw foot. Thus, as the record reflects that the Veteran has a diagnosis of status post hammer toe repair of the second digit on the right foot, the Board concludes a separate noncompensable, but no higher, rating under Diagnostic Code 5282 is warranted effective December 24, 2014. 

A higher 10 percent rating is not warranted under Diagnostic Code 5282 as the record does not reflect that multiple toes are affected. Notably, the physical examination of his toes at the November 2019 VA examination revealed the Veteran did not have hammer toe of any toe as the Veteran is status post hammer toe repair of the second digit on the right foot.

In sum, the Board finds the criteria for a rating in excess of 30 percent for bilateral pes planus have not been met during the pendency of the appeal. Furthermore, the Board concludes a separate noncompensable, but no higher, rating for status post hammer toe repair of the second digit on the right foot effective December 24, 2014. The Board has considered the benefit-of-the-doubt rule; however, the benefit-of-the-doubt rule is not for application here based on the entirety of the record. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir. Dec. 17, 2021).

5. Cervical Spine

The Veteran generally contends his cervical spine disability is more severe than his current disability rating indicates. 

The AOJ has assigned a 30 percent rating throughout the appeal period for the Veteran's cervical spine disability under Diagnostic Code 5242. 

The Veteran's cervical spine disability can be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under  § 4.25. 

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

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

Prior to the regulatory change, Diagnostic Code 5242 was assigned for degenerative arthritis of the spine (see also Diagnostic Code 5003) and Diagnostic Code 5243 for IVDS. As of February 7, 2021, under the amended criteria, Diagnostic Code 5242 is assigned for degenerative arthritis and degenerative disc disease (DDD) other than IVDS (see also either Diagnostic Code 5003 or 5010). It also amends Diagnostic Code 5243 for IVDS allowing the Diagnostic Code to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise, Diagnostic Code 5242 must be used for all other disc diagnoses. Although the amended criteria for 5242 and 5243 separated DDD from IVDS, the rating formula under each Diagnostic Code was unchanged.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. 

Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a.

Under the Formula for Rating IVDS, a 20 percent rating is warranted 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 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 with incapacitating episodes having a total duration of at least 6 months. 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.

Following a review of the evidence of record, the Board concludes the criteria for a rating in excess of 30 percent for a cervical spine disability have not been met. The medical evidence of record reflects that the Veteran has not had unfavorable ankylosis or IVDS at any point during the appeal period. See July 2016 and November 2019 VA Examination Reports. There is no indication that the Veteran has had ankylosis that also resulted 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.  

In reaching this conclusion, the Board has considered whether the requirement of ankylosis has been met with evidence of the functional equivalence of ankylosis (i.e., functional immobility of the joint), even during a flare-up. See Chavis v. McDonough, 34 Vet. App. 1 (2021). The Board has considered the Veteran's reports of neck pain with movement. See July 2016 and November 2019 VA Examination Reports. Regarding any functional loss during a flare-up, the evidence does not indicate that flare-ups during which the Veteran experiences an increase in pain results in immobility of the spine. The Veteran reported experiencing no flare-ups at the July 2016 VA examination. At the November 2019 VA examination, the reported experiencing mild flare-ups that occur randomly and are precipitated by moving the head during cold weather. The November 2019 VA examination report reflects that the examiner estimated there would be a reduction of five degrees of motion in all planes of motion during flare-ups. However, the additional limitation of motion reflected would not result in symptoms reflecting the fixation of a spinal segment in neutral position or more nearly approximating the entire spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5 to the General Rating Formula, even during a flare-up. See Chavis, 34 Vet. App. 1. 

In evaluating the appellant's increased rating claim, the Board must also address the provisions of 38 C.F.R. §§ 4.40 and 4.45. The Board recognizes the Veteran's reports of pain, loss of motion, and functional loss as a result of his cervical spine disability. However, the 30 percent evaluation assigned is the maximum evaluation based on limitation of motion. In order to obtain a higher rating, unfavorable ankylosis must be shown, which is addressed in the preceding paragraph. Therefore, further analysis of these provisions is not required. Johnston v. Brown, 10 Vet. App. 80 (1997).

The evidence throughout the appeal period contains no evidence of IVDS or incapacitating episodes. Therefore, the evidence does not more nearly approximate the criteria for a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 

The Board acknowledges that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provides for separate rating(s) for associated neurologic impairment, including bowel or bladder impairment. The record does not reflect that the Veteran has had any bowel or bladder impairment or any impairment of the upper extremities associated with his cervical spine disability. Therefore, there is no basis for a separate award for neurological impairment on that basis. 

As such, the criteria for a rating in excess of 30 percent are not met. The Board has considered the benefit-of-the-doubt rule; however, the benefit-of-the-doubt rule is not for application here based on the entirety of the record. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir. Dec. 17, 2021).

6. Left Knee Scar

7. Right Knee Scar

8. Right Inguinal Hernia Repair Scar

9. Right Foot Second Digit Status Post Hammer Toe Repair Scar

The Veteran generally contends he is entitled to higher ratings for his service-connected bilateral knee scars and right inguinal hernia repair scar.

Before addressing the scar ratings, the Board notes that as entitlement to a separate rating has been awarded herein for the Veteran's right foot second digit hammer toe digit, the Veteran is entitled to a separate noncompensable rating for scar associated with the Veteran's hammer toe surgery. A compensable rating is not warranted for the reasons below.

The Veteran's bilateral knee scars and right inguinal hernia pair scar have been assigned noncompensable ratings under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 to 7804 be evaluated under an appropriate diagnostic code.

The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. Diagnostic Code 7802 was changed by the August 13, 2018, amendments. However, Diagnostic Codes 7804 and 7805 were not changed by the August 13, 2018, amendments. Diagnostic Codes 7800 and 7801 are not applicable here because the Veteran's scars are not on the head, face, or neck, and the Veteran's right knee and right inguinal repair scars are superficial. 

Prior to August 13, 2018, Diagnostic Code 7802, was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that were superficial and nonlinear. Under these criteria, a scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 10 percent rating. 38 C.F.R. § § 4.118, Diagnostic Code 7802. 

Note 1 to Diagnostic Code 7802 provides that a superficial scar was one not associated with underlying soft tissue damage. Id. 

Note 2 to Diagnostic Code 7802 provides that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion of the trunk or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separate the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. Id.

Since August 13, 2018, Diagnostic Code 7802 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. 

Note 1 provides that for the purposes of Diagnostic Codes 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Id. 

Note 2 provides that a separate evaluation may be assigned for each affected zone of the body if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this Diagnostic Code. Diagnostic Code 7802 was otherwise unchanged by the August 13, 2018, amendments.

Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. Three or four scars that are unstable or painful warrant a 20 percent rating. Five or more scars that are unstable or painful warrant a 30 percent rating. 38 C.F.R. § 4.118. 

Note 1 to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 to Diagnostic Code 7804 provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804.

Turning to the relevant evidence of record, the Veteran's left knee scar is 18.0 by 0.4 centimeters, so the total area of the scar is approximately 7.2 square centimeters. See August 2018 and November 2019 VA Examination Reports. The Veteran's right knee scar is 2.0 by 0.2 centimeters, so the total area of the scar is approximately 0.4 square centimeters. Id. The VA examiners noted that the Veteran's scars are not painful or unstable. Id. The Board notes here that the November 2019 VA examination report contains a scrivener's error in that it reflects that the Veteran's has two right knee scars, including one measuring 18.0 by 0.4 centimeters. However, based on the Veteran's surgical history and left knee scar correctly being recorded as 18.0 by 0.4 centimeters in the August 2016 VA and August 2018 examination reports, the Board concludes additional development is not necessary to adequately adjudicate the Veteran's bilateral knee scars.  

The Veteran's right inguinal hernia scar is 9.0 by 0.2 centimeters, so the total area is approximately 1.8 square centimeters. See November 2019 VA Examination Report. Furthermore, July 2016 and November 2019 VA examiners noted that the scar is not painful or unstable.

The Veteran's right foot second digit hammer toe repair scar is 6.0 by 0.1 centimeters, so the total area is approximately 0.6 square centimeters. See November 2019 VA Examination Report. Furthermore, the November 2019 VA examiner noted that the scar is not painful or unstable.

Following a review of the record, the Board finds that a compensable rating under Diagnostic Code 7802 or 7804 is not warranted in this case for any scar because the Veteran's left knee scar, right knee scar, right inguinal hernia repair scar, and right foot second digit hammer toe repair scar are superficial with a total of less than 929 square centimeters and are not painful or unstable. Furthermore, the Veteran's scars do not result in limitation of function. As such, a compensable rating is not warranted for any scar.  

The Board has further considered whether any other diagnostic code is applicable to provide for a higher or separate rating. However, the Veteran's scars are not of the head, face, or neck. Furthermore, there is no evidence that the scars are deep and are associated with underlying soft tissue damage. Therefore, Diagnostic Codes 7800 and 7801, prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 to 7804 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. 

As such, the criteria for a compensable rating for any scar are not met. The Board has considered the benefit-of-the-doubt rule; however, the benefit-of-the-doubt rule is not for application here based on the entirety of the record. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir. Dec. 17, 2021).

TDIU

The Veteran contends his service-connected disabilities interfere with his ability to maintain work. 

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). 

The established policy of VA reflects that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The United States Court of Appeals for Veterans Claims (Court) recently held that "substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component "simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The non-economic component requires consideration of the Veteran's history, education, skill, and training, and physical and mental ability to perform the activities required by an occupation. Further, the word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

In this case, the Veteran has met the schedular requirements for TDIU throughout the appeal period as the Veteran's combined rating for his service-connected disabilities has been at least 70 percent throughout the entirety of the appeal period. Furthermore, the Veteran's rating of 40 percent for his right knee disability throughout the appeal period meets the requirement of having at least one disability rated at 40 percent or more when there are two or more disabilities and sufficient additional disability to bring the combined rating to 70 percent or more. Thus, the schedular requirements for a TDIU rating are met as of December 24, 2014, the applicable claim date. During this period, the Veteran has also been service connected for posttraumatic stress disorder (PTSD), duodenitis, bilateral pes planus, headaches, left knee disabilities, a lumbar spine disability, bilateral hallux valgus, a cervical spine disability, rhinitis, bilateral lower extremity sciatica, bilateral shin splints, sinusitis, hemorrhoids, right inguinal hernia postoperative repair, pseudofolliculitis barbae, eczema, bilateral knee scars, a right hand condition, right inguinal hernia scar, right foot second digit hammer toe, and right foot second digit hammer toe scar. The question remaining is whether the Veteran's service-connected disabilities (alone) render him incapable of participating in a substantially gainful occupation.

Here, a balance of the evidence supports that the Veteran's service-connected disabilities substantially impact his ability to secure and engage in types of employment at any exertional level. The Veteran reported in his December 2014 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, that he is too disabled to work due to his service-connected bilateral knee disabilities. He indicated he last worked in November 2014, but he also indicated he became too disabled to work in November 2012. In a January 2015 VA Form 21-4138, Statement in Support of Claim, the Veteran stated his bilateral knee disabilities, bilateral pes planus, and lumbar spine disability prevented him from performing his employment. He also stated he was terminated from his job on December 20, 2014 due his inability to perform his job as a detention center juvenile officer supervisor. 

In July 2015, C.C., a private physician, opined the Veteran is unemployable due to his psychiatric symptoms. In support of the opinion, Dr. C.C., provided a discussion of the Veteran's symptoms, including isolation, hypervigilance, periods of being emotionally explosive, difficulty sleeping, panic attacks, mood swings, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. Furthermore, he noted the Veteran's deficiencies in areas of work, family relations, and judgment due to anxiety affecting his ability to function independently, appropriately, and effectively. 

In October 2017, H.S., a private physician, opined the Veteran is more likely than not unable to perform substantially gainful employment since July 2015 due to the combined effects of his service-connected physical disabilities. In support of the opinion, Dr. H.S., provided a detailed discussion of the medical and lay evidence of record. Furthermore, he had the opportunity to interview the Veteran.

In November 2017, S.H., a vocational consultant, opined the Veteran is totally and permanently precluded from performing work at a substantial gainful level due to his service-connected physical disabilities. S.H., stated the record supports the conclusion back to December 24, 2014. In support of the opinion, the vocational consultant cited to functional limitations assessed by VA examiners and other medical professionals. In addition, the vocational consultant provided a detailed discussion of the medical evidence of record regarding the impact of the Veteran's limitations on employment, and she provided a discussion of pertinent research regarding the impact of absences and time off task in the employment setting. 

The Board affords great probative weight to the July 2015, October 2017, and November 2017 opinions as they are consistent with the limitations assessed in the April 2015 bilateral knee and feet VA examinations, July 2016 cervical spine VA examination, and August 2018 bilateral knee VA examination. See Nieves-Rodriguez, 22 Vet. App. at 302. Furthermore, the opinions are consistent with the limitations assessed in November 2019 acquired psychiatric disorder, sleep apnea, cervical spine, bilateral knee, hernia, and feet VA examinations. Id. In addition, the private opinions are consistent with the Veteran's statements, including the Veteran's January 2015 written statement in which he reported multiple ways that his service-connected physical disabilities affect his ability to maintain employment. Id. 

The Board acknowledges that Dr. H.S. opined the Veteran's service-connected disabilities precluded employment as of July 2015, whereas S.H. opined the Veteran's service-connected disabilities precluded employment as of December 24, 2014. However, based on a review of the entirety of the record, the Board concludes that the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation as of December 24, 2014. Such a finding does not reduce the probative value of the opinion of Dr. H.S regarding the Veteran being unemployable. The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). 

Based on the foregoing, the Board finds that the overall evidence of record is at least in equipoise as to a finding that given the Veteran's education and industrial background, he would have difficulty with most occupations due to his service-connected disabilities. Therefore, the Board concludes the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities and that entitlement to a TDIU is warranted, effective December 24, 2014.

DEA Benefits

The AOJ has assigned an effective date of June 18, 2015 for the award of Chapter 35 DEA benefits. The date assigned by the AOJ was the same date the Veteran was initially in receipt of a combined 100 percent rating. As discussed above, with the award of TDIU in this decision from December 24, 2014, the Veteran is now in receipt of a total disability rating for his service-connected disabilities effective December 24, 2014. Chapter 35 benefits may be awarded effective the date of an award of a permanent and total disability rating but not prior to the award of a permanent and total disability rating. Therefore, the Board concludes the Veteran is entitled to an effective date of December 24, 2014, but no earlier, for the award of entitlement to Chapter 35 benefits. 38 U.S.C. §§ 3501, 3510. 

SMC

The Board must consider entitlement to SMC when raised. Akles v. Derwinski, 1 Vet. App. 118 (1991). The issue of entitlement to SMC at the "statutory housebound" rate under the provisions of 38 U.S.C. § 1114(s) has been raised by the record. See September 2017 NOD.

SMC at the housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

When a veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230, Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley v. Peake, 22 Vet. App. 280 (2008)).

Pursuant to the Order above, the Board has awarded TDIU since December 24, 2014. Here, the Board notes that Board has awarded entitlement to TDIU as of December 24, 2014 based on the entirety of the Veteran's physical disabilities. However, in a July 2020 rating decision, the AOJ awarded service connection for PTSD with a 70 percent rating effective June 18, 2015. Furthermore, as is noted above, in July 2015, C.C., opined the Veteran is unemployable due to his psychiatric symptoms. Thus, the Board concludes that the competent and credible evidence of record supports that the Veteran would be entitled to TDIU based on the Veteran's PTSD alone from June 18, 2015. As the Veteran has had additional service-connected disabilities independently ratable at a combined rating of more than 60 percent since June 18, 2015, both elements of entitlement to SMC at the (s) rate have been shown. Therefore, the Board finds entitlement to SMC at the statutory housebound rate is granted from June 18, 2015 to June 5, 2017 and from August 1, 2018. The Board notes that the Veteran is already receiving SMC at the housebound rating from June 6, 2017 to July 31, 2018.  

Prior to June 18, 2015, the Veteran does not argue, nor does the evidence show, that he would be entitled to a total rating based on a single disability. From December 24, 2014 to June 17, 2015, the record, including the probative opinions from H.S. and S.H., reflects that entitlement to TDIU is warranted based on the collection of the Veteran's service-connected physical disabilities and not based on a single disability alone. Furthermore, the Veteran does not have one service-connected disability rated as 100 percent during this period. As a result, entitlement to SMC at the statutory housebound (s) rate is denied prior to June 18, 2015.

REASONS FOR REMAND

1. Barrett's Esophagus with GERD and Hiatal Hernia

The Board regrets the additional delay, but an additional remand for further development is required to adequately evaluate the Veteran's claim for service connection for Barrett's esophagus with GERD and hiatal hernia. The Board remanded this claim in April 2019 to obtain an additional medical opinion as to whether the Veteran's Barrett's esophagus with GERD and hiatal hernia is directly related to his service or caused or aggravated by his service-connected right inguinal hernia.

Following a November 2019 VA examination, the VA examiner provided a negative medical opinion. However, a review of the opinion illustrates that the opinion contains insufficient rationale to adequately evaluate the Veteran's claim for service connection as the sole rationale provided by the examiner was "[t]here is no medical research that provides a nexus between GERD, hiatal hernia, and [B]arrett's esophagus to environmental exposures or due to a right inguinal repair." As such, an additional remand is required to obtain a VA opinion regarding the etiology of the Veteran's claim of entitlement to service connection for Barrett's esophagus with GERD and hiatal hernia. 

In addition, in the April 2019 Board remand, the Board specifically directed the VA examiner to "address the treatment records in July 2017 noting a suggestion of a small hiatal hernia on CT scan." A review of the November 2019 VA examination report and opinion reveals that there is no discussion of the CT scan being referred to in the April 2019 Board remand. 

Thus, a remand is required to obtain an additional VA opinion as to the etiology of the Veteran's Barrett's esophagus with GERD and hiatal hernia. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

2. Lumbar Spine Condition

The Veteran most recently underwent a VA examination to assess his service-connected lumbar spine condition in April 2015. A February 2019 VA physical therapy note reflects reduced range of motion from the range of motion testing conducted at the April 2015 VA examination. See February 2019 CAPRI record at 139. Although the February 2019 VA record contains the Veteran's range of motion for each plane of motion, the February 2019 record does not address whether the Veteran has ankylosis of the lumbar spine. 

Thus, given the evidence of worsening of the Veteran's lumbar spine condition since the April 2015 VA examination and the need for more current findings necessary to rate his lumbar spine disability, a new examination is needed. 38 C.F.R. § 3.327(a) (2021); Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007).

3. Left Lower Extremity Sciatica

4. Right Lower Extremity Sciatica

The Veteran most recently underwent a VA examination specifically to assess his service-connected bilateral lower extremity sciatica in July 2016. The July 2016 VA examination report reflects that the Veteran reported mild intermittent pain in the bilateral lower extremities. A February 2018 VA treatment record reflects that the Veteran reported constant left leg pain at a 6 out of 10. See February 2018 CAPRI Record, at 364. The evidence of constant leg pain is evidence of worsening of the Veteran's disability since the July 2016 VA examination. 

Therefore, given the evidence of worsening and the need for more current findings necessary to rate his bilateral lower extremity sciatica disability, a new examination is needed. 38 C.F.R. § 3.327(a); Palczewski, 21 Vet. App. at 182.

5. Postoperative Right Inguinal Hernia

Following the Board remand in April 2019 an additional VA examination to assess the severity of the Veteran's postoperative right inguinal hernia, the Veteran attended a VA examination in November 2019. A review of the November 2019 VA examination report illustrates that the VA examiner did not complete the inguinal hernia section, the section that specifically addresses the Veteran's service-connected right inguinal hernia disability, of the examination report. Thus, the VA examination report is inadequate for evaluation purposes.

In addition, in the April 2019 Board remand, the Board specifically directed the VA examiner to "address the treatment records in July 2017 noting a suggestion of a small hiatal hernia on CT scan." A review of the November 2019 VA examination report reveals that there is no discussion of the CT scan being referred to in the April 2019 Board remand. 

Thus, a remand is required to obtain an additional VA examination of the Veteran's postoperative right inguinal hernia. See Stegall, 11 Vet. App. at 271.

6. Temporary Total Disability Rating for Convalescence in Association with March 27, 2015 Left Knee Surgery

7. Left Knee Arthritis prior to June 6, 2017

8. Left Knee Limitation of Extension prior to June 6, 2017

9. Separate Rating for Left Knee Limitation of Extension from August 1, 2018

10. Status Post Total Left Knee Arthroplasty from August 1, 2018

Initially, the Board notes that a May 6, 2015 VA treatment record reflects that the Veteran was receiving physical therapy at Select Physical Therapy in Charlotte, North Carolina following his March 27, 2015 left knee surgery. See June 29, 2015 CAPRI Record, at 27. A review of the record illustrates that the physical therapy records from Select Physical Therapy are not in the record. Thus, a remand is required to allow VA to obtain authorization and request these records, which are relevant to the Veteran's left knee disabilities prior to August 1, 2018.

In addition, following the April 2019 Board remand, the Veteran attended a VA examination in November 2019 for an evaluation of his left knee disabilities. While the November 2019 VA examination report addresses some symptoms of the Veteran's left knee disability, the examination report does not contain all the information required to assess the severity of the Veteran's left knee replacement under the appropriate diagnostic code. Notably, it is unclear from the November 2019 VA examination report as to whether the Veteran's reduced strength and painful range of motion is of such severity to be classified as chronic residuals of severe painful motion or weakness, or if his symptoms of reduced strength and painful motion are of the level of intermediate degrees of residual weakness, pain, or limitation of motion. 

As such, a remand is required to obtain an additional VA examination to adequately evaluate the severity of Veteran's left knee disabilities. 

11. Right Knee

In the April 2019 Board remand, the Board specifically directed the VA examiner to "address flare-ups noted on VA examination in August 2016." A review of the November 2019 VA examination report reveals that there is no discussion of the flare-ups noted at the August 2016 VA examination. Thus, a remand is required to obtain an additional VA examination of the Veteran's right knee disability. See Stegall, 11 Vet. App. at 271.

The matters are REMANDED for the following action:

1. With any needed assistance from the Veteran, including securing from him a VA Form 21-4142 (Authorization and Consent to Release Information to VA) for each identified provider, including from Select Physical Therapy in Charlotte, North Carolina, obtain all records of the Veteran's treatment for the issues listed in this remand during the period of the claims.

Obtain any updated VA treatment records from November 2019 to the present. 

If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e).

2. After completing the development requested in item 1, schedule the Veteran for an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) to evaluate the nature and etiology of the Veteran's Barrett's esophagus with GERD and hiatal hernia and to evaluate the severity of the Veteran's postoperative right inguinal hernia disability. The entire claims file should be made available to the examiner in conjunction with this request. 

For the claim seeking an increased rating for the Veteran's postoperative right inguinal hernia disability, all testing deemed necessary to rate inguinal hernia disabilities under the criteria of the rating schedule must be conducted and the results reported in detail. 

In evaluating this disability, the examiner must address the June 2017 CT scan noting a suggestion of a small hiatal hernia.

For the claim seeking service connection for Barrett's esophagus with GERD and hiatal hernia, the examiner is asked to provide opinions on the following questions:

(a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's Barrett's esophagus, GERD, and/or hiatal hernia is related or attributable to his military service, including environmental exposures during service in Southwest Asia?

(b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's Barrett's esophagus, GERD, and/or hiatal hernia is caused by his service-connected right inguinal hernia?

(c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's Barrett's esophagus, GERD, and/or hiatal hernia is aggravated (i.e., any increase in the severity beyond its natural progression) by his service-connected right inguinal hernia?

In addressing these questions, the examiner must address the June 2017 CT scan noting a suggestion of a small hiatal hernia.

If the Veteran's Barrett's esophagus, GERD, and/or hiatal hernia has been aggravated by his service-connected right inguinal hernia, the VA examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time.

The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. The examiner must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation.

3. After completing the development requested in item 1, schedule the Veteran for an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) to evaluate the severity of the Veteran's lumbar spine condition, bilateral lower extremity sciatica, and bilateral knee disabilities. The entire claims file should be made available to the examiner in conjunction with this request. All testing deemed necessary to rate lumbar spine, peripheral nerve, and knee disabilities under the criteria, including the amended rating criteria, of the rating schedule must be conducted and the results reported in detail.

For the claim seeking an increased rating for the Veteran's left knee replacement, the examiner is asked to address whether the Veteran presents with chronic residuals consisting of severe painful motion or weakness in the affected extremity, and/or whether the Veteran presents with intermediate degrees of residual weakness, pain, or limitation of motion.

For the claim seeking an increased rating for the Veteran's right knee disability, the examiner must address the flare-ups noted at the August 2016 VA right knee examination. 

The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. 

(Continued on the next page)

 

A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resorting to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.

 

 

Mariah N. Sim

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N. Breitbach, 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.