DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

T. MAINELLI · 2025 · Case ID: 25003978

MIXED

Summary

The veteran, who served in the United States Army from May 1984 to November 1992, appeals rating decisions concerning his lumbar spine, left leg radiculopathy, pseudofolliculitis barbae (PFB), umbilical hernia, and cervical spine. The Board granted service connection for degenerative disc disease of the cervical spine, finding the evidence in equipoise and resolving doubt in the veteran's favor. The Board also granted a 30 percent rating for PFB for the period prior to March 31, 2021, based on private examination findings indicating the condition affected more than 20 percent of exposed areas. However, the Board denied increased ratings for the lumbar spine disability, finding the evidence did not support a rating higher than the current 40 percent, as the criteria for unfavorable ankylosis were not met. Similarly, the Board denied increased ratings for left leg radiculopathy, finding the evidence did not support a rating higher than 10 percent prior to March 2, 2016, and not higher than 20 percent thereafter, as the criteria for moderate incomplete paralysis were not met. The claim for a compensable rating for umbilical hernia was denied, as the evidence showed a healed repair with no indication for a supporting belt. The issue of presumptive eligibility for psychiatric treatment under 38 U.S.C. § 1702 was dismissed as moot due to a granted service connection for depressive disorder. The case was remanded for Toxic Exposure Risk Activity (TERA) examinations for Gulf War Syndrome, aches in bones, and sleep apnea, as the prior negative nexus opinions were conclusory and did not address toxic exposure.

Rationale

Evidence did not establish unfavorable ankylosis of the entire thoracolumbar spine.; Lay and medical evidence did not suggest incapacitating episodes.; Functional loss due to pain did not meet criteria for higher rating.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

11-33 365

Full Decision Text

Citation Nr: 25003978
Decision Date: 03/25/25 Archive Date: 03/25/25

DOCKET NO. 11-33 365
DATE: March 25, 2025

ORDER

Entitlement to a rating higher than 40 percent for degenerative joint and disc disease of lumbar spine is denied.

Entitlement to a rating higher than 10 percent for radiculopathy of the left sciatic nerve for the period prior to March 2, 2016, is denied.

Entitlement to a rating higher than 20 percent for radiculopathy of the left sciatic nerve for the period beginning March 2, 2016, is denied.

Entitlement to a 30 percent for pseudofolliculitis barbae (PFB) for period prior to March 31, 2021, is granted.

Entitlement to a compensable rating for umbilical hernia is denied.

Entitlement to service connection for degenerative disc disease of the cervical spine is granted.

Entitlement to service connection for a psychosis or mental illness for establishing eligibility to treatment only pursuant to the provisions of 38 U.S.C. § 1702 is dismissed.

REMANDED

Entitlement to service connection for Gulf War Syndrome is remanded.

Entitlement to service connection for aches in bones is remanded.

Entitlement to service connection for sleep apnea is remanded.

FINDINGS OF FACT

1. The Veteran's lumbar spine disability is manifested by complaints of pain on motion and limited range of motion but does not demonstrate unfavorable ankylosis of the entire thoracolumbar spine and/or does not cause incapacitating episodes as defined by the VA or the functional equivalent thereof.

2. For the period prior to March 2, 2016, the Veteran's radiculopathy of the left sciatic nerve was manifested by mild incomplete paralysis; moderate incomplete paralysis is not shown.

3. For the period beginning March 2, 2016, the Veteran's radiculopathy of the left sciatic nerve was manifested by moderate incomplete paralysis; moderately severe incomplete paralysis is not shown.

4. For the period prior to March 31, 2021, the Veteran's more nearly approximated affected more than 20 percent of exposed areas.

5. The Veteran's residuals of umbilical hernia repair was healed, static, and had no indication for a supporting belt.

6. The evidence is in equipoise as to whether the Veteran's degenerative disc disease of the cervical spine was caused or aggravated by his service-connected lumbar spine and/or left leg radiculopathy disabilities.

7. The issue of presumptive eligibility for Chapter 17 benefits for an acquired psychiatric condition under 38 U.S.C. § 1702 is rendered moot by reason of an equal or greater benefit having been established by the grant of service connection for depressive disorder.

CONCLUSIONS OF LAW

1. The criteria for the assignment of an evaluation in excess of 40 percent for degenerative joint and disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a DC 5242.

2. For the period prior to March 2, 2016, the criteria for entitlement to a rating higher than 10 percent for radiculopathy of the left sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.124a, DC 8520.

3. For the period beginning March 2, 2016, the criteria for entitlement to a rating higher than 20 percent for radiculopathy of the left sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.124a, DC 8520.

4. For the period prior to March 31, 2021, the criteria for a 30 percent rating for PFB have been met. 38 U
entitlement to a rating higher than 20 percent for radiculopathy of the left sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.124a, DC 8520.

4. For the period prior to March 31, 2021, the criteria for a 30 percent rating for PFB have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, DC 7813-7806.

5. The criteria for a compensable rating for umbilical hernia have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.114, DC 7339.

6. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for degenerative disc disease of the cervical spine have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.310.

7. The appeal of the issue of presumptive eligibility for Chapter 17 benefits for an acquired psychiatric condition under 38 U.S.C. § 1702 is dismissed as moot. 38 U.S.C. §§ 1702, 1710; 38 C.F.R. § 17.37; 17.109, 19.22, 20.104, 20.903.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the United States Army from May 1984 to September 1984 and from May 1989 to November 1992

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated August 2009, January 2011, and October 2011 issued by the Department of Veterans Affairs (VA) Regional Office (RO).

This appeal was previously before the Board in October 2022, at which time the issues were remanded for additional development.

Preliminary Contentions

Before addressing the merits of the claims on appeal, the Board will first address the requests from the Veteran's representative.

As noted in the previous remand, the Veteran's attorney requested the curriculum vitae (CV) of the VA examiners who conducted VA examinations and provided addendum opinions in April 2020, August 2020, September 2020, November 2020, and May 2021. See Correspondence dated May 25, 2022, May 31, 2022, June 24, 2022, July 28, 2022, and August 26, 2022. He also requested copies of the examiner instructions.

In August 2022, the Veteran's representative was provided a copy of the claims folder.

The Board remanded the appeal in order to provide the CVs of the requested examiners.

Upon remand, the AOJ provided the Veteran and his attorney with the CVs of the VA examiners who conducted the August 2020 and September 2020 VA examinations. See Correspondence dated October 17, 2022.

In subsequent FOIA requests, the Veteran's attorney requested the Veteran's VA medical records dated through November 2022, copies of VA examinations dated April 2020, May 2021 (an addendum opinion), and DBQs received in June 2021, along with the examiners' CVs as well as instructions to the examiners. In December 2022, the AOJ furnished the Veteran's attorney the requested medical treatment records. See Final Attempt Letter dated December 30, 2022.

After conducting searches for the remaining requested documents, the AOJ issued a formal finding of unavailability. Specifically, the AOJ found that the Veteran was not afforded a VA examination in either April 2020 or November 2020; thus, such records were not available. Review of the record confirms these findings. In September 2019, the AOJ sent examination requests to QTC for the claims on appeal. After several request modifications, the Veteran was scheduled for, and attended, VA
, along with the examiners' CVs as well as instructions to the examiners. In December 2022, the AOJ furnished the Veteran's attorney the requested medical treatment records. See Final Attempt Letter dated December 30, 2022.

After conducting searches for the remaining requested documents, the AOJ issued a formal finding of unavailability. Specifically, the AOJ found that the Veteran was not afforded a VA examination in either April 2020 or November 2020; thus, such records were not available. Review of the record confirms these findings. In September 2019, the AOJ sent examination requests to QTC for the claims on appeal. After several request modifications, the Veteran was scheduled for, and attended, VA examinations in August 2020 and September 2020. Subsequent adjudication documents, to include rating decisions and statements of the case (SOC) list the August 2020 and September 2020 examinations as evidence; there is no indication in the claims file, aside from the Veteran's statements through his attorney, that he received any VA examinations in either April 2020 or November 2020. Thus, the Board finds that these requested documents do not exist.

As it pertains to the requested May 2021 addendum, the Board further finds that this document does not exist. In April 2021, the VA examiner provided a negative nexus for the Veteran's service connection claims on appeal, along with rationale. The Veteran was also afforded examinations to assess the severity of his lumbar spine disability and left leg radiculopathy. In an exam scheduling request, uploaded on May 3, 2021, the AOJ requested additional examinations, indicating that the April 2021 examinations were insufficient. However, a week later, on May 10, 2021, the AOJ cancelled the entire exam scheduling request. See also, Exam Request received May 21, 2021. Therefore, the Board finds that as there was no addendum provided in May 2021, the requested documents do not exist.

Most recently, in June 2021, the Veteran was afforded several examinations pertaining to the claims on appeal. In a December 2022 correspondence, the Veteran's representative requested a copy of the examination reports, the examiners' CVs, and the examination scheduling requests. Closer review of the record demonstrates that the examination reports from June 2021 were private examinations submitted by the Veteran himself. The examination DBQs were submitted electronically at the same time a Form 9 formal appeal was submitted. To that end, VA has no duty to obtain the CV or credentials of a private examiner who conducted a veteran submitted examination. As for the requests for the examination reports and the scheduling requests, the Board observes that after the December 2022 request, in July 2023, the RO provided the Veteran's representative with a complete copy of the electronic claims file on a CD/DVD. The CD/DVD was mailed to the address on file and was not returned as undeliverable. As the scheduling requests and examination reports are part of the electronic claims file, the Board finds that the Veteran and his representative have been provided copies of all examinations reports and scheduling requests that are in the claims file.

Finally, the Board notes that since the inception of the appeal, there have been over 50 total FOIA and/or privacy requests from the Veteran's representative seeking copies of various documents or the entire claims file. Each request has been appropriately addressed and the requested documents that are of record have been sent to the Veteran's representative; in some cases, the requested documents have been sent multiple times. Review of the record fails to establish that there are any outstanding FOIA/privacy requests that have not been addressed. On these facts, the Board finds that adjudication of the claims on appeal may proceed without prejudice to the Veteran.

Increased Rating

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7.

Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Lumbar Spine

In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on
§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

Lumbar Spine

In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. §4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. §4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.

Under 38 C.F.R. §4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App.158, 168 (2016).

Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §4.40 and §4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by §4.40 and §4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

The Court has also addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, the Court held that a VA examiner must attempt to elicit information from the record and the veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id.

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg, 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. However, the general rating criteria for diseases and injuries of the spine and the formula for rating intervertebral disc syndrome based on incapacitating episodes remain unchanged under the new rating criteria.

The Veteran's lumbar spine disability is currently rated 40 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5237. Disabilities of the spine are evaluated under the General Formula for Diseases
38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. However, the general rating criteria for diseases and injuries of the spine and the formula for rating intervertebral disc syndrome based on incapacitating episodes remain unchanged under the new rating criteria.

The Veteran's lumbar spine disability is currently rated 40 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5237. Disabilities of the spine are evaluated under the General Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71(a), DCs 5235-5242. The General Rating Formula provides a 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.

A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine.

Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.

Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range-of-motion of the lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion.

Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted.

Note (4) instructs to round each range-of-motion measurement to the nearest five degrees.

Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Ankylosis is an objective finding or symptom and not a diagnosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Notably, multiple definitions of "ankylosis" were discussed in Chavis including general medical dictionary definitions as follows: "[i]mmobility and consolidation of a joint due to disease, injury, or surgical procedure" (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 94 (33rd ed. 2019)), "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint" (citing STEADMAN'S MEDICAL DICTIONARY 95 (28th ed. 2006)) and "[a] stiffening or immobilization of a joint as a result of injury, disease, or surgical intervention" (citing CHURCHILL'S ILLUSTRATED MEDICAL DICTIONARY 91 (1989). It noted that VA had previously defined ankylosis as "bony fixation" in older criteria and, in proposing the current regulatory terms decided to define the terms of favorable and unfavorable in Note (5) of the General Rating Formula.

Under the IVDS Rating Formula (Diagnostic Code 5243
joint as the result of a disease process, with fibrous or bony union across the joint" (citing STEADMAN'S MEDICAL DICTIONARY 95 (28th ed. 2006)) and "[a] stiffening or immobilization of a joint as a result of injury, disease, or surgical intervention" (citing CHURCHILL'S ILLUSTRATED MEDICAL DICTIONARY 91 (1989). It noted that VA had previously defined ankylosis as "bony fixation" in older criteria and, in proposing the current regulatory terms decided to define the terms of favorable and unfavorable in Note (5) of the General Rating Formula.

Under the IVDS Rating Formula (Diagnostic Code 5243), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.

The Board observes that VA recently revised Diagnostic Code 5242 to encompass "degenerative arthritis, degenerative disc disease other than IVDS" while revising Diagnostic Code 5243 as IVDS only when there is disc herniation with compression and/or irritation of the adjacent nerve root. 85 Fed. Reg. 76453 (Nov. 30, 2020). VA considers these non-substantive changes which clarify the meaning of IVDS. See 82 Fed. Reg. 35719, 35720 (Aug. 1, 2017). Notably, upon remand, the RO readjudicated the Veteran's increased rating claim pursuant to the updated rating criteria. See Supplemental Statement of the Case dated February 2023.

Turning to the facts of the case, the Veteran filed an increased rating claim for his lumbar spine in February 2009. At the March 2009 VA examination, the Veteran reported experiencing daily constant severe throbbing pain in the low back. Because of his back pain, his ability to stand was limited to 30 to 45 minutes and his ability to walk was limited to one block. He used prescription medication, physical therapy, and a back brace to alleviate his pain. In addition to pain, his symptoms included fatigue, decreased motion, stiffness, weakness, and spasms. He denied experiencing flare ups but walked with a slow antalgic gait. Range of motion testing revealed flexion to 40 degrees. The Veteran was able to perform range of motion with three repetitions with no additional limitation in motion.

In subsequent treatment records, the Veteran reported continued low back pain, which impaired his ability to stand, walk, and ambulate. See CAPRI Records received January 8, 2010. Physical therapy records indicate flexion of the lumbar spine remained at 40 degrees. See Private Medical Treatment Records received May 7, 2009.

At the January 2010 VA examination, the Veteran continued to experience severe pain with weakness, stiffness, and spasms. He was able to stand for a few minutes and walk up to 400 feet. There was no evidence of localized tenderness or guarding of the spine. Range of motion testing revealed flexion to 35 degrees.

At the May 2010 VA examination, the Veteran continued to experience decreased motion, stiffness, weakness, spasms, and pain of the lumbar spine. Range of motion testing revealed flexion to 70 degrees; the Veteran was able to perform repetitive use testing; however, he endorsed an additional 10 degrees in limitation of flexion and attention along with an additional 5 degrees in limitation of lateral flexion and rotation in each direction.

In a June 2011 private treatment note, the Veteran described low back pain, which prevented him from standing, sitting, and walking for prolonged periods. Bending and lifting also caused problems. At that time, he endorsed flexion to 20 degrees.

revealed flexion to 35 degrees.

At the March 2016 VA examination, the Veteran continued to experience constant low back pain, which he rated as 8/10 in severity. When is pain flared up, he had to rest for a few minutes. Functionally, he was not able to walk far, was unable to lift more than five pounds. Range of motion testing revealed flexion of the spine to 40 degrees. There was evidence of pain with weight bearing along with tenderness along the spine. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner found that during flare ups, symptoms of pain and lack of endurance would significantly limit the Veteran's functional ability; however, the examiner was not able to describe in terms of range of motion. There was also evidence of guarding of the spine which resulted in abnormal spinal contour. He used a brace and cane to assist in ambulation.

At the August 2020 VA examination, the Veteran continued to endorse pain of the lumbar spine, which he treated with prescription medication. Flare ups of pain occurred daily and lasted at least several hours. Range of motion testing revealed flexion of the spine to 30 degrees. While the Veteran endorsed pain in all planes of motion along with pain with weight bearing and non-weight bearing, there was no evidence of localized tenderness or pain on palpation. While the Veteran was able to perform repetitive use testing with at least three repetitions, there was additional loss of motion (5 degrees) in all directions. The examiner found that with repetitive use, the Veteran's symptoms of pain and lack of endurance would significantly limit functional ability equivalent to 10 degrees in all planes of motion. During flare ups, the Veteran's symptoms of pain and lack of endurance would significantly limit functional ability equivalent by 15 degrees in all planes of motion. There was no evidence of guard or muscle spasms. He continued to use a back brace and cane for ambulation.

In a June 2021 DBQ submitted by the Veteran, he continued to endorse pain, stiffness, and significant limitation of motion of the lumbar spine. He was unable to stand, sit, or walk for extended periods and had difficulty bending over. Flexion of the spine was measured at 55 degrees. The Veteran was able to perform repetitive use testing with no additional loss of motion with at least three repetitions. However, there was moderate central posterior tenderness throughout the central lower lumbar region. There was pain with both weight bearing and non-weight bearing along with muscles spasms and guarding, which caused abnormal gait. The examiner found that with repeated use over time, the Veteran's symptoms should significantly limit functional ability equivalent to 30 degrees flexion. He continued to use a back brace and cane for ambulation.

With respect to the claim for an increased rating for the lumbar spine disability, the Board finds that a rating in excess of 40 percent is not warranted. In order to warrant a higher rating, there must be unfavorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis is defined as a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Here, the lay and medical evidence does not establish fixation in flexion or extension of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). At no point during the appeals period, to include the most recent examination in June 2021, does the evidence of record indicate the Veteran suffers from ankylosis. To the extent the Veteran argues otherwise, the Board places greater probative weight to the findings of
the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Here, the lay and medical evidence does not establish fixation in flexion or extension of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). At no point during the appeals period, to include the most recent examination in June 2021, does the evidence of record indicate the Veteran suffers from ankylosis. To the extent the Veteran argues otherwise, the Board places greater probative weight to the findings of the VA and private clinicians who have greater expertise and training than the Veteran in evaluating the manifestations of a thoracolumbar spine disorder.

The Board also finds that a higher rating is not warranted based on incapacitating episodes as neither the lay nor medical evidence suggest that the Veteran manifested incapacitating episodes as defined by VA regulation due to his lumbar spine disability. 38 C.F.R. § 4.71(a), DC 5243.

Moreover, even considering any possible additional functional impact as a result of pain, fatigue, weakness, lack of endurance, or incoordination, the fact remains the Veteran has active motion in his lumbar spine which does not more nearly approximate functional unfavorable ankylosis of the entire thoracolumbar spine. Therefore, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45 4.59 as well as the criteria in DeLuca and Mitchell, the Veteran's functional loss did not equate to the criteria required for a 50 percent rating.

Further, to the extent VA examinations failed to comply with the holdings in Correia or Sharp, either individually or collectively, such non-compliance is harmless error. In this respect, the Court in Johnston, supra, indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. Johnston, 10 Vet. App. at 84-85 (although the Secretary suggested remand because of the Board's failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). Thus, as the Veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires ankylosis of other symptoms unrelated to limitation of motion, 38 C.F.R. § 4.40 and 4.45 are not for application.

The Board has also considered the lay statements of record regarding the severity of the Veteran's symptoms. Lay witnesses are certainly competent to attest to physical symptoms one experiences or witnesses, such as pain and limited movement. See Layno v. Brown, 6 Vet. App. 456 (1994); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Generally, the lay witness in this case, namely the Veteran, has been credible; however, neither the medical evidence, to include multiple VA examinations, nor the lay evidence of record suggests that an evaluation in excess of 40 percent is warranted. The Board finds the medical evidence to be far more probative to the degree of impairment than the lay evidence of record. Further, the lay evidence does not suggest the presence of unfavorable ankylosis of the lumbar spine.

For the forgoing reasons, the Board finds that there is no basis for a rating in excess of 40 percent for the Veteran's degenerative disc disease of the lumbar spine, as his symptoms during the appeal period more nearly approximate that which is contemplated by the 40 percent criteria, and no higher, under 38 C.F.R. § 4.71a, DC 5243. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

Left Lower Extremity Radiculopathy

The Veteran seeks increased staged ratings for his service-connected left lower extremity radiculopathy. His claim encompasses the issue of entitlement to an effective date earlier than March 2, 2016, for the grant of a 20 percent rating for left lower extremity radiculopathy. Accordingly, since the law and regulations pertaining to both increased ratings and an earlier effective date are relevant to the claim on appeal, the Board will analyze both aspects of the Veteran's claim.

In regard to effective dates,
.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

Left Lower Extremity Radiculopathy

In regard to effective dates, the law regarding effective dates provides that, unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a).

This statutory provision is implemented by a VA regulation, which provides that except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. When evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred if the application is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997).

In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, a disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a.

Descriptive words such as "slight," "moderate" and "severe" are 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 use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6.

However, VA's Adjudication Manual does provide guidance in evaluating the severity of nerve paralysis. According to the Manual, "mild" incomplete paralysis is demonstrated by disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. Additionally, a very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis.

"Moderate" is the maximum evaluation reserved for the most significant cases of sensory-only impairment. Symptoms will likely be described by the claimants and medically graded as significantly disabling. In such cases a larger area in the nerve distribution may be affected by sensory symptoms. Other sign/symptom combinations may include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate.

For "severe" incomplete paralysis, there is generally expected to be motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases.

When the involvement is wholly sensory, the rating should be for the mild, or
significantly disabling. In such cases a larger area in the nerve distribution may be affected by sensory symptoms. Other sign/symptom combinations may include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate.

When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.124a.

Neuralgia, cranial or peripheral, 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. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.124.

The Veteran is in receipt of staged ratings for his service-connected radiculopathy of the left sciatic nerve pursuant to 38 C.F.R. § 4.124a, DC 8520. DC 8520 provides that mild incomplete paralysis is rated 10 percent disabling. Moderate incomplete paralysis is rated 20 percent disabling. Moderately severe incomplete paralysis is rated 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. DC 8620 refers to neuritis of the sciatic nerve while DC 8720 refers to neuralgia of the sciatic nerve.

Turning to the facts of the case, at the March 2009 VA examination, the Veteran described experiencing intermittent left leg numbness and pain. While the Veteran maintained normal muscle strength (5/5) in left hip flexion, hip extension, knee extension, and ankle plantar flexion, muscle strength was slightly diminished (4/5) among left ankle dorsiflexion and great toe extension. There was no evidence of muscle atrophy. However, sensation to vibration, pain, and light touch was slightly diminished (1/2). The Veteran maintained normal reflexes (2+) in the left lower extremity.

Private physical therapy notes received May 7, 2009, document the Veteran's continued pain in the left leg along with numbness and tingling.

Subsequent CAPRI records document the Veteran's continued low back pain which radiated down his left leg along with symptoms of numbness, tingling, and weakness. His symptoms caused difficulty with ambulation, prolonged sitting, and prolonged standing. See CAPRI Records received January 8, 2010.

At the January 2010 VA examination, the Veteran reported using a cane to ambulate; he stated that he stumbled a lot and often felt off balance. He denied any falls since before September 2009. The Veteran's symptoms caused him to walk with an antalgic gait. He maintained normal muscle strength (5/5) throughout movement of the left leg and there was no evidence of muscle atrophy. He also maintained normal sensation (2/2) to pain and position sense; however, sensation to vibration and light touch was diminished (1/2). Reflexes were normal (2+) throughout the left leg.

At the May 2010 VA examination, the Veteran continued to describe symptoms of pain, numbness, and tingling in the left leg. He maintained normal muscle strength (5/5) throughout the left lower extremity and there was no evidence of muscle atrophy. Sensation to vibration, pain, light touch, and position were all normal (2/2). He also maintained normal reflexes (2+).

In private treatment notes from 2014, the Veteran continued to report numbness and tingling in the left leg. See Private Treatment Records received February 5, 2016.

At the March 2016 VA examination, the Veteran endorsed severe pain with moderate numbness and tingling in the left leg. Muscle strength was slightly diminished (4/5) throughout
the Veteran continued to describe symptoms of pain, numbness, and tingling in the left leg. He maintained normal muscle strength (5/5) throughout the left lower extremity and there was no evidence of muscle atrophy. Sensation to vibration, pain, light touch, and position were all normal (2/2). He also maintained normal reflexes (2+).

In private treatment notes from 2014, the Veteran continued to report numbness and tingling in the left leg. See Private Treatment Records received February 5, 2016.

At the March 2016 VA examination, the Veteran endorsed severe pain with moderate numbness and tingling in the left leg. Muscle strength was slightly diminished (4/5) throughout the leg; there was no evidence of muscle atrophy. Reflexes in the left knee were hyperactive (3+) while reflexes in the left ankle were hypoactive (1+). He maintained sensation throughout the left leg, albeit decreased. There was no evidence of trophic changes. The Veteran's gait was antalgic and slow due to his radiculopathy. The examiner diagnosed mild incomplete paralysis of the left sciatic nerve, external popliteal nerve, musculocutaneous nerve, anterior tibial nerve, and internal popliteal nerve, along with mild incomplete paralysis of the femoral nerve. He continued to use a cane to ambulate due to his left leg weakness.

In a private evaluation report, received November 2018, the Veteran continued to report pain, numbness, and tingling in the left lower extremity, which impaired his functional ability. Upon examination, the Veteran demonstrated diminished muscle strength (4/5) in the left hip, knee, and ankle. Reflexes were hypoactive (1+) in the left leg and sensation was diminished throughout the leg. His gait remained slow, and he ambulated with a cane.

At the August 2020 VA examination, the Veteran's symptoms remained consistent with previous evaluations: shooting pain in his left lower extremity along with numbness and tingling. The examiner evaluated the Veteran's symptoms as moderate in severity. He maintained normal muscle strength (5/5) throughout the left leg and there was no evidence of muscle atrophy. Sensation throughout the left leg was decreased; however, there were no trophic changes. The Veteran ambulated with a normal gait. The examiner diagnosed moderately incomplete paralysis of the left sciatic nerve. He continued to use a brace and cane for ambulation.

In a June 2021 private DBQ, the Veteran endorsed slightly diminished muscle strength (4/5) in the left ankle, foot, and toe; muscle strength was normal (5/5) in the knee and hip. There was no evidence of atrophy or trophic changes. However, the left ankle reflexes were hypoactive (1+). Sensation in the lower leg, ankle, foot, and toes was decreased and sensation to position and vibration was decreased. The examiner diagnosed incomplete paralysis of the sciatic nerve.

Upon consideration of the evidence, the Board finds that a rating higher than 10 percent is not warranted for the period prior to March 2, 2016, for the Veteran's left leg radiculopathy. During this time, the Veteran's disability was manifested by pain, numbness, and tingling in his left lower extremity. The VA examinations and treatment records during this time did not show any probative manifestations of at least moderate incomplete paralysis of the left sciatic nerve. The Veteran's symptoms remained consistently indicative of no more than mild incomplete paralysis of the sciatic nerve. Although the Veteran did manifest some subjective symptoms, his muscle strength remained normal as did his deep tendon reflexes. While there was some slightly diminished sensation, there was no evidence of trophic changes or muscle atrophy. When relative impairment considering the subjective complaints in light of the normal reflexes and motor strength with absence of atrophy or trophic changes, the Veteran's left leg radiculopathy was no worse in severity than that which is contemplated by the currently assigned 10 percent rating for the period prior to March 2, 2016.

The Board further finds that as of March 2, 2016, a rating higher than 20 percent is not warranted for radiculopathy of the left sciatic nerve. During this time, the Veteran has continued to endorse severe pain, numbness, and tingling of the left leg. In addition to the subjective symptoms, the Veteran objectively demonstrated abnormal reflexes and slightly diminished muscle strength. He also indicated that at times, his symptoms were so severe, he stumbled and fell. However, at no time during this period did the Veteran meet, or more closely approximate the criteria for moderately severe incomplete paralysis. There is no evidence of muscular atrophy and certainly no evidence of a high level of limitation caused
2, 2016.

Additionally, the Board cannot factually ascertain that the findings at the March 2016 VA examination were present in any specific month and year prior to that examination report. The Veteran did not describe any specific time period of a worsening, and his clinical findings reported above prior to March 1, 2016, did not support a higher rating. See generally 38 C.F.R. § 3.31 (payment of compensation occurs first day of the calendar month in which the award became effective). To the extent the Veteran recalls his current left lower extremity symptoms being present for the entire appeal period, the Board finds that this recollection is faulty and the Board places greater probative weight on the contemporaneous lay and medical descriptions in the record prior to March 1, 2016.

The Board also finds that a separate compensable rating is not warranted for any of the other nerves in the left lower extremity. In so finding, the Board recognizes the March 2016 VA examiner's finding that all the nerves in the Veteran's left lower extremity were mildly impaired. However, the Board finds that this notation, in light of the remaining evidence of record, fails to adequately establish that separate compensable ratings are warranted. To that end, the Board notes that the Veteran was evaluated several times after the March 2016 VA examination; the examiners did not find impairment to any nerves other than the sciatic nerve. Moreover, objective testing fails to establish that the Veteran's radiculopathy was manifested to a compensable degree in any nerve other than the left sciatic nerve. The evaluations fail to establish that the Veteran's disability manifested in impairment to the movement and muscles of the left foot, as contemplated by DC 8521 (external popliteal nerve), DC 8522 (musculocutaneous nerve), DC 8523 (anterior tibial nerve) and DC 8624 (internal popliteal nerve); nor is there evidence of impairment to the quadriceps muscles as contemplated by DC 8526 (femoral nerve) as the Veteran's impairment was limited to the back of the leg and below the knee.

In so finding the above, the Board has considered the lay evidence of record, which attests to the severity of the Veteran's symptoms. While the lay statements of record are both competent and credible, the Board finds that the symptomatology described in the statements is adequately contemplated by the assigned staged ratings. The statements do not present evidence indicative of moderate incomplete paralysis of the sciatic nerve prior to March 2, 2016, or moderately severe incomplete paralysis of the sciatic nerve thereafter. That said, increased ratings are not warranted. The claim is denied.

Pseudofolliculitis Barbae (PFB)

The Veteran seeks increased staged ratings for his pseudofolliculitis barbae (PFB) currently rated 10 percent disabling prior to March 31, 2021. The Veteran has withdrawn the issue of entitlement to a rating in excess of 30 percent. See Written Brief received February 28, 2024. He is currently assigned a 10 percent rating for his PFB, pursuant to 38 C.F.R. § 4.118, DC 7813 for dermatitis or eczema and DC 7821 for LIST. In evaluating skin and scar residuals, the Board notes that during the appeal period, changes were made to certain Diagnostic Codes under 38 C.F.R. § 4.118. Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA's intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (
to 38 C.F.R. § 4.118, DC 7813 for dermatitis or eczema and DC 7821 for LIST. In evaluating skin and scar residuals, the Board notes that during the appeal period, changes were made to certain Diagnostic Codes under 38 C.F.R. § 4.118. Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA's intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the Veteran filed his claim before the August 13, 2018, effective date, the Board will consider whether either the old or new rating criteria are more favorable to the Veteran.

Prior to August 13, 2018, under DCs 7813 and 7821, a 10 percent rating is assigned for at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. A 60 percent rating is assigned for more than 40 percent of the entire body, or more than 40 percent of exposed areas affected, or constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, DC 7806.

For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a Veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug." Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id.

Effective August 31, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a).

Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to DCs 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: (1) characteristic lesions involving less than 5 percent of the entire body affected; or (2) characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period.

A 30 percent rating is assigned at least one of the following: (1) characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected
involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period.

A 30 percent rating is assigned at least one of the following: (1) characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for at least one of the following: (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824.

In this case, the relevant clinical evidence primarily consists of VA examinations. While the Veteran's treatment medical records document his PFB, he did not receive regular treatment related to his PFB.

Turning to the facts of the case, this appeal stems from a September 2011 increased rating claim. At the February 2012 VA examination, the Veteran reported experiencing itching and rashes around his beard line. He used a cream as needed to alleviate his symptoms. He did not have scarring or disfigurement nor were there any neoplasms or systemic manifestations attributed to his PFB. The examiner indicated that the Veteran's treatment included topical corticosteroids for six weeks or more, but not constant. The examiner found that the Veteran's condition affected less than five percent of his total body area.

At the August 2020 VA examination, the Veteran continued to use topical creams to treat his PFB. He did not use any corticosteroids or immunosuppressive medications for his condition. Upon evaluation, the examiner found that the Veteran's PFB affected three percent of his total body area and five percent of his exposed body area. There was no residual scarring or complications attributed to the Veteran's PFB.

Based on this evidence, the RO granted a 10 percent rating for PFB, effective September 19, 2011, the date the Veteran's increased rating claim was received. See May 2021 Rating Decision.

In June 2021, the Veteran underwent a private skin examination, the results of which are documented in a veteran-submitted Disabilities Benefits Questionnaire. At that time, the Veteran's condition resulted in inflammation, bumps, and ingrown hairs, affecting his cheeks, chin, and upper neck. He did not use any oral or topical medications to treat his condition, nor did he undergo or receive any treatments or procedures, systemic or topical, in the past 12 months to treat his condition. The examiner found that the Veteran's condition affected at least five percent but less than 20 percent of his total body area and more than 20 percent of his exposed body area.

Based on this examination, the RO granted a 30 percent rating for PFB, effective March 31, 2021, the date the Veteran's Intent to File was received. See February 2022 Rating Decision.

Based on the above, the Board finds that a 30 percent for the Veteran's PFB is warranted for the period prior to March 31, 2021. In this respect, the Veteran's PFB appears to be a condition which waxes and wanes particularly depending on whether the Veteran shaves. See generally Ardison v. Brown, 6 Vet. App. 405 (1994). The findings from the June 2021 private DBQ are not dissimilar to findings from a November 2010 VA examination which found that PFB affected approximately 20.7 percent of exposed skin. The Board resolves reasonable doubt and finds that, when considering exacerbations and flares, the Veteran's PFB more nearly resulted in affecting more than 20 percent of exposed areas. As noted above, the Veteran's attorney has limited the appeal to a uniform 30 percent rating for the entire appeal period.

Umbilical Hernia

The Veteran seeks a compensable rating for his service-connected umbilical hernia, pursuant to 38 C.F.R. § 4.114, DC 7339. Under DC 7339, a 0 percent rating is assigned for healed postoperative wounds, with no disability and a belt not indicated. 38 C.F.R. § 4.114.

A 20 percent rating is assigned for a small postoperative ventral hernia that is not well supported by a belt under ordinary conditions, or a healed ventral hernia or postoperative wounds with weakening of abdominal wall and indication for a supporting belt. Id.

A 40 percent rating is assigned for a large postoperative ventral hernia that is not well supported by a belt under ordinary conditions. Id.

A 100 percent rating is assigned for massive, persistent and severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of abdominal wall so as to be inoperable. Id.

In this case, the relevant clinical evidence primarily consists of VA examinations. While the Veteran's treatment medical records document his hernia, he did not receive regular treatment related to his service-connected hernia.

Turning to the facts of the case, the Veteran filed the current increased rating claim for his umbilical hernia in September 2011. Contemporaneous treatment records document the 1990 hernia repair procedure. However, there was no evidence of any current symptoms or treatment related to the umbilical hernia. See CAPRI Records January 17, 2012.

At the January 2012 VA examination, the Veteran described experiencing intermittent pain around his abdominal surgical sight. He stated the pain occurred every two to three months and lasted for two to three minutes. He stated that during these episodes, the area around the incision site would harden and then soften again. He denied experiencing nausea or vomiting at any point. Upon physical examination, the examiner noted the presence of healed postoperative ventral hernia repair with no indication for a supporting belt.

Based on this examination, the RO continued the noncompensable rating for the service-connected hernia. See February 2012 Rating Decision.

At the August 2020 VA examination, the Veteran described experiencing tenderness around the umbilicus. Upon examination, there was no hernia detected nor was there any indication for a supporting belt.

Based on the above, the Board finds that a compensable rating is not warranted for the Veteran's service-connected umbilical hernia. In so finding, the Board finds that the best pieces of evidence of record regarding the severity of the Veteran's service-connected residuals consists of the January 2012 and August 2020 VA examinations. Both examiners determined that the Veteran manifested a healed, postoperative hernia repair with no evidence of a recurrent hernia. During both examinations, the Veteran denied any current symptoms other than occasional pain and tenderness. There was no indication for a supporting belt. In the absence of evidence of evidence of a postoperative hernia that is small, not well supported by belt under ordinary conditions, or healed hernia or postoperative wounds with weakening of abdominal wall and indication for a supporting belt, a compensable rating is not warranted. The claim is denied.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and
In the absence of evidence of evidence of a postoperative hernia that is small, not well supported by belt under ordinary conditions, or healed hernia or postoperative wounds with weakening of abdominal wall and indication for a supporting belt, a compensable rating is not warranted. The claim is denied.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, may be service connected on an aggravation basis. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995).

Lay persons are competent to provide opinions on some medical issues falling within the realm of common knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Cervical Spine

The Veteran contends that he manifests a cervical spine disability secondary to his service-connected lumbar spine disability. For the following reasons, the Board finds that service connection is not warranted.

As a preliminary matter, the Board finds that service connection for a cervical spine disability is not warranted on a direct basis as the evidence does not suggest, and the Veteran does not contend that his disability is directly related to service. To that end, the Veteran's service treatment records are silent for any complaints, treatments, or manifestations of a cervical spine disability. Upon discharge, his relevant systems were clinically normal, and the Veteran denied experiencing any symptoms. See Report of Medical Examination and Report of Medical History dated August 11, 1992. The Veteran's post-service treatment records and lay statements do not suggest a link between the Veteran's current disability and his period of service. As the evidence does not establish, and the Veteran does not contend, that the cervical spine condition began during service or is otherwise related to service, the ensuing analysis will focus on service connection for a cervical spine disability on a secondary basis.

The Veteran filed the current claim in October 2009. At the January 2010 VA examination, the Veteran reported that his symptoms of neck pain and stiffness started in 2009; there was no precipitating injury. The examiner diagnosed degenerative changes of the cervical spine and provided a negative nexus between the lumbar spine disability and cervical spine disability, reasoning that the arthritis of the cervical spine developed independently of the lumbar spine.

In an October 2018 private evaluation, Dr. R.R.H. opined that the Veteran's cervical spine disabilities are "probably related" to his multiple falls attributed to his unstable gait resulting from his lumbar spine and left leg radiculopathy.

At the August 2020 VA examination, the Veteran indicated that his cervical spine symptoms began in 2008 as a result of physical training. Upon review of the record and examination of the Veteran, the examiner provided a negative nexus opinion, reasoning that there is not pathophysiologic relationship between
enerative changes of the cervical spine and provided a negative nexus between the lumbar spine disability and cervical spine disability, reasoning that the arthritis of the cervical spine developed independently of the lumbar spine.

At the August 2020 VA examination, the Veteran indicated that his cervical spine symptoms began in 2008 as a result of physical training. Upon review of the record and examination of the Veteran, the examiner provided a negative nexus opinion, reasoning that there is not pathophysiologic relationship between the neck condition and the back condition. Notably, the examiner did not discuss the Veteran's contentions pertaining to his falls stemming from his left leg radiculopathy.

In light of the above, the Board finds that the evidence for and against the claim is at least in equipoise as to whether service connection is warranted for the Veteran's cervical spine disability. To that end, the Board finds that the two opinions of record, while opposing in their conclusion, are equally probative in addressing the issue on appeal. Both opinions were rendered upon examination of the Veteran and review of the record. Although they arrive at different conclusions, the opinions do not directly contradict each other, as the positive nexus focused more on falls related to the Veteran's lumbar spine disability, while the negative nexus focused more on the lumbar spine disability itself. As each opinion is adequately based on facts in the record, the Board cannot find that either opinion is more probative than the other. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008).

In sum, resolving all reasonable doubt in favor of the Veteran, the Board is satisfied that the criteria for entitlement to service connection for cervical spine degenerative disc disease have been met. The evidence, at a minimum, is in relative equipoise. 38 U.S.C. 5107(b); 38 C.F.R. § 3.102.

Service Connection for Mental Illness for Establishing Eligibility for Medical Treatment Only under 38 U.S.C. §1702

The record reflects that entitlement to service connection for an acquired psychiatric disorder has been established by way of a December 2020 rating decision. As the Veteran has now been awarded service connection for a psychiatric disorder, the issue of his entitlement to service connection for a mental illness for purposes of establishing eligibility for VA treatment under 38 U.S.C. § 1702 is moot. See 38 C.F.R. § 17.37(b). As such, the appeal as to this specific issue will be dismissed. See Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot).

REASONS FOR REMAND

Gulf War Syndrome, Aches in Bones, and Sleep Apnea

On August 10, 2022, the President of the United States signed into law the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act). 38 U.S.C. § 1168 requires a medical nexus opinion and examination for claimed disabilities with a possible nexus to toxic exposure risk activities (TERA). Here, the Veteran has submitted a claim for compensation, demonstrated a current disability, and has military service that presumptively qualifies as participation in a TERA, while there is insufficient evidence to grant the claim.

The sub-regulatory guidance defines four exceptions to the requirement to obtain a TERA examination and medical opinion: physical trauma, mental disorders, disabilities that have not been shown to have any positive association with herbicide agents exposure, and disabilities that manifested during service or with a clear etiology that is not associated with toxic exposure (to include due to post-service events). VBA Letter 20-22-10, 10-13, Processing Claims Involving the PACT Act, 87 Fed. Reg. 78,543 (Dec. 22, 2022). These exceptions do not apply in this case.

The record raises the issue of whether the Veteran's sleep apnea, claimed aches in bones, and claimed Gulf War syndrome are related to chemical exposures. In August 2020, the Veteran was afforded VA examinations addressing these issues. However, the negative nexus opinions provided were conclusory in nature and did not address the Veteran's in-service toxic exposure. Therefore, upon remand, the Veteran should be provided with TERA examinations for his sleep apnea, claimed aches in bones, and claimed Gulf War syndrome.

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The matters are REMANDED for
Act, 87 Fed. Reg. 78,543 (Dec. 22, 2022). These exceptions do not apply in this case.

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The matters are REMANDED for the following action:

Provide the Veteran a TERA examination for his sleep apnea, claimed aches in bones, and claimed Gulf War syndrome. The claims file must be made available to and be reviewed by the examiner. The examiner must specifically interview the Veteran to obtain any information necessary in determining the extent of any TERA exposures.

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. Orie, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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