Citation Nr: A24067006 Decision Date: 10/18/24 Archive Date: 10/18/24 DOCKET NO. 211109-298221 DATE: October 18, 2024 ORDER The reduction of the rating for nephrolithiasis (kidney stones) from 20 percent to noncompensable was improper; to this extent, the appeal is therefore granted, and restoration of the 20 percent rating assigned for the Veteran's service-connected kidney stones, effective June 16, 2021, is granted. Entitlement to an initial rating of 70 percent, but no greater, for service-connected posttraumatic stress disorder (PTSD) is granted. Entitlement to a compensable rating for scars, right shoulder arthroscopy, is denied. Entitlement to a compensable rating for surgical scar, left shoulder, is denied. Entitlement to a 10 percent rating, but no higher, for right hamstring strain is granted. REMANDED Entitlement to a rating in excess of 20 percent for service-connected kidney stones is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The reduction of the Veteran's rating for service-connected kidney stones from 20 percent to noncompensable was not based upon a review of the entire history of the Veteran's disability. 2. Resolving reasonable doubt in favor of the Veteran, his service-connected PTSD more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood during the appeal period, but did not manifest in total social and occupational impairment. 3. The evidence persuasively establishes that, during the appeal period, the Veteran's right shoulder scars were not associated with underlying soft tissue damage, were not painful or unstable, affected a total area of less than 144 square inches (929 square centimeters), and were not of the head, face, or neck. 4. The evidence persuasively establishes that, during the appeal period, the Veteran's left shoulder scar was not associated with underlying soft tissue damage, was not painful or unstable, affected a total area of less than 144 square inches (929 square centimeters), and was not of the head, face, or neck. 5. Resolving reasonable doubt in favor of the Veteran, his right hamstring strain is a moderate disability, however, the evidence is persuasively against a finding that it is a moderately severe or severe disability. CONCLUSIONS OF LAW 1. The reduction of the rating for kidney stones from 20 percent to noncompensable was improper, and therefore, the criteria for restoration of the 20 percent rating assigned for the Veteran's service-connected kidney stones, effective June 16, 2021, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. 2. The criteria for an initial evaluation of 70 percent, but no higher, for PTSD have been met. 38?U.S.C. §§?1155, 5107(b); 38?C.F.R. §§?4.1-4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for a compensable rating for right shoulder scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.118, Diagnostic Code 7800-7805. 4. The criteria for a compensable rating for left shoulder scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.118, Diagnostic Code 7800-7805. 5. The criteria for a rating of 10 percent, but no higher, for right hamstring strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.56, 4.73, Diagnostic Code 5313. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2003 to August 2017. In September 2021, the Veteran filed a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the May 2021 rating decision granting an initial evaluation for his service-connected PTSD, as well as the July 2021 rating decision which denied increased ratings for his service-connected kidney stones, right hamstring strain, right shoulder scars, and left shoulder scar, and denied entitlement to a TDIU. In November 2021, the Agency of Original Jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the May 2021 rating decision for the increased rating claim for PTSD, and considered the evidence of record at the time of the July 2021 rating decision for the increased rating claims for kidney stones, right hamstring strain, right shoulder scars, and left shoulder scar, as well as entitlement to a TDIU. In the November 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2021 rating decision for the increased rating claim for PTSD, and the July 2021 rating decision for the increased rating claims for kidney stones, right hamstring strain, right shoulder scars, and left shoulder scar, as well as entitlement to a TDIU. 38 C.F.R. § 20.301. If evidence was submitted after the AOJ issued the May 2021 rating decision, the Board did not consider it in its decision regarding an increased rating for PTSD, and if evidence was submitted after the AOJ issued the July 2021 rating decision, the Board did not consider it in its decision regarding increased ratings for kidney stones, right hamstring strain, right shoulder scars, and left shoulder scar, as well as entitlement to a TDIU. 38 C.F.R. §§ 20.300, 20.301, 20.801. As to the claims of increased ratings for PTSD, scars of the right and left shoulder, and a right hamstring strain, if the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. As to the claim for an increased rating for kidney stones and entitlement to a TDIU, because the Board is remanding these claims, any evidence the Board could not consider will be considered by the AOJ in the adjudication of these claims. 38 C.F.R. § 3.103(c)(2)(ii). Rating Reduction 1. The reduction of the rating for kidney stones from 20 percent to noncompensable was improper; to this extent, the appeal is therefore granted, and restoration of the 20 percent rating assigned for the Veteran's service-connected kidney stones, effective June 16, 2021, is granted. Here, the Veteran filed a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, in April 2021 which the AOJ took, in part, as a claim for an increased rating for his service-connected kidney stones. However, in a July 2021 rating decision, the AOJ reduced the rating assigned to the Veteran's service-connected kidney stones from 20 percent to noncompensable. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in rating of a service-connected disability when warranted by the evidence, but only after VA has met certain procedural and substantive requirements. Procedurally, where the reduction in the rating of a service-connected disability 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. 38 C.F.R. § 3.105(e). VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 349 (2000). Here, the procedural requirements of 38 C.F.R. § 3.105(e) are not for application because the reduction in rating did not result in a reduction or discontinuance of compensation payments currently being made since the Veteran's combined 90 percent rating remained in effect after the reduction. However, the Board finds that the reduction in rating for the Veteran's service-connected kidney stones was not clearly based upon a review of the entire history of the Veteran's disability. Specifically, although the June 2021 VA examination upon which the reduction was based states that the VA examiner reviewed the Veteran's claims file, for the reasons stated below, it appears as though there are VA treatment records that are potentially relevant to the Veteran's kidney stones that have not been associated with the claims file. Accordingly, the reduction in rating for the Veteran's service-connected kidney stones was not clearly based upon review of the entire history of the Veteran's disability and therefore, the restoration of the 20 percent rating assigned for the Veteran's kidney stones, effective June 16, 2021, is warranted. To that extent, the Veteran's appeal is granted. The Veteran's claim for a rating in excess of 20 percent for his service-connected kidney stones is remanded for the reasons stated below. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38?U.S.C. §?1155; 38?C.F.R. §?4.1. Disabilities must be viewed in relation to their entire history. 38?C.F.R. §?4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38?C.F.R. §?4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38?C.F.R. §?4.10. If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38?C.F.R. §?4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern; therefore, the more critical evidence consists of the evidence generated during the appeal period. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Yet, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38?U.S.C. §?5107(b); 38?C.F.R. §?4.3. 1. Entitlement to an initial rating of 70 percent, but no greater, for service-connected PTSD is granted. In the May 2021 rating decision, the AOJ granted service connection for PTSD and assigned a 30 percent disability rating. Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of ability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is assigned when there is reduced reliability and productivity in occupational and social situations due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotypical speech; panic attacks that occur more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for total occupational and social impairment. This may be due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the claimant's symptoms, but it must also make findings as to how those symptoms impact the claimant's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16?Vet. App.?436 (2002). Since the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission." 38?C.F.R. §?4.126(a). The Board must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination." Id. Accordingly, an examiner's classification of the level of psychiatric impairment is to be considered but is not determinative of the VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38?C.F.R. §?4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995). Turning to the evidence of record, a VA PTSD examination was obtained in November 2020 which the Board finds is inadequate because it is inconsistent with the other medical evidence of record, without explanation. Specifically, the VA examiner opined that the Veteran did not meet the diagnostic criteria for PTSD, but did not address the VA treatment records reflecting a diagnosis of PTSD. See, e.g. January 2020 VA Treatment Records (reflecting diagnosis of PTSD). A December 2020 VA treatment record reflects that the Veteran reported compliance with his medications. The Veteran reported that he thought his medications helped with his mood, but he still experienced anxiety. He reported sleeping well. The Veteran denied hopelessness and panic attacks but had continued hypervigilance. There was no psychosis or paranoia noted and he denied thoughts of self-harm. He denied illicit drug use. The Veteran was living with his wife, mother-in-law, and two daughters. He was studying computer science. The Veteran was alert, cooperative, and engageable. His mood was okay; his speech was fluent, with normal rate and tone; his thought process was linear and goal directed; he denied homicidal ideations, as well as audio or visual hallucinations; and his insight and judgment were fair. The Veteran was judged to not be at significant risk for self-harm. A February 2021 VA PTSD examination reflects a diagnosis of PTSD. It was noted that the Veteran was socially isolated, experienced anxiety in crowded settings, was chronically irritable, experienced sleep impairment, and was suspicious of others. The examiner opined that the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran was living with his wife, mother-in-law, and his two daughters. He had minimal contact with a son from a previous marriage. The Veteran reported that his wife told him that the family felt like they were walking on eggshells around him. He stated that he had social contact outside of his family only when people reached out to him, but he did not initiate contact with others. The Veteran reported that he had not been employed since leaving active duty. The VA examiner noted that the Veteran's treatment records reflect a psychiatric admission from January 2020 to February 2020 for decompensation in the context of increased psychosocial stressors, non-compliance with treatment, and continued cannabis use. The examiner also noted that mood stabilizers and anti-psychotics were prescribed at discharge, and that a September 2020 VA treatment record reflects that the Veteran (1) reported compliance with his medication, (2) denied suicidal and homicidal ideation, and (3) denied illicit drug use. In addressing the diagnostic criteria for PTSD, the VA examiner found that the Veteran experienced markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings); irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; hypervigilance; exaggerated startle response; and sleep disturbances. The symptoms associated with the Veteran's PTSD were noted to be depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The Veteran was cooperative and forthcoming and reported feeling a little agitated. Eye contact was minimal. Specifically, the Veteran had his hat pulled down low and often gazed at the floor. There was no evidence of thought disorder, his speech was within normal limits, and his gross cognition was intact. He denied homicidal and suicidal ideation. A March 2021 VA treatment record reflects that the Veteran reported compliance with his medications. The Veteran reported that he thought his medications helped with his mood, but he still experienced anxiety. He reported that he was not sleeping well and was having nightmares. The Veteran denied hopelessness and panic attacks but had continued hypervigilance. There was no psychosis or paranoia noted but he reported feeling intermittent passive suicidal ideation. He denied illicit drug use. The Veteran was living with his wife, mother-in-law, and two daughters. He was studying computer science. The Veteran was alert, cooperative, and engageable. His mood was anxious; his speech was fluent, with normal rate and tone; his thought process was linear and goal directed; he denied homicidal ideations, as well as audio or visual hallucinations; and his insight and judgment were fair. The Veteran was judged to not be at significant risk for self-harm. A letter written in March 2021 by the Veteran's VA clinician states that the Veteran was compliant with his treatment plan, he continued to experience anxiety and frequent nightmares, and he was not an imminent threat to himself or others. An April 2021 VA treatment record reflects that the Veteran displayed very obvious lack of eye contact, although he was cordial and cooperative. The Veteran reported seeing shadows or movements. He also reported that, after arriving home from his hospitalization in 2020, he heard something akin to animal noise. No paranoia was found. The Veteran reported that some days he woke up agitated, and some days he woke up "ok." The Veteran reported having trouble falling asleep. He also stated that he enjoyed spending time with his family and collecting videos, but that he had lost interest in working out and that he did not like to be in big crowds or at social gatherings. When asked about his ability to focus and/or concentrate, the Veteran stated that his attention span would trail off sometimes. The clinician noted that the Veteran's PTSD symptoms included flashbacks, nightmares 3 times a week, distressing memories, negative emotional state, withdrawal, emotional numbness, irritability/anger, sleep disturbances, and startle reflex. The Veteran's affect was congruent with his mood; his hygiene was adequate; his behavior was cooperative and reasonable; his insight and judgment were intact; he was alert and oriented in all spheres; his mood was disconnected; his perception was within normal limits; and his thought process and thought content were unremarkable. The Veteran reported that, in the previous month he had wished he was dead or wished he could go to sleep and not wake up, as well as had thoughts of killing himself, but he had not been thinking about how he might do this or had intention of acting on his thoughts. Nor had he started to work out or worked out the details of how to kill himself. In a statement submitted in April 2021, the Veteran stated that, due to his PTSD, he had nightmares, night terrors, and suicidal ideation from time to time. Specifically, he stated that when his wife asked him why he slept so much, he replied "why should I get up if there is really nothing to live for." However, he also stated that, on other days, he makes the best of his life and tries to be happy. In an April 2021 VA PTSD examination, the examiner opined that the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In addressing the diagnostic criteria for PTSD, the VA examiner found that the Veteran experienced markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; hypervigilance; and sleep disturbances. The symptoms associated with the Veteran's PTSD were noted to be depressed mood, anxiety, suspiciousness, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was pleasant and cooperative, was oriented in all major spheres, his speech was unremarkable, his thought process was logical and goal oriented. his mood was euthymic, and his affect varied depending upon the subjects discussed. The Veteran denied any suicidal or homicidal thoughts, his judgment was intact, and he demonstrated adequate insight into his current symptoms. The VA examiner noted that a November 2020 VA examination did not note any of the symptoms associated with PTSD, such as intrusive memories, nightmares, avoidance behaviors, social avoidance, hypervigilance, insomnia, and irritability that the Veteran acknowledged during the present examination. May and July 2021 VA treatment records reflect that the Veteran reported compliance with his medications. The Veteran reported that he thought his medications helped with his mood and anxiety. His sleep had improved, but he continued to have weird dreams and/or insomnia. The Veteran denied hopelessness and panic attacks but had continued hypervigilance. There was no psychosis or paranoia noted and he denied racing thoughts or thoughts of self-harm. He denied illicit drug use. The Veteran was living with his wife, mother-in-law, and two daughters. He was studying computer science. The Veteran was alert, cooperative, and engageable. His speech was fluent, with normal rate and tone; his thought process was linear and goal directed; he denied suicidal and homicidal ideations, as well as audio or visual hallucinations; and his insight and judgment were fair. The Veteran was judged to not be at significant risk for self-harm, however, the Veteran was noted to be chronically at elevated risk for harm to self as compared to the general population, although the risk was not acutely elevated. The Board finds that, resolving reasonable doubt in favor of the Veteran, the evidence establishes that his PTSD symptoms more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Specifically, the evidence establishes that, at various time throughout the appeal period, the Veteran's PTSD manifested with passive suicidal ideation. In addition, the VA examiners found that the Veteran experienced irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, thus establishing impaired impulse control. The Veteran also reported that his family and social relationships were impacted by his PTSD symptoms. The Board notes that the evidence does not establish that the Veteran did not have an inability to establish and maintain effective relationships, but rather only difficulty in establishing and maintaining effective relationships, and he did not have obsessional rituals; illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; or spatial disorientation. Therefore, resolving any reasonable doubt in favor of the Veteran, the Board finds that his PTSD symptoms more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood during the appeal period. However, the Board finds that a higher rating of 100 percent is not warranted during the period on appeal. The record does not reflect total occupational or social impairment in the Veteran's behavior. The Veteran maintained relationships with his family. In addition, as stated below, it appears as though the Veteran became employed full time during the appeal period. The Veteran was consistently found to be fully oriented, and to have normal speech, linear and goal oriented thought processes, and fair insight and judgment. In addition, the evidence is silent as to gross impairment in thought processes or communication, grossly inappropriate behavior, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), and/or memory loss for names of close relatives, own occupation, or own name. The Veteran did report visual hallucinations once, as well as two incidents of auditory hallucinations, but otherwise consistently denied audio and visual hallucinations. Thus, the Board finds that the evidence persuasively establishes that the Veteran did not have persistent delusions or hallucinations. The Board also acknowledges that the Veteran was found to be chronically at elevated risk for harm to self as compared to the general population, although the risk was never acutely elevated during the appeal period. Thus, the Board finds that the evidence persuasively establishes that this did not rise to the level of persistent danger of hurting self, as he was consistently found to be at a low risk of self-harm. In sum, the Board finds that the evidence persuasively establishes that the frequency, severity, and duration of his PTSD symptoms did not manifest in total occupational and social impairment. Accordingly, the evidence persuasively weighs against a finding that a rating in excess of 70 percent is warranted. In denying a rating in excess of 70 percent for the Veteran's PTSD, the Board acknowledges that the Veteran was hospitalized for four days in January to February 2020 due to his PTSD symptoms, however, this occurred prior to the effective date for service-connection for PTSD. In addition, the evidence establishes that the Veteran's hospitalization was for decompensation due to non-compliance with his medication, however, during the appeal period, the Veteran was compliant with his medication and the medication improved his PTSD symptoms (as reflected in the evidence discussed above). In this regard, the Board notes, the rating criteria for Diagnostic Code 9411, applicable here, expressly contemplates the use of medications which improve psychiatric symptomatology. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (providing a noncompensable evaluation for mental conditions when "symptoms are not severe enough... to require continuous medication" and a 10 percent evaluation for when "symptoms [are] controlled by continuous medication"). Thus, the Board has appropriately taken into account the ameliorative effects of medication in evaluating the Veteran's PTSD during the appeal period. See McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016). In sum, resolving reasonable doubt in favor of the Veteran, the Board finds that his PTSD symptoms more nearly approximate the criteria for a 70 percent disability rating during the appeal period. However, the Board also finds that the evidence persuasively weighs against a finding that the Veteran's PTSD symptoms warrant a 100 percent rating. In this regard, the benefit of the doubt doctrine does not apply. See 38?U.S.C. §?5107(b); 38?C.F.R. §?3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 2. Entitlement to a compensable rating for scars, right shoulder arthroscopy, is denied. 3. Entitlement to a compensable rating for surgical scar, left shoulder, is denied. As stated above, the Veteran filed a VA Form 21-8940 in April 2021 which the AOJ took, in part, as a claim for an increased rating for his service-connected right and left shoulder scars. The Veteran's right shoulder scars are currently rated as noncompensable pursuant to Diagnostic Code 7805. The Veteran's left shoulder scar is currently rated as noncompensable pursuant to Diagnostic Code 7802. The rating criteria for scars are outlined in Diagnostic Codes 7800 through 7805. 38 C.F.R. § 4.118. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that were pending before the AOJ on or after August 13, 2018, as is the case here. Diagnostic Code 7800 relates to scars of the head, face, or neck, and is therefore not applicable in the Veteran's case. Diagnostic Code 7801 pertains to burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. A scar with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrants a 10 percent rating. A scar with an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) warrants a 20 percent rating. A scar with an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) warrants a 30 percent rating. A scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 40 percent rating. Diagnostic Code 7802 pertains to 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, and provides a maximum 10 percent rating for a scar other than on the head, face, or neck that is not associated with soft tissue damage and affects an area or areas of 144 square inches (929 sq. cm.) or greater. Diagnostic Code 7803 was eliminated from the VA Rating Schedule prior to the period on appeal, with some of its provisions being subsumed into Diagnostic Code 7804. See 73 Fed. Reg. 54710 (Oct. 23, 2008). Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful; a 20 percent rating for three or four scars that are unstable or painful; and a 30 percent rating for five or more scars that are unstable or painful. Note 1 to Diagnostic Code 7804 explains that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 indicates that, if one or more scars are both unstable and painful, a 10 percent rating should be added to the evaluation that is based on the total number of unstable or painful scars. Diagnostic Code 7805 indicates that any disabling effects not considered under Diagnostic Codes 7800 through 7804 must be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118. The Board notes that the evidence regarding the severity of the Veteran's service-connected scars during the appeal period is extremely limited. A July 2021 VA scars examination reflects that the Veteran had scars on both his right and left shoulders. Specifically, the Veteran had four non-tender, linear scars on his right shoulder, anterior aspect, one measuring 1.5 centimeters by 0.1 centimeters, and the other three each measuring 1 centimeter by 0.1 centimeters, for an approximate total area of 0.8 centimeters squared. The Veteran also had a non-tender, linear scar on his left shoulder, measuring 9 centimeters by 0.3 centimeters, for an approximate total area of 2.3 centimeters squared. The VA examiner found that the Veteran's scars were not associated with underlying soft tissue damage and they were not painful or unstable. The Veteran reported that the scars were not painful. The scars did not result in limitation of function or impact the Veteran's ability to work. The Board finds that a compensable rating is not warranted for the Veteran's right shoulder scars or left shoulder scar. First, Diagnostic Code 7801 is not applicable to either the Veteran's right or left shoulder scars, as the evidence persuasively establishes that they are not associated with underlying soft tissue damage. Second, a compensable rating is not warranted for the Veteran's right shoulder scars and left shoulder scar under Diagnostic Code 7802, because, although the scars are not associated with underlying soft tissue damage, the evidence establishes that they affect an approximate total area of less than 929 centimeters squared. In this regard, the Board notes that Note 2 to Diagnostic Code 7802 states that a separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body, or, 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. However, even if the Veteran's right and left shoulder scars were considered together, a compensable rating would still not be warranted as the total approximate area affected would still be under 929 square centimeters. Third, Diagnostic Code 7804 is not applicable as the evidence persuasively establishes that none of the Veteran's scars are unstable or painful. Finally, the evidence persuasively establishes that there are no other disabling effects associated with the Veteran's right shoulder scars and/or left shoulder scar, and thus, a rating under Diagnostic Code 7805 is not warranted. In sum, the Board finds that the evidence is persuasively against a finding that a compensable rating is warranted for the Veteran's right shoulder scars and/or his left shoulder scar. In this regard, the benefit of the doubt doctrine does not apply. See 38?U.S.C. §?5107(b); 38?C.F.R. §?3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 4. Entitlement to a 10 percent rating, but no higher, for right hamstring strain is granted. As stated above, the Veteran filed a VA Form 21-8940 in April 2021 which the AOJ took, in part, as a claim for an increased rating for his service-connected right hamstring strain. The Veteran's right hamstring strain is currently rated as noncompensable pursuant to Diagnostic Code 5313. Diagnostic Code 5313 pertains to a disability of Muscle Group XIII, which is comprised of the posterior thigh group and hamstring complex of 2-joint muscles: 1) biceps femoris, 2) semimembranosus, and 3) semitendinosus. The functions of Muscle Group XIII include extension of hip and flexion of knee; outward and inward rotation of the flexed knee; and, acting with the rectus femoris and sartorius, synchronizing simultaneous flexion of hip and knee and extension of hip and knee by belt-pulley action at the knee joint. A slight disability warrants a noncompensable rating, a moderate disability warrants a 10 percent disability rating, a moderately severe disability warrants a 30 percent disability rating, and a severe disability warrants a maximum 40 percent rating. 38 C.F.R. § 4.73, Diagnostic Code 5313. VA regulations provide that the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). Ratings of slight, moderate, moderately severe, or severe for Diagnostic Codes 5301 through 5323 will be determined based upon the criteria contained in 38 C.F.R. § 4.56. 38 C.F.R. § 4.73, Note 2. More specifically, evaluation of muscle injuries as slight, moderate, moderately severe, or severe, is based on the type of injury, the history and complaints of the injury, and objective findings. 38 C.F.R. § 4.56(d). Slight disability of muscles occurs where there are simple wounds of muscle without debridement or infection. The history and complaint of symptoms should include service department records showing superficial wound with brief treatment and return to duty; healing with good functional results; and no cardinal signs or symptoms of muscle disability such as loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. Objective findings should include minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue. Id. Moderate disability of muscles is where there are through-and-through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. History and complaints should include service department record or other evidence of in-service treatment for the wound; record of consistent complaint of one or more of the cardinal signs and symptoms (loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement); and particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue; some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. Moderately severe disability of muscles is where there are through-and-through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. History and complaints include service department record or other evidence showing hospitalization for a prolonged period for treatment of wound; record of consistent complaint of cardinal signs and symptoms (loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement); and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating track of missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side; tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. Severe disability of muscles includes through-and-through, or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. History and complaints include service department record or other evidence showing hospitalization for a prolonged period for treatment of wound; record of consistent complaint of cardinal signs and symptoms (loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement) worse than those shown for moderately severe muscle injuries; and, if present, evidence of inability to keep up with work requirements. Objective findings should include ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area; muscles swell and harden abnormally in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle disability: (1) x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile, (2) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle, (3) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests, (4) visible or measurable atrophy, (5) adaptive contraction of an opposing group of muscles, (6) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle, and/or (7) induration or atrophy of an entire muscle following simple piercing by a projectile The United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.56(d) is essentially a totality-of-the-circumstances test and that no single factor is per se controlling. Tropf v. Nicholson, 20 Vet. App. 317 (2006) (citing Robertson v. Brown, 5 Vet. App. 70 (1993). The Board notes that the evidence regarding the severity of the Veteran's service-connected right hamstring strain during the appeal period is very limited. A June 2021 muscle injury examination reflects that the Veteran had a non-penetrating muscle injury (such as a muscle strain, torn Achilles tendon, or torn quadriceps muscle) of Group XIII on the right side. In describing the history of the injury, the Veteran stated that he had recurrent tingling and pulling type of pain, rating it as 3 to 4 out of 10. The Veteran also reported that he worked full time as a supply coordinator and that his right hamstring pain sometimes impaired his ability to do prolonged walking and standing. The Veteran did not have any other conditions including history of rupture of the diaphragm with herniation; extensive muscle hernia of any muscle, without other injury to the muscle; injury to the facial muscles; rhabdomyolysis; or compartment syndrome. The Veteran did not have any associated scars, known fascial defects, or evidence of fascial defects. In addition, the muscle injury did not affect muscle substance or function. The Veteran was noted to have the following cardinal sign and symptom of muscle disability: occasional fatigue and/or pain in muscle group XIII on the right side associated with his muscle injury. Muscle strength testing was normal, the Veteran did not have muscle atrophy, and he did not use assistive devices. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's right hamstring strain is a moderate disability, at most. In this regard, there are service department records establishing in-service treatment for the wound. Specifically, a June 2011 service treatment record reflects that the Veteran was treated for an acute hamstring strain. The Veteran complained of right posterior thigh pain for a period of several hours that was increased during sprinting. Aggravating factors were noted to include walking, running, and pulling off boots. There were no alleviating factors. On examination, the Veteran's gait was decreased in stance time and there was decreased knee extension at heel strike on the right. There was no effusion and active range of motion of the right knee was within normal limits, however, discomfort was noted with end range of knee extension. The Veteran was educated on the condition and treatment plan, instructed and shown how to perform range of motion exercises, and was told to follow up with any problems. The goals were noted to be for the Veteran to demonstrate normal gait pattern in 2 to 3 weeks and to be able to return to running in 4 to 6 weeks. Second, the June 2021 VA examination establishes that the Veteran has consistently experienced fatigue and/or pain associated with his right hamstring strain, one of the cardinal signs and symptoms of muscle disability. Although the Veteran's right hamstring strain has not presented with other criteria for establishing a moderate muscle disability, the Board notes that no single factor is per se controlling. Tropf, 20 Vet. App. 317. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that a 10 percent rating is warranted for the Veteran's service-connected right hamstring strain. The Board acknowledges the effective date of an award of an increased evaluation can be assigned up to one year prior to the date of an increased rating claim if it is factually ascertainable that an increase in disability occurred during this period. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Here, the Veteran has not reported experiencing any definitive increase in his right hamstring strain in the year prior to submitting a VA Form 21-8940 in April 2021, and there are no treatment records or examination reports that support any definitive increase in disability in the year prior to April 2021. As such, the Board finds there is not a factually ascertainable increase in disability as to the Veteran's right hamstring strain in the one-year period prior to the Veteran submitting a VA Form 21-8940 in April 2021. The Board also finds that the evidence is persuasively against a finding that a rating in excess of 10 percent is warranted for the Veteran's right hamstring strain. A moderately severe disability of muscles is where there are through-and-through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. The evidence clearly establishes that the Veteran's injury was not through and through or a deep penetrating wound. In addition, the evidence of record is silent as to any hospitalization for a prolonged period for treatment of wound. The evidence also establishes that there are no scars, known fascial defects, evidence of fascial defects, or muscle atrophy associated with the right hamstring strain. Finally, although the evidence establishes that the fatigue and pain resulting from the Veteran's right hamstring strain impaired his ability to walk and stand for long periods of time, the Board finds that the evidence is persuasively against a finding that this resulted in an inability to keep up with his work requirements. In conclusion, the Board finds that the evidence establishes that a 10 percent rating is warranted for the Veteran's right hamstring strain. However, the Board also finds that the evidence is persuasively against a finding that a rating in excess of 10 percent is warranted for the Veteran's right hamstring strain. In this regard, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for service-connected kidney stones is remanded. The Board finds that remand is warranted as there appear to be potentially relevant VA treatment records that have not been associated with the claims file. Specifically, a May 2021 VA treatment record reflects that the Veteran was approved for care from a urologist through the VA Community Care Program. In June 2021, treatment records from treatment provided through the Community Care Program were electronically scanned. However, the Board does not have access to these treatment records and they have not been otherwise associated with the claims file. Accordingly, remand is warranted to associate any potentially relevant missing VA treatment records with the claims file. 2. Entitlement to a TDIU is remanded. A VA Form 21-8940 submitted in April 2021 reflects that the Veteran had not been employed since he left active duty service in August 2017. However, June 2021 VA examinations reflect that the Veteran reported that he was working full time as a supply coordinator. Thus, the evidence reflected that the Veteran was employed for at least part of the period for which he sought entitlement to a TDIU, however, no development was taken to obtain information from the Veteran and/or his employer as to the dates and circumstances of such employment. Accordingly, remand is warranted for further development. The matters are REMANDED for the following action: (Continued on the next page) ? 1. Obtain any outstanding VA treatment records and associate them with the claims file, including those only available as electronic health records which the Board does not have access to. 2. Take the steps necessary to obtain information regarding the Veteran's employment as it relates to his claim of entitlement to a TDIU. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elias, M 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.