Citation Nr: 24023391
Decision Date: 06/13/24	Archive Date: 06/13/24

DOCKET NO. 20-21 663
DATE: June 13, 2024

ORDER

1. Entitlement to an effective date prior to October 9, 2018, for the award of service connection for left thigh impairment, is denied.

2. Entitlement to an effective date prior to October 9, 2018, for the award of service connection for right thigh impairment, is denied.

3. Entitlement to an effective date prior to October 9, 2018, for the award of service connection for a neck disability, is denied.

4. Entitlement to an effective date prior to October 9, 2018, for the award of service connection for left upper extremity radiculopathy, is denied.

5. Entitlement to an effective date prior to October 9, 2018, for the award of service connection for right upper extremity radiculopathy, is denied.

6. Entitlement to an effective date prior to October 9, 2018, for the award of service connection for lumbar spine scar, is denied.

7. Entitlement to an effective date prior to October 9, 2018, for the award of the increased 10 percent rating for hypertension, is denied.

8. The appeal challenging the propriety of the reduction in the rating for the Veteran's right hip strain (limitation of flexion of the thigh), from 10 percent to 0 percent, from October 25, 2018, is granted; restoration of a 10 percent rating from the effective date of the reduction is granted.

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

10. Entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy is denied.

11. Entitlement to a rating in excess of 20 percent for right upper extremity radiculopathy is denied.

12. Entitlement to a compensable rating for a lumbar spine scar is denied.

REMANDED

13. Entitlement to a rating in excess of 20 percent for right shoulder disability is remanded.

14. Entitlement to a rating in excess of 10 percent for left hip strain (limitation of flexion of the thigh) is remanded.

15. Entitlement to a rating in excess of 10 percent for right hip strain (limitation of flexion of the thigh) is remanded.

16. Entitlement to a rating in excess of 0 percent for left hip strain (limitation of extension of the thigh) is remanded.

17. Entitlement to a rating in excess of 0 percent for right hip strain (limitation of extension of the thigh) is remanded.

18. Entitlement to a rating in excess of 10 percent for right thigh impairment is remanded.

19. Entitlement to a rating in excess of 10 percent for left thigh impairment is remanded.

20. Entitlement to a rating in excess of 10 percent for a neck disability is remanded.

21. Entitlement to a rating in excess of 20 percent for a lumbar spine disability is remanded.

22. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

FINDINGS OF FACT

1. The Veteran did not challenge a June 2016 rating decision as it related to the matters of hypertension, bilateral hip, and bilateral knee disabilities. 

2. On October 9, 2018, VA received an Intent to File a Claim for Compensation, reflecting his intent to file a claim for compensation.

3. On October 10, 2018, VA received completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and VA Form 21-526EZ seeking service connection for a neck condition, increased ratings for bilateral hip, lumbar spine, right shoulder, and hypertension disabilities, a TDIU, and a temporary total disability rating due to convalescence. 

4. Service connection for right and left thigh impairment, a neck disability, right and left upper extremity radiculopathy, and lumbar spine scar were all made effective October 9, 2018. 

5. An effective date of October 9, 2018 has been assigned for the award of increased (to 10 percent) rating for the Veteran's hypertension. 

6. It is not factually ascertainable from the record that an increase in severity of the Veteran's hypertension had occurred within the year prior to VA's receive of his claim seeking an increased rating for hypertension. 

7. The reduction of the rating for the Veteran's right hip strain (limitation of flexion of the thigh) disability was based on a single examination, suggesting some improvement; it is not shown that the improvement reflects improvement in ability to function under ordinary conditions of life and work.

8. The Veteran's hypertension is not shown to have been manifested by diastolic pressures predominantly 110 or more, or systolic pressures predominantly 200 or more.

9. The Veteran's left and right upper extremity radiculopathy are not shown to have been manifested in moderate incomplete paralysis of the middle radicular nerve group.

10. The Veteran's lumbar spine scar is superficial, total far less than 144 square inches in area, and is not shown to be painful or unstable, or to cause any functional impairment.

CONCLUSIONS OF LAW

1. An effective date earlier than October 9, 2018 for the awards of service connection for left and right thigh impairment, a neck disability, left and right upper extremity radiculopathy, and a lumbar spine scar is not warranted. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400.

2. The criteria for an earlier effective date prior to October 9, 2018, for the award of an increased (to 10 percent) rating for hypertension, have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400, 4.1, 4.3, 4.104, Diagnostic Code (Code) 7101.

3. The reduction of the rating for the right hip strain (limitation of flexion of the thigh) disability from 10 percent to 0 percent was not in compliance with regulatory provisions governing such actions and was not proper; restoration of a 10 percent rating from the date of reduction is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.344, 4.3, 4.71a, Code 5252.

4. A rating in excess of 10 percent for hypertension is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.104, Code 7101.

5. A rating in excess of 10 percent for left upper extremity radiculopathy is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.7, 4.124, 4.124a, Code 8711.

6. A rating in excess of 10 percent for right upper extremity radiculopathy is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.7, 4.124, 4.124a, Code 8711.

7. A compensable rating for a lumbar spine scar is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.118, Codes 7800, 7802, 7804, 7805.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 2013 to May 31, 2016. These matters are before the Board of Veterans' Appeals (Board) on appeal of November 2018 and January 2019 Department of Veterans Affairs (VA) rating decisions.

The statement of the cases (SOC) in these matters were received in March 2020 and the case was certified to the Board in July 2020. After the case was certified to the Board, VA generated evidence was associated with the file without a valid waiver of Agency of Original Jurisdiction (AOJ) initial consideration; a supplemental SOC (SSOC) was not issued. Here, a December 2023 VA correspondence letter informed the Veteran of additional evidence since the SOC and docketing letter and requested whether he wanted to submit a waiver of AOJ initial review. In January 2024, VA received a letter from the Veteran waiving his right to have his case remanded to the AOJ for review of the additional evidence.

Earlier Effective Dates

Except as otherwise provided, the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

The effective date of an award of compensation based on a reopened claim (after a final disallowance) is the date of the claim to reopen or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2), (r). If there is a prior final VA denial of the benefit sought, the effective date cannot be earlier than a subsequent claim to reopen. See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved clear and unmistakable error. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a).

The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date; otherwise, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). When medical records indicate an increase in a service-connected disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within one year of the date of the report of examination, hospitalization, or medical treatment. 38 C.F.R. § 3.400 (o)(2).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p).

Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an intent to file. Such intent to file must identify the general benefit sought (e.g., compensation, pension). If the formal claim is received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the intent to file. 38 C.F.R. § 3.155. On the other hand, if the formal claim is received after one year of its receipt, then the effective date will be the date of VA's receipt of the formal application form. Jernigan v. Shinseki, 25 Vet. App. 220, 229 (2012). 

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

VA is responsible for determining whether the evidence persuasively favors one side or another. 38 C.F.R. § 4.3. When there is an approximate or nearly equal balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran and the claim will be granted on the merits. 38 U.S.C. § 5107(b). When the evidence persuasively favors against the claims of the Veteran, the benefit of the doubt doctrine is inapplicable and the claim will be denied on its merits. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc).

The June 2016 rating decision awarded service connection, in notable part, for left and right hip strain, left and right knee strain, and hypertension. The Veteran did not express disagreement with that decision and new and material evidence was not received. Therefore, it is final. 38 C.F.R. § 7105.

In March 2017, VA received VA Forms 21-8940 and 21-526EZ, seeking entitlement to a TDIU rating and increased ratings for his right shoulder and right lower extremity radiculopathy disabilities. In the TDIU application, he specified that his acquired psychiatric disability prevented him from maintaining substantially gainful employment. 

A May 2017 rating decision awarded an increased rating for his acquired psychiatric disability, effective March 14, 2017, and denied increased ratings for his right shoulder and right lower extremity radiculopathy disabilities. A subsequent May 2017 rating decision denied entitlement to a TDIU rating.

The Veteran filed a notice of disagreement (NOD) with the May 2017 decisions and May2018  statement of the cases (SOC) continued to deny the matters. However, the Veteran did not submit a substantive appeal for those matters. Therefore, it is final. 38 C.F.R. § 7105. 

On October 10, 2018, VA sent the Veteran a letter acknowledging the receipt of the intent to file received on October 9, 2018 and informed him that if a completed application is received within one year from the date of the intent to file, then VA may be able to compensate him from the date VA received his intent to file.

On October 10, 2018, VA received completed VA Forms 21-8940 and 21-526EZ, that included claims for a TDIU rating, service connection for a neck disability, and increased ratings for the left and right hip, lumbar spine, right shoulder, and hypertension disabilities. In his October 2018 TDIU application, he alleged he was unable to maintain substantially gainful employment due to his service-connected lumbar spine disability.

A November 2018 rating decision awarded an increase (to 10 percent) rating for hypertension, effective October 9, 2018 and service connection for left and right thigh impairment, also effective October 9, 2018 (the date of the intent to file form).

A January 2019 rating decision awarded service connection for a neck disability, left and right upper extremity radiculopathy, and lumbar spine scar, all effective October 9, 2018 (the date of the intent to file form).

In his March 2019 NOD, November 2019 NOD, and May 2020 substantive appeals, the Veteran (via his attorney) indicated that he disagreed (in part) with the effective dates of the awards. The basis for the disagreement and the effective dates sought were not identified.  

1. 2. 3. 4. 5. 6. Entitlement to an effective date prior to October 9, 2018, for the grants of service connection for left and right thigh impairment, a neck disability, left and right upper extremity radiculopathy, and a lumbar scar disability, is denied. 

Applying the facts in this case to governing law and regulations (as explained above), the Board finds that an effective date earlier than October 9, 2018 for the grants of service connection for left and right thigh impairment, a neck disability, left and right upper extremity radiculopathy, and a lumbar scar disability is not warranted. 

The critical question in these matters is when the Veteran first filed a formal claim seeking service connection for left and right thigh impairment, a neck disability, left and right upper extremity radiculopathy, and a lumbar scar. 

The Veteran did not appeal the June 2016 rating decision, which assigned the initial ratings for his service-connected hip disabilities and hypertension. That decision is final. 38 U.S.C. § 7105. 

The first communication from the Veteran to VA expressing intent to seek service connection for unspecified compensation benefits was received on October 9, 2018. He submitted a formal application for increased ratings for his service-connected hip and back disabilities and service connection for a neck condition within one year of the receipt of his intent to file a claim. 

The Veteran's October 2018 formal claim did not explicitly include claims of service connection for a left and right thigh impairment (separate from the already service-connected hip disabilities), a lumbar scar, or bilateral upper extremity radiculopathy. However, the claims of service connection for left and right thigh impairment disabilities was raised and awarded within the context of the claims for increased ratings for the bilateral hip disabilities; a lumbar spine scar was raised and awarded within the context of his claim for an increased rating for his back disability; and his claim of service connection for his left and right upper extremity radiculopathy was raised and awarded within the context of the neck claim. See Wilson v. McDonough, 35 Vet. App. 103, 107 (2022). 

Nothing in the record reflects claims seeking service connection for a left and right thigh impairment, a neck disability, left and right upper extremity radiculopathy, and a lumbar scar was submitted to, or received by, VA prior to October 9, 2018.

The Board has considered whether the Veteran's March 2017 TDIU application could be interpreted to encompass a claim of an increased rating for his bilateral hip disabilities, and thereby service connection for left and right thigh impairment, and finds it cannot. In the March 2017 TDIU application, the Veteran specified that his claim of a TDIU was due to only his service-connected acquired psychiatric disability. The AOJ interpreted his March 2017 TDIU claim as also a claim for an acquired psychiatric disability and issued the May 2017 rating decision. The record does not show, nor did the Veteran allege in March 2017, that he was unemployable due to his hip or lumbar spine disabilities, which might encompass claims for an increased rating for his service-connected hip or lumbar spine disabilities and thereby encompass claims of service connection for left and right thigh impairments or a lumbar spine scar.  

The Board is bound by governing law and regulations, and has no authority to award benefits not authorized by governing law. Because the Veteran is not shown to have filed a formal or informal application for service connection for right and left thigh impairment disabilities (separate from the already service-connected bilateral hip disabilities), a neck disability, left and right upper extremity radiculopathy, and a lumbar scar disability prior to October 9, 2018, VA is precluded from granting an effective date prior to October 9, 2018 for the award of service connection for right and left thigh impairment (separate from the already service-connected bilateral hip disabilities), a neck disability, left and right upper extremity radiculopathy, and a lumbar scar. As the AOJ has already assigned the earliest possible effective date under governing law given the undisputed facts in this case, the law is dispositive in this matter. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 

Considering the foregoing, the Board finds that an effective date prior to October 9, 2018 for the grants of service connection for left and right thigh impairment, a neck disability, left and right upper extremity radiculopathy, and a lumbar scar disability is not warranted; the appeals in these matters must be denied.

7. Entitlement to an earlier effective date for the award of the increased (10 percent) rating for hypertension is denied.

The Veteran's hypertension is rated under Code 7101, which provides for a 10 percent rating when diastolic pressures are predominantly 100 or more; or systolic pressures are predominantly 160 or more; or as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more and requires continuous medication for control. 

A 20 percent rating is assigned when diastolic pressures are predominantly 110 or more or systolic pressures are predominantly 200 or more. A 40 percent rating is assigned when diastolic pressures are predominantly 120 or more; and a 60 percent rating is assigned when diastolic pressures are predominately 130 or more. 38 C.F.R. § 4.104.

The Board has considered whether the Veteran's March 2017 TDIU application could be interpreted to encompass a claim of an increased rating for hypertension, and finds it cannot. In the March 2017 TDIU application, the Veteran specified that his claim of a TDIU was due to only his service-connected acquired psychiatric disability. Accordingly, the AOJ interpreted his March 2017 TDIU claim as also a claim for an acquired psychiatric disability. The record does not show, nor did the Veteran allege in March 2017, that he was unemployable due to his hypertension.

Following the June 2016 rating decision, the first communication from the Veteran to VA expressing intent to seek unspecified compensation benefits was received on October 9, 2018. He submitted a formal application for increased ratings for hypertension within one year of the receipt of his intent to file a claim

Accordingly, the relevant period for consideration therefore begins one year prior, in October 2017. The critical question remaining before the Board is whether entitlement to an increased (to 10 percent) rating arose between October 9, 2017 to October 9, 2018.

The Veteran's private and federal treatment records between October 2017 to October 2018 note numerous blood pressure readings and that he was prescribed blood pressure medication. No instances showed a systolic reading of 160 or higher or that diastolic pressures of 100 or higher.

In the October 2018 VA hypertension examination (following the receipt of his claim for an increased rating), the Veteran reported his hypertension has progressed. It was noted he took continuous medication for hypertension. His blood pressure readings were: 160/96, 142/100, and 146/105. It was found the Veteran had a history of a diastolic blood pressure elevation to predominately 100 or more. 

A November 2018 rating decision awarded an increased 10 percent rating for hypertension, effective October 9, 2018. 

The Veteran's attorney has not argued with any specificity the theory of entitlement for the benefit sought, or even the earlier effective date sought; none is evident.

On longitudinal review of the evidence, the Board finds that the disability picture for the Veteran's hypertension presented between October 9, 2017 and October 9, 2018 is more nearly consistent with the level of impairment by the 0 percent rating assigned for that period, rather than those for the 10 percent rating sought. The Board notes the criteria for rating hypertension specifically takes into account the ameliorative effects of medication. Therefore, the ameliorative effects of medications may not be discounted, but are taken into consideration. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016); see Jones v. Shinseki, 26 Vet. App. 56 (2012). Blood pressure readings prior to the October 2018 VA examination do not reflect any systolic pressure readings 160 or higher or diastolic pressure readings of 100 or higher, consistent with a 0 percent rating. Such objective findings weigh against a finding that his hypertension ascertainably increased between October 2017 and October 2018. The findings on the October 2018 VA examination show a worsening of his hypertension, which lead to the award of an increased rating for hypertension. 

Considering the foregoing, the Board finds that an effective date earlier than October 9, 2018 for the award of a 10 percent rating for hypertension is not warranted. The appeal in this matter must be denied.

Reduction

8. Restoration of a 10 percent rating for the right hip strain (limitation of flexion of the thigh) is granted.

In October 2018, VA received a claim seeking an increased right for the right hip disability. A November 2018 rating decision reduced the rating of his right hip strain (limitation of flexion of the thigh) disability from 10 percent to 0 percent, effective October 25, 2018 (the date of the most recent VA examination). The November 2018 rating decision also awarded service connection for several other disabilities and awarded compensable ratings, effective October 9, 2018.

As a general rule, when the rating for a service-connected disability is reduced, VA must abide by specific procedural protections. 38 C.F.R. § 3.105(e). Prior to the November 2018 rating decision, which implemented the rating reduction for the right hip (limitation of flexion of the thigh), the Veteran's combined rating was 80 percent. Following the implementation of the reduction for the right hip as well as simultaneous grants of service connection for other disabilities, his combined rating increased to 90 percent. 

Generally speaking, 38 C.F.R. § 3.105(e) is applicable when (1) there is a reduction in evaluation of a service-connected disability; and (2) the lower evaluation would result in a reduction of compensation payments currently being made. If a rating decision reduces the rating for a disability, but there is no corresponding reduction in the Veteran's combined disability rating, the notice mandated in 38 C.F.R. § 3.105(e) is not required. VAOPGCPREC 71-91 (Nov. 7, 1991). The reduction did not result in a reduction in the Veteran's overall compensation payments. Therefore, the Board finds that compliance with the notice provisions of 38 C.F.R. § 3.105(e) was not required in this instance.

A June 2016 rating decision awarded an initial 10 percent rating under Code 5252 for right hip strain (limitation of flexion of the thigh), effective June 1, 2016 (the day following separation from service). Since the 10 percent rating for the right hip was in effect for less than 5 years, the provisions of 38 C.F.R. § 3.344 do not apply. Accordingly, the analysis proceeds to whether the reduction was warranted by the factual record.

The critical question in this matter is whether the rating reduction was warranting by a showing of improvement of the service-connected disability. VA regulations require that each disability be viewed in relation to its history. 38 C.F.R. § 4.1. The provisions of 38 C.F.R. § 4.2 establish that it is the responsibility of the rating specialist 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 present. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. 

In any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413, 420-421 (1993). Further, a rating reduction must be supported by evidence on file at the time of the reduction, although pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992).

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). As the reduction occurred prior to the updated regulation, only the old regulation apply.

Under Code 5252, a 10 percent rating is warranted for flexion of the thigh limited to 45 degrees. 38 C.F.R. § 4.71a.

In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements.

Under 38 C.F.R. § 4.45, consideration must be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

In the October 2018 VA hip and thigh examination, the Veteran reported he experienced flare ups with physical activity. The examiner opined that pain, weakness, and lack of endurance caused functional loss with repeated use over time and during flare ups. However, the examiner opined they were unable to describe the functional loss in terms of range of motion. They explained the Veteran reported the loss of range of motion during flare ups and with repeated use over time variable, depending on how strenuously the joint was used. They stated "[a]t its worst he cannot fully flex the hips due to pain, weakness, and lack of endurance, but there were times when the loss of ROM is minimal." The examiner does not adequately explain why there were unable describe his loss of motion with repeated use over time or during flare ups other than saying the loss is variable. 

Upon longitudinal review of the record, the Board finds that the reduction in the rating for right hip strain (limitation of flexion of the thigh) from 10 percent to 0 percent was improper because the October 2018 VA examination (on which the reduction was based) did not demonstrate improvement that reflects an improvement in the ability to function under the ordinary conditions of life and work and appears to be based on a difference in the thoroughness of the examination. See Faust v. West, 13 Vet. App. 342 (2000). The October 2018 VA examiner identified there was functional loss of his right hip with repeated use over time and during flare ups but failed to adequately opine the loss of function in terms of range of motion in accordance with Sharp v. Shulkin, 29 Vet. App. 26 (2017). While the Veteran exhibited slight improvement in his right hip initial range of motion measurements at the October 2018 VA examination, such examination did not demonstrate an improvement that actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. 

Therefore, the Board finds that the reduction in the rating for his right hip strain (limitation of flexion of the thigh) disability from 10 percent to 0 percent was improper. Restoration of a 10 percent rating from the effective date of the reduction is warranted.

Increased Ratings

Disability evaluations are determined by the application of a schedule of rating, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. 

Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings for distinct periods when varying degrees of disability were shown can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. §§ 3.157, 3.400(o)(2). 

Where there is a question as to which of two ratings shall be assigned, the higher criteria will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 

VA is responsible for determining whether the evidence persuasively favors one side or another. 38 C.F.R. § 4.3. When there is an approximate or nearly equal balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant and the claim will be granted on the merits. 38 U.S.C. § 5107(b). When the evidence persuasively favors against the claims of the Veteran, the benefit of the doubt doctrine is inapplicable and the claim will be denied on its merits. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc).

9. Entitlement to an increased rating for hypertension is denied.

The Veteran's hypertension is rated under Code 7101, which provides for a 10 percent rating when diastolic pressures are predominantly 100 or more; or systolic pressures are predominantly 160 or more; or as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more and requires continuous medication for control. 

A 20 percent rating is assigned when diastolic pressures are predominantly 110 or more or systolic pressures are predominantly 200 or more. 

A 40 percent rating is assigned when diastolic pressures are predominantly 120 or more; and a 60 percent rating is assigned when diastolic pressures are predominately 130 or more. 38 C.F.R. § 4.104.

As discussed above, the Veteran's claim for an increased rating for hypertension was received on October 9, 2018.

The Veteran's private and federal treatment records during the period on appeal note numerous blood pressure readings and that he was prescribed blood pressure medications at varying dosages. None of the diastolic pressure readings in his treatment records were found to be 110 or more. In addition, none of his systolic pressure readings in his treatment records were found to be 200 or more.

In the October 2018 VA hypertension examination (following the receipt of his claim for an increased rating), the Veteran reported his hypertension has progressed and includes symptoms of heart palpitations and lightheadedness, which occur three to four times per week. It was noted he took continuous medication for hypertension. His blood pressure readings were: 160/96, 142/100, and 146/105. It was found the Veteran had a history of a diastolic blood pressure elevation to predominately 100 or more.

The Veteran's hypertension has been rated 10 percent from October 9, 2018. The critical question remaining before the Board is whether, at any time since October 9, 2018, the Veteran's hypertension was manifested by diastolic pressures predominantly 110 or more or systolic pressures predominantly 200 or more.

Considering the blood pressure readings shown during the period on appeal, the Board finds that the Veteran's hypertension has throughout presented a disability picture consistent with a 10 percent rating. Neither the Veteran's VA treatment records, private treatment records, or VA examination show diastolic pressures of 110 or more. All of the diastolic pressure readings were 109 or below. The record also does not show any systolic pressure readings of 200 or higher.

While the record does indicate his hypertension has worsened, as evidenced by the worse diastolic pressure readings on his October 2018 VA examination, abet not to 110 or above, and being prescribed medication to treat his blood pressure, the Board notes the criteria for rating hypertension specifically takes into account the ameliorative effects of medication. Therefore, the ameliorative effects of medications may not be discounted, but are taken into consideration. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016); see Jones v. Shinseki, 26 Vet. App. 56 (2012). 

The schedular criteria for a 20 percent rating for hypertension are not met, and such rating is not warranted. The evidence is persuasively against this claim; therefore, the appeal in this matter must be denied. 

10. 11. Entitlement to ratings in excess of 20 percent for left and right upper extremity radiculopathy is denied.

The criteria for rating upper extremity peripheral nerve disabilities distinguish between the major (dominant) and minor (non-dominant) extremities. The Veteran's right arm is his dominant, or major, extremity. 38 C.F.R. § 4.69, 4.124a.

Middle radicular nerve group impairment is rated under Codes 8511 (paralysis), 8611 (neuritis), and 8711 (neuralgia), The Veteran's left and right upper extremity radiculopathy are currently rated under Code 8711. Neuralgia is "characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis." 38 C.F.R. § 4.124. Accordingly, Code 8711 corresponds with impairment of the middle radicular group nerve with a maximum rating equal to moderate incomplete paralysis under Code 8511. See 38 C.F.R. § 4.124a.

Under Code 8511 (for paralysis of the middle radicular nerve group), a 20 percent rating is warranted for mild incomplete paralysis of the middle radicular group of either extremity. A 40 percent rating is warranted for moderate incomplete paralysis of the middle radicular group of the major extremity. A 30 percent rating is warranted for moderate incomplete paralysis of the middle radicular group of the minor extremity.

"Incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a.

The terms "mild," "moderate," "moderately severe," and "severe" as used in the various Codes are not defined in the Rating Schedule. Similarly, the term "marked" is also not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.

The Board uses plain-meaning dictionary definitions of these terms for guidance. Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018) (when a diagnostic code contains undefined subjective terms of degree, the Board must disclose the standard under which it is defining those terms). The dictionary definition for "mild" is "small in degree; inconsiderable." See MERRIAM-WEBSTER DICTIONARY. The word "moderate" is defined as "average in amount, intensity, quality, or degree," whereas the word "severe" is defined as "very great; intense." Id. The use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence is evaluated in determining an increased rating. See 38 C.F.R. §§ 4.2, 4.6.

In the December 2018 VA neck examination, the Veteran reported he experienced sharp pain on the right side of his neck that radiated down to his arm. On examination, his reflexes were normal and his sensory was intact to light touch. The examiner opined the Veteran had signs and symptoms due to radiculopathy in both upper extremities, described as mild intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness. The examiner opined the bilateral middle radicular group was involved and that there was no functional loss.

In a January 2021 VA peripheral nerve conditions examination, the Veteran reported symptoms concerning a lower extremity condition. There were no symptoms of left or right upper extremity radiculopathy reported. He denied experiencing constant pain, intermittent pain, paresthesias and/or dysesthesias, or numbness in either upper extremity. On examination, his reflexes were normal and his sensory in his upper extremities was intact to light touch. The examiner did not indicate that an upper extremity nerve was affected.

In the March 2019 NOD, the Veteran's attorney generally asserts that a higher rating is warranted as his symptoms were more severe than what is accounted for in the current ratings. 

The record does not include any further clinical evidence pertaining to the status of the Veteran's left and right upper extremity radiculopathy. He has not identified any relevant evidence pertaining to the paresthesias that is outstanding.

The Veteran's left and right upper extremity radiculopathy are rated 20 percent from October 9, 2018 (throughout). The next higher (40 percent for the right upper extremity and 30 percent for the left) ratings under Code 8711 require an equivalent of moderate incomplete paralysis of the middle radicular group. The record does not show impairments of such severity. On the December 2018 VA examination, the Veteran's symptoms are wholly sensory and there are no objective findings of loss of reflexes or sensory touch due to his upper extremity radiculopathy. The Board notes the Veteran's own reports at the October 2018 VA examination of mild intermittent pain, mild paresthesias and/or dysesthesias, and moderate left arm numbness, reflecting his upper extremity radiculopathy was small in degree. In addition, the Board notes the Veteran denied experiencing any symptoms at the January 2021 VA examination, reflecting his upper extremity radiculopathy was inconsiderable in degree. While he reported moderate numbness at the October 2018 VA examination, the holistic analysis of his complaints is consistent with the 20 percent rating assigned, and do not support that there is an equivalent of more than mild degree of severity (so as to warrant a rating in excess of 20 percent for the left and right upper extremity radiculopathy). See 38 C.F.R. § 4.124A.

The evidence is persuasively against assigning a disability rating greater than 20 percent for left and right upper extremity radiculopathy. The appeals in these matters must be denied.  

12. A compensable rating for lumbar spine scar is denied.

Scars are evaluated under 38 C.F.R. § 4.118, Codes 7800 through 7805.  Code 7800 applies to scars of the head, neck, and face, (and therefore does not apply in this case).  

Code 7801 provides ratings for scars, other than the head, face, or neck, that are associated with underlying soft tissue damage. Scars that are associated with underlying soft tissue damage in an area or areas exceeding 6 square inches (39 square centimeters) are rated as 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 square centimeters) are rated as 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 square centimeters) are rated as 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 square centimeters) are rated as 40 percent disabling.

Code 7802 provides ratings for scars, other than the head, face, or neck, that are not associated with underlying soft tissue damage. A scar that is not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 square centimeters) or greater is rated as 10 percent disabling. 

Code 7804 provides ratings for scars that are unstable or painful. One or two scars that are unstable or painful are rated as 10 percent disabling. Three or more scars that are unstable or painful are rated as 20 percent disabling. Five or more scars that are unstable or painful are rated as 30 percent disabling. Note (1) to Code 7804 provides that an unstable scar was one where, for any reason, there was frequent loss of covering of skin over the scar. 

Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Code.

When the rating schedule does not provide a 0 percent evaluation for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31.

In December 2017, the Veteran underwent a lumbar transforaminal procedure. 

In the December 2018 VA back examination, it was found the Veteran had a scar related to his back condition or treatment for his back condition. There was one scar found. It was found to be 1 centimeter by 0.1 centimeter and located in the lumbar region. The scar was not painful, or unstable, and did not result in limitation of function; the total area was less than 39 square inches.

The January 2019 rating decision, which is on appeal, awarded service connection for scar of the lumbar region, rated 0 percent effective October 9, 2018. 

In the March 2019 NOD, the Veteran's attorney generally asserts that a higher rating is warranted as his symptoms were more severe than what is accounted for in the current ratings. 

The record does not include any further clinical evidence pertaining to the status of the Veteran's lumbar scar. He has not identified any relevant evidence pertaining to the scar that remains outstanding. 

The Board has considered whether a compensable rating for the lumbar spine scar is warranted and finds it is not. 

Objective findings in the VA examination do not warrant compensable ratings under Codes 7801 or 7802, as the scar does not cover an area of at least 6 square inches (39 square centimeters), but less than 12 square inches (77 square centimeters) (Code 7801) or cover an area of at least 144 square inches (929 square centimeters) (Code 7802). In addition, the Veteran's lumbar scar has never been described as being associated with underlying soft tissue damage, so Code 7801 does not apply.

Code 7804 would apply if the scar is shown to be painful or unstable. However, the December 2018 VA examiner specifically found that the scar was not painful or unstable, and the Veteran has not alleged otherwise. Therefore, a compensable rating for the scar under Code 7804 (on the basis it is painful or unstable) is not warranted. 

As the VA examiner also found that the scar does not result in any functional impairment (and the Veteran has not alleged any impairment of function due to his scar that would be compensable), a compensable rating under Code 7805 is likewise not warranted. See 38 C.F.R. § 4.31.

The evidence is persuasively against assigning a compensable rating for the lumbar scar. The appeal in this matter must be denied.  

REASONS FOR REMAND

13. Entitlement to a rating in excess of 20 percent for right shoulder disability.

The Veteran alleges that an increased rating is warranted for his right shoulder disability.

The Board finds the October 2018 VA shoulder examination failed to adequately discuss the issues of repeated use over time and during flare ups in accordance with Sharp v. Shulkin, 29 Vet. App. 26 (2017). Specifically, the examiner opined that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over time and during flare ups. The examiner noted that "[a]t worse he cannot raise his arm he cannot raise his arm above his head due to pain, fatigue, weakness, incoordination and lack of endurance" but opined (without rationale) that they were unable to describe the functional loss in terms of range of motion. 

Based on the inconsistencies regarding any additional functional loss with repeated use over time and during flare-ups, the Board is left with an unresolved medical question regarding the nature and severity of the right shoulder disability with repeated use over time and during flare-ups. 

The Board is aware of the difficulty in providing an opinion (here, regarding severity of flare-ups and with repeated use over time) that in part requires some speculation, particularly when the Veteran is not experiencing a flare-up or being observed with repeated use over time at the time of examination. Nonetheless, to comply with governing legal guidelines a medical opinion that addresses the degree of severity of the right shoulder disability with repeated use over time and during flare-ups is necessary.

14. Entitlement to a rating in excess of 10 percent for left hip strain (limitation of flexion of the thigh).

15. Entitlement to a rating in excess of 10 percent for right hip strain (limitation of flexion of the thigh).

16. Entitlement to a rating in excess of 0 percent for left hip strain (limitation of extension of the thigh).

17. Entitlement to a rating in excess of 0 percent for right hip strain (limitation of extension of the thigh).

18. Entitlement to a rating in excess of 10 percent for right thigh impairment.

19. Entitlement to a rating in excess of 10 percent for left thigh impairment.

As the 10 percent rating for the right hip strain (limitation of flexion of the thigh) disability is restored herein, remaining for consideration in that matter is whether a rating in excess of 10 percent under Code 5252 is warranted for his right hip disability.

The Veteran alleges that increased ratings are warranted for his bilateral hip disabilities. 

The Board finds the October 2018 VA hip and thigh examination failed to adequately discuss the issues of repeated use over time and during flare ups in accordance with Sharp v. Shulkin, 29 Vet. App. 26 (2017). Specifically, the examiner opined that pain, weakness, and lack of endurance significantly limit functional ability with repeated use over time and during flare ups. The examiner noted that "[a]t worse he cannot fully flex the hips due to pain, weakness, and lack of endurance" but opined (without rationale) that they were unable to describe the functional loss in terms of range of motion. 

Based on the inconsistencies regarding any additional functional loss with repeated use over time and during flare-ups, the Board is left with an unresolved medical question regarding the nature and severity of the bilateral hip disabilities with repeated use over time and during flare-ups. 

The Board is aware of the difficulty in providing an opinion (here, regarding severity of flare-ups and with repeated use over time) that in part requires some speculation, particularly when the Veteran is not experiencing a flare-up or being observed with repeated use over time at the time of examination. Nonetheless, to comply with governing legal guidelines a medical opinion that addresses the degree of severity of the bilateral hip disabilities with repeated use over time and during flare-ups is necessary.

20. Entitlement to a rating in excess of 10 percent for a neck disability.

21. Entitlement to a rating in excess of 20 degrees for a lumbar spine disability.

The Veteran alleges that an increased rating is warranted for his cervical and lumbar spine disabilities. 

The Board finds the December 2018 VA back and neck examinations failed to adequately discuss the issues of repeated use over time and during flare ups in accordance with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran reported flare ups where he would be unable to turn his head fully and would experience stiffness in his lower back. Specifically, the examiner stated she was unable to determine functional loss or reduced range of motion with repeated use over time or with flare ups without reporting to mere speculation. She indicated there was no conceptional or empirical basis for making such a determination without directly observing function under these conditions, suggesting an estimation of impairment during flare ups or with repeated use over time is not possible and that assessment of impairment during flare ups and with repeated use over time must be made based on observation of an actual flare-up or with repeated use over time. She did not explain why that is so or address whether the Veteran's own reports of functional impairment during flare-ups or with repeated use over time can be relied on. As her explanation is inconsistent with the holding by the CAVC in Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017), the opinions are inadequate for rating purposes.

Based on the inconsistencies regarding any additional functional loss with repeated use over time and during flare-ups, the Board is left with unresolved medical questions regarding the nature and severity of the neck and back disabilities with repeated use over time and during flare-ups. 

The Board is aware of the difficulty in providing an opinion (here, regarding severity of flare-ups and with repeated use over time) that in part requires some speculation, particularly when the Veteran is not experiencing a flare-up or being observed with repeated use over time at the time of examination. Nonetheless, to comply with governing legal guidelines a medical opinion that addresses the degree of severity of the neck and back disabilities with repeated use over time and during flare-ups is necessary.

22. Entitlement to a TDIU.

In a March 2017 TDIU application, the Veteran reported he became too disabled to work in February 2017 due to his service-connected psychiatric disability. However, he also reported he worked part-time for Uber as a driver from January 2017 to March 2017. 

In an April 2017 statement, the Veteran reported he still works for Uber as a self-employed driver and was working around 20 to 25 hours per week. 

In a June 2017 NOD, the Veteran reported he recently stopped driving for Uber. However, in an October 2018 TDIU application, he reported he has worked for Uber from January 2016 to October 2018 and reported he became too disabled to work on October 10, 2018 due to his lumbar spine disability. 

On October 23, 2018, the Veteran filled out and submitted a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, explaining he was an independent contractor/self-employed. He stated he was still driving for Uber, he made $19,000 in the last 12 months, he worked 25 to 30 hours per week, and had lost 780 hours of time during the past 12 months due to his disability. 

The Veteran's employment does not necessarily foreclose the possibility of an award of a TDIU rating if the employment was marginal and/or in a protected environment. Marginal employment (for purposes of 38 C.F.R. § 4.16) generally shall be deemed to exist when a Veteran's earned annual income does not exceed the poverty threshold for one person, as established by the U.S. Department of Commerce, Bureau of the Census. 38 C.F.R. § 4.16(a). Marginal employment may also be found in some cases when earned annual income exceeds the poverty threshold, such as cases where there is employment in a protected environment, such as a family business or sheltered workshop.

The Board finds the record is unclear about the extent of his employment during the pendency of the appeal, whether he was marginally employed, and whether he was rendered unable to secure and maintain substantially gainful employment during the relevant period.

The matters are REMANDED for the following:

1. Ask the Veteran to submit an updated VA Form 21-8940, Request for Employment Information in Connection with Claim for Disability Benefits. Specifically, the Veteran must clarify his employment history from October 2018 to present and submit evidence to VA establishing his income from 2017 to present (e.g., pay stubs, W-2 Forms, 1099 Forms, tax returns, Social Security earning records, etc.) documenting his employment, hours worked, and pay from October 2018.

2. Then, make findings for the record regarding whether the Veteran's employment during the period on appeal was "marginal" or in a "protected environment," such as a family business or sheltered workshop.

3. Also, arrange for an orthopedic examination of the Veteran to assess the severity of his cervical spine, right shoulder, bilateral hips/thigh, and lumbar spine disabilities, and reconcile the conflicting examination reports regarding functional loss with repeated use over time and during flare ups. The entire record (including this Remand, the Veteran's statements regarding functional loss with repeated use over time and during flare ups, and prior VA examinations) must be reviewed by the consulting provider(s). 

All indicated tests or studies (specifically including range of motion studies of the joints in active motion, passive motion, weight-bearing, and non-weight-bearing) should be completed. [If the such testing cannot be tested on "weight-bearing" or with any range of motion, the examiner must explain why such testing cannot be done.]

The examiner is asked to furnish a retrospective opinion throughout the period on appeal regarding the functional loss from the Veteran's service-connected cervical spine, right shoulder, bilateral hips/thigh, and lumbar spine disabilities that occur during flare-ups and when used repeatedly over a period of time. The examiner must note (elicit from the Veteran a report of) the frequency and duration of flare-ups, and describe how/provide an estimate of the extent to which the cervical spine, right shoulder, bilateral hips, and lumbar spine disabilities limit the Veteran's functioning during flare-ups and with repeated use over time. The determination should be portrayed in terms of the degree of additional range of motion loss due to pain on use or during a flare-up. If such cannot feasibly be described, or if an estimate of the additional impairment during flare-ups or with repeated use over time cannot be provided based on the Veteran's reports and what is shown by clinical data in the record, there must be a full explanation why that is so. 

If an opinion cannot be provided without resort to mere speculation, indicate whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or the examiner does not have the requisite knowledge or training.

A complete rationale should be provided for any opinion expressed. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested).

 

 

S. CHARLES NEILL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Naumovich, Alexa

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.