Case A26039278

AMANDA G. ALDERMAN · 2026 · Case ID: A26039278

MIXED

Summary

The Veteran, a Marine Corps veteran who served multiple tours between December 1980 and February 2006, appeals several decisions regarding his claims for increased ratings and benefits. The Board granted an effective date of July 23, 2018, for service connection of right lower extremity (RLE) radiculopathy, finding that the claim for this condition was properly raised in a July 2018 claim for lumbar spine disability. The Board denied a compensable rating for hypertension, finding the Veteran's blood pressure readings and medication use did not meet the criteria for a higher rating. The claim for an increased rating for a painful left knee scar was also denied, as the evidence did not support a rating in excess of 10 percent for a single painful scar, and other applicable diagnostic codes were not met. The Board remanded claims for increased ratings for degenerative disease of the right and left great toes, and RLE radiculopathy, due to duty to assist errors in the prior examinations, which failed to discount the ameliorative effects of medication as required by case law. Claims for an earlier effective date for TDIU and Dependents' Educational Assistance (DEA) were also remanded, as they are intertwined with the remanded increased rating claims.

Rationale

Claim for RLE radiculopathy raised in July 2018 lumbar spine claim; Entitlement arose July 23, 2018, based on private DBQ diagnosis; No earlier entitlement date found

Service Branch

MARINE CORPS

Special Benefit

TDIU

Docket No.

210422-154727

Full Decision Text

Citation Nr: A26039278
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 210422-154727
DATE: April 28, 2026

ORDER

An effective date of July 23, 2018, but no earlier, for the grant of service connection for right lower extremity (RLE) radiculopathy is granted.

A compensable rating for hypertension is denied.

A rating in excess of 10 percent for left knee scar (painful scar left knee, left knee surgical scars) is denied.

REMANDED

Entitlement to a rating in excess of 10 percent for degenerative disease left great toe is remanded.

Entitlement to a rating in excess of 10 percent for degenerative disease right great toe is remanded.

Entitlement to an initial rating in excess of 10 percent for RLE radiculopathy is remanded.

Entitlement to total disability based on individual unemployability (TDIU) prior to December 16, 2018, is remanded.

Entitlement to basic eligibility to Dependents' Educational Assistance (DEA) prior to December 16, 2018, is remanded.

FINDINGS OF FACT

1. VA received a formal claim for service connection for increased rating for lumbar spine disability "to include pinched nerve" on July 20, 2018; the evidence supports a finding that manifestations of the Veteran's RLE radiculopathy were ascertainable on July 23, 2018, but not earlier.

2. The Veteran's hypertension did not manifest in diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more; and the Veteran does not have a history of diastolic pressure predominantly 100 or more that required continuous medication for control.

3. The Veteran has no more than one painful scar.

4. The Veteran's left knee scar is not manifested by an area or areas of 144 square inches (929 sq. cm.) or greater.

CONCLUSIONS OF LAW

1. The criteria for an effective date of July 23, 2018, but no earlier, for the award of service connection for RLE radiculopathy, as secondary to service-connected lumbar spine disability, are met. 38 U.S.C. §§ 1155, 5110, 5107; 38 C.F.R. §§ 3.155(a), 3.400.

2. The criteria for a compensable rating for service-connected hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.104, Diagnostic Code (DC) 7101.

3. The criteria for a rating in excess of 10 percent for painful left knee scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7802, 7804.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from December 30, 1980, to December 28, 1988, from February 28, 1989, to March 11, 1996, from January 16, 2003, to September 15, 2003, and from April 2, 2004, to February 8, 2006.

The rating decision on appeal on the issues of increased ratings for degenerative disease of the right great toe, degenerative disease of the left great toe, hypertension and scars was issued in April 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In September 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the issues of increased ratings for degenerative disease of the right great toe, degenerative disease of the left great toe, hypertension and scars most recently addressed in an April 2019 rating decision. In December 2019, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which denied the claims based on the evidence of record at the time of that decision, granted entitlement to left knee scar at a 10 percent evaluation, effective October 28, 2019, and deferred entitlement to a TDIU. A January 2020 rating decision denied entitlement to a TDIU. In December 2020, the Veteran submitted a VA Form 20-
Claim, and requested readjudication of the issues of increased ratings for degenerative disease of the right great toe, degenerative disease of the left great toe, hypertension and scars most recently addressed in an April 2019 rating decision. In December 2019, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which denied the claims based on the evidence of record at the time of that decision, granted entitlement to left knee scar at a 10 percent evaluation, effective October 28, 2019, and deferred entitlement to a TDIU. A January 2020 rating decision denied entitlement to a TDIU. In December 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a December 2019 decision. In March 2021, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior December 2019 decision.

An April 2020 rating decision granted entitlement to DEA, effective October 25, 2019, and service connection for RLE radiculopathy at a 10 percent evaluation, effective October 25, 2019. In May 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: HLR, and requested review of an April 2020 decision. An October 2020 HLR duty to assist determination identified missing private treatment records as a duty to assist error. See Rating Decision (October 2020); see also VA Form 20-0999 HLR Return (October 2020). As a result, the case was returned to the AOJ and assigned to the supplemental review lane for additional development. Following completion of the development, the AOJ issued a January 2021supplemental claim decision on appeal, which continued and confirmed the denial of the claims.

In the April 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On June 6, 2022, the Veteran withdrew the hearing request. Therefore, the Board may only consider the evidence of record at the time of the December 2019 AOJ decision as to degenerative disease of the right great toe, degenerative disease of the left great toe, hypertension and scars, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran, or his representative, within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801.

As to the issues of entitlement to earlier effective dates for TDIU, DEA and RLE radiculopathy (as well as increased rating for RLE radiculopathy), the Board may only consider the evidence of record at the time of the January 2021 AOJ decision, as well as any evidence submitted by the Veteran, or his representative, within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801.

However, because the Board is remanding the claims for increased rating for degenerative disease of right great toe and left great toe, and RLE radiculopathy, and earlier effective dates for TDIU and DEA, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

During the pendency of the Veteran's claims, an April 2025 rating decision granted an effective date of entitlement to a TDIU and to DEA of December 16, 2018. However, as the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim remains in appeal status. AB v. Brown, 6 Vet. App. 35 (1993). The Board's identification of the issues on appeal above reflects the
and earlier effective dates for TDIU and DEA, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

During the pendency of the Veteran's claims, an April 2025 rating decision granted an effective date of entitlement to a TDIU and to DEA of December 16, 2018. However, as the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim remains in appeal status. AB v. Brown, 6 Vet. App. 35 (1993). The Board's identification of the issues on appeal above reflects the April 2025 award of an effective date of December 16, 2018.

Effective Dates

The general effective date rule is as follows unless specifically provided in the chapter, the effective date of an award based on a claim for compensation 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)(1). An exception to the general rule is found in 38 U.S.C. § 5110(b). The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if the application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1).

The effective date of awards of claims granted on a secondary basis can be no earlier than the date of the claim for compensation on a secondary basis. Ellington v. Nicholson, 22 Vet. App. 141, 145 (2007) (finding that the effective date for a grant of service connection for diabetes mellitus, type II and hypertension as secondary to leukemia was the date of the claim for secondary service connection, not the date of claim of service connection for leukemia), aff'd sub nom. Ellington v. Peake, 541 F.3d 1364. The effective date cannot be earlier than that of the underlying disability because entitlement to secondary service connection does not arise until the underlying disability is service connected. See 38 C.F.R. §§ 3.310, 3.400. In other words, service connection for a disability on a secondary basis arises from an underlying disability that is already service connected; therefore, "the date entitlement arose" for a secondarily service connected disability cannot be prior to the underling service connected disability's effective date. Id.; see DeLisio v. Shinseki, 25 Vet. App. 45 (2011); see also McGrath v. Gober, 14 Vet. App. 35 (2000).

Generally, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a), 3.160. 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). Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on specific claim form prescribed by the Secretary. This provision effectively removed informal claims from VA's processes. 38 C.F.R. § 3.155.

1. Entitlement to an effective date prior to October 25, 2019, for the grant of service connection for RLE radiculopathy.

The April 2020 rating decision granted entitlement to service connection RLE radiculopathy as secondary to lumbar strain with degenerative disc disease and intervertebral disc syndrome and assigned the effective date of October 25, 2019. See Rating Decision (April 2020). In May 2020, the Veteran disagreed via VA Form 20-0996 Request for Higher-Level Review. In October 2020, the AOJ issued a VA Form 20-0999 Higher-Level Review Return. A January 2021 rating decision denied an effective date prior to October 25, 2019, for the award of service connection for RLE radiculopathy. This appeal arises from the Veteran's disagreement with the effective date for the award of service connection for RLE radiculopathy.

The Veteran contends that he is entitled to an effective date for the award of service connection for RLE radiculopathy prior to October 25, 2019. See VA Form 20-0996 Request for Higher-Level Review (December 2020);
VA Form 20-0996 Request for Higher-Level Review. In October 2020, the AOJ issued a VA Form 20-0999 Higher-Level Review Return. A January 2021 rating decision denied an effective date prior to October 25, 2019, for the award of service connection for RLE radiculopathy. This appeal arises from the Veteran's disagreement with the effective date for the award of service connection for RLE radiculopathy.

The Veteran contends that he is entitled to an effective date for the award of service connection for RLE radiculopathy prior to October 25, 2019. See VA Form 20-0996 Request for Higher-Level Review (December 2020); VA Form 10182 (January 2021) (arguing that the July 23, 2018, Back Disability Benefits Questionnaire (DBQ) shows RLE radiculopathy, and he filed his claim for lumbar spine disability on July 19, 2018).

The Board concludes that the evidence supports an earlier effective date of July 23, 2018, but not earlier, for the grant of service connection for RLE radiculopathy.

In this case, the AOJ granted the claim of entitlement to service connection for lumbar spine disability in a November 2006 rating decision, effective February 9, 2006. See Rating Decision (November 2006). On July 20, 2018, the AOJ received the Veteran VA 21-526EZ, seeking a higher rating for lumbar spine disability "to include pinched nerve." See VA 21-526EZ, Fully Developed Claim (Compensation) (July 2018).

The Board finds that the date of claim for RLE radiculopathy is July 20, 2018. On that date, VA received the Veteran's claim for increased rating for lumbar spine disability, which may reasonably encompass symptoms and diagnoses associated with that disability, such as, radiculopathy of the lower extremities. See DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011). See also, Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Further supporting this finding is that the Veteran specifically sought compensation for "pinched nerve" as part of his claim for a higher rating for lumbar spine disability. Thus, the date of claim is July 20, 2018. It is not argued, nor does the record reflect, an earlier unadjudicated claim for RLE radiculopathy.

The Board finds that the date entitlement arose is July 23, 2018, the earliest date that it is factually ascertainable that the Veteran was assessed with RLE radiculopathy. Specifically, a September 2018 private Disability Benefits Questionnaire (DBQ) - Veteran Provided reflects that the Veteran was diagnosed with BLE radiculopathy on July 23, 2018. See Disability Benefits Questionnaire (DBQ) - Veteran Provided (September 2018). Prior to that date, there was no diagnosis associated with the Veteran's reports of BLE pain. For instance, a February 12, 2018, VA treatment note reflects that the Veteran experienced RLE pain that "emanates from hip." See CAPRI at 17 (August 2018). In May 2018, he was assessed with radiculitis from lumbosacral strain. Id. at 5. There was no mention of RLE radiculopathy in the treatment records prior to this date. Of import, the Veteran specifically reported low back pain without any involvement of the RLE and denied any edema prior to July 23, 2018. See CAPRI (August 2018).

Given the above, the Board finds that the criteria for an effective date from July 23, 2018, but no earlier are met. There is no legal or factual basis for the assignment of an effective date prior to July 23, 2018, for the award of service connection for RLE radiculopathy.

Accordingly, an effective date of July 23, 2018, but no earlier, for the award of service connection for RLE radiculopathy is granted.

Evaluations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average
the assignment of an effective date prior to July 23, 2018, for the award of service connection for RLE radiculopathy.

Accordingly, an effective date of July 23, 2018, but no earlier, for the award of service connection for RLE radiculopathy is granted.

Evaluations

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

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999).

When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007).

2. Entitlement to a compensable rating for hypertension.

An April 1997 rating decision granted service connection for hypertension and assigned an initial noncompensable rating, effective September 27, 1996. In February 2019, the Veteran filed a VA 21-526EZ, Fully Developed Claim (Compensation) seeking compensable rating for his hypertension. An April 2019 rating decision continued the noncompensable rating. In September 2019, the Veteran submitted a VA Form 20-0995 Supplemental Claim Application. A December 2019 rating decision continued the noncompensable rating. In December 2020, the Veteran filed VA Form 20-0996 Request for Higher-Level Review, seeking review of the December 2019 AOJ decision. A March 2021 rating decision continued the noncompensable rating. This appeal arises from the Veteran's disagreement with the rating assigned. See VA Form 10182 Notice of Disagreement (April 2021).

The rating review period begins on February 23, 2019, with one-year look back period; and ends on December 6, 2019-the date of the rating decision on appeal that was subject to HLR.

The Board concludes that the criteria for a compensable rating for service-connected hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.104, DC 7101.

Hypertension is rated pursuant to 38 C.F.R. §4.104, DC 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension). Under DC 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or; it is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 38 C.F.R. §4.104, Diagnostic Code 7101.

The use of medications is explicitly contemplated in DC 7101. In this regard, the Court has held that the Board did not err in failing to discount the ameliorative effects of blood pressure medication as the plain language of DC 7101 contemplates the effects of medication. McCarroll v. McDonald, 28 Vet
olic pressure predominantly 160 or more, or; it is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 38 C.F.R. §4.104, Diagnostic Code 7101.

The term "predominant" is not defined in the rating criteria. With respect to its definition as applicable to hypertension, the Veterans Benefits Administration has issued guidance in the M21-1 Adjudication Procedures Manual (M21-1) defining such terms. The M21-1 is not binding on the Board; however, the Board also has a responsibility to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases. Overton v. Wilkie, 30 Vet. App. 257 (2018). In regard to this case, the M21-1 provides the following relevant definition of "predominant" under 38 CFR 4.104, DC 7101, as requiring the "most common or prevailing" blood pressure reading. See M21-1.V.iii.5.3.e. Under DC 7101, where medication is used to control blood pressure, the Board should consider past blood pressure readings, including those prior to the appeal period, in assessing whether the Veteran displays a history of diastolic pressure predominantly 100 or more. Wilson v. McDonough, 35 Vet. App. 75, 78-79 (2021). Further, the plain text of 38 C.F.R. § 4.104, DC 7101, directs VA to consider the relevant historical blood pressure readings are those taken before the veteran began medication. Wilson, 35 Vet. App. at 76.

The Board finds that the Veteran's hypertension did not manifest in diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more; also, the Veteran did not both have a history of diastolic pressure predominantly 100 or more and require continuous medication for control.

Specifically, the Veteran's service treatment records (STRs) reflect blood pressure readings of diastolic pressure ranging from 70 to 98, with 98 diastolic blood pressure reading on one occasion in July 1990, and there were no systolic pressure readings predominantly 160 or more; readings range from 118/98 in July 1990, to 104/70 in November 1992, to 152/92 in December 1994, to 120/88 in June 1995, to 136/81 in December 1995, to 121/79 in July 2004, to 139/89 in August 2004, to 118/70 in May 2005, to 116/76 in July 2005, and to 147/85 and 120/80 in November 2005. See STR (October 1997, November 2016). A July 2004 STR shows that the Veteran was taking high blood pressure medication. Id. at 36.

Here, VA and private treatment records dated through December 2019 do not contain blood pressure readings reflecting a diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.

VA treatment records reflect multiple blood pressure readings ranging from 111/67 to 136/75 in 2018 and 2019; the Veteran denied postural dizziness and his hypertension was noted as well controlled. See CAPRI at 17 (October 2019). From 2006 to 2019, the Veteran's blood pressure ranged from 140/47 in May 2006, to 120/79, 145/86, 153/93 in June and July 2012, as well as 107/57 in September 2012, 144/80 in March 2013, 136/82 in March 2014, 140/84 in May 2015, 117/69 in July 2015, 124/82 in March 2016, and 148/83 in May 2017. See CAPRI (October 2019). His diastolic blood pressure readings ranged from 57 to 84, and systolic blood pressure readings from 107
2019, the Veteran's blood pressure ranged from 140/47 in May 2006, to 120/79, 145/86, 153/93 in June and July 2012, as well as 107/57 in September 2012, 144/80 in March 2013, 136/82 in March 2014, 140/84 in May 2015, 117/69 in July 2015, 124/82 in March 2016, and 148/83 in May 2017. See CAPRI (October 2019). His diastolic blood pressure readings ranged from 57 to 84, and systolic blood pressure readings from 107 to 153.

Likewise, the systolic pressure readings ranged mostly from the 100s to the 150s and did not more nearly approximate readings predominantly in the 160s. For instance, November 2019 VA-obtained Hypertension DBQ blood pressure readings were 144/82, 142/82 and 140/82. See C&P Exam at 2 (November 2019). Thus, these blood pressure readings do not support a rating in excess of 10 percent. The Veteran's treatment plan included anti-hypertensive medications. The DBQ reflects that there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to hypertension.

Here, the evidence reflects that the Veteran's diastolic pressure has been predominantly less than 100. The Board has considered the Veteran's history of hypertension, to include historic records. It is noted that one avenue for a 10 percent rating for hypertension includes a historic component as to diastolic blood pressure readings. The Board notes that neither during the rating review period nor prior to the rating review period, did records show any diastolic blood pressure reading above 100 or systolic blood pressure of 160 or higher. Thus, given a holistic review of the Veteran's history, the evidence persuasively weighs against finding there was a history of diastolic pressure predominantly 100 or more requiring continuous medication for control.

Importantly, here, the Board acknowledges the Veteran's belief that a compensable rating is warranted for his hypertension and observes that his blood pressure is controlled by medication that he takes daily. In this regard, however, the VA rating schedule for hypertension, DC 7101, explicitly contemplates the use of medication in the assignment of the rating. See McCarroll, 28 Vet. App. 267, 272-73 (2016). Stated differently, the Board may not discount the ameliorative effect of the Veteran's medication as a matter of law since the use of medication is contemplated by the rating criteria.

Accordingly, the claim for increase is denied. As the evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

3. Entitlement to a rating in excess of 10 percent for painful left knee scar.

4. Entitlement to a separate compensable rating for four left knee surgical scars.

Initially, the Board notes that the Veteran has a single scar, and although service connection was granted twice, initially for four surgical scars of the left knee, and then for left knee painful scar, the issue for entitlement to an increased rating will be addressed together, considering all applicable diagnostic codes.

By way of background, a February 2017 rating decision granted service connection for four surgical scars of the left knee and assigned a noncompensable disability rating effective June 15, 2016, under Diagnostic Code 7802. See Rating Decision (February 2017). The rating was based on a November 2016 VA examination showing scar left anterior knee stable, not tender on exam and linear - 17 cm - 1 cm - 0.5 cm - 0.8 cm. See C&P Exam at 12 (November 2016). In February 2019, the Veteran submitted a claim for increased rating for his service-connected left knee scars. See VA 21-526EZ, Fully Developed Claim (Compensation) (February 2019). An April 2019 rating decision continued the noncompensable rating for the Veteran's left knee scars under Diagnostic Code 7802. In September 2019, the Veteran disagreed via VA Form 20-0995 Supplemental Claim Application. See VA Form 20-0995 Supplemental Claim Application (September 2019). A December 2019 rating decision continued the noncompensable rating for the Veteran's left knee scars
.8 cm. See C&P Exam at 12 (November 2016). In February 2019, the Veteran submitted a claim for increased rating for his service-connected left knee scars. See VA 21-526EZ, Fully Developed Claim (Compensation) (February 2019). An April 2019 rating decision continued the noncompensable rating for the Veteran's left knee scars under Diagnostic Code 7802. In September 2019, the Veteran disagreed via VA Form 20-0995 Supplemental Claim Application. See VA Form 20-0995 Supplemental Claim Application (September 2019). A December 2019 rating decision continued the noncompensable rating for the Veteran's left knee scars under Diagnostic Code 7802, but separately granted service connection for painful left knee scar and assigned a 10 percent rating effective October 25, 2019, under Diagnostic Code 7804. See Rating Decision (December 2019). This appeal arises from the Veteran's disagreement with that decision. See VA Form 10182 (April 2021). The relevant rating review period begins on February 23, 2018, the date of claim for increase, - with one-year look back period - and it ends on December 6, 2019, the date of the rating decision on appeal, which was subject to HLR.

The Board concludes that the criteria for a rating in excess of 10 percent for painful left knee scar under all applicable diagnostic codes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7800-7805.

Scars are evaluated pursuant to Diagnostic Codes 7800, 7801, 7802, 7804, and 7805. 38 C.F.R. § 4.118. The Veteran's painful right gluteal cleft scar is rated under 38 C.F.R. § 4.118, Diagnostic Code 7804 for unstable or painful scar.

Diagnostic Code 7800 is only applicable for scars of the head, face or neck, and is thus inapplicable here. 38 C.F.R. § 4.118.

Diagnostic Code 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage and cover an area or areas of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.) warrants a 10 percent rating. 38 C.F.R. § 4.118.

Diagnostic Code 7802, for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage, a 10 percent rating is assigned for an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118.

Diagnostic Code 7804 provides compensable ratings for scars that are painful or unstable. 38 C.F.R. § 4.118. A 10 percent rating is provided for one or two scars that are unstable or painful. A 20 percent rating is provided for three or four scars that are unstable or painful. A 30 percent rating is provided for five or more scars that are unstable or painful. 38 C.F.R. § 4.118.

Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118.

Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. Note (2) states that if one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Id. Note (3) states that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. Id.

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31.

The Board finds that the more persuasive evidence of record weighs against finding that the criteria for the assignment of a rating in excess of 10 percent under Diagnostic Code 7804 for painful left knee scar is met. The scar is not more nearly manifested by more than one painful scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804. In this regard, a March 2019 and a November 2019 Scars/Disfigurement DBQ notes the Veteran has one scar to the left knee, which was not painful; it was not unstable and measured 8 cm x 1 cm in March 2019 and 10 cm x .5 cm in November 2019, for an approximate total area of 8 square centimeters and 5 square centimeters, respectively. See C&P Exam (March 2019, November 2019). Furthermore, the Veteran identified no limitation of in March 2019. In November 2019, he described difficulty straightening out his left knee, unsteady gait for 15 years, skin sensitivity and pain on the outside and inside of the knee. No functional impairment was indicated.

The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's painful left knee scar is not of the head, face, or neck, is not deep and non-linear, and is not associated with underlying soft tissue damage. Therefore, Diagnostic Codes 7800, 7801 and 7805 are inapplicable. See 38 C.F.R. § 4.118.

Moreover, the Veteran is separately rated as noncompensable under Diagnostic Code 7802. His painful left knee scar measuring at 5 or 8 square centimeters would not warrant a compensable rating under Diagnostic Code 7802, as it is less than 929 sq. cm; nor does it result in any functional impairment. See C&P Exam (March 2019, November 2019). Thus, upon reviewing the March 2019 and November 2019 DBQs, a rating in excess of 10 percent for painful left knee scar is not warranted.

While VA has a duty to maximize benefits, pyramiding is to be avoided, and only separate manifestations may be rated separately. See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). See also 38 C.F.R. § 4.14. Moreover, the assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). Here, a November 2019 Skin Diseases DBQ revealed the Veteran's reports difficulty straightening out his left knee and unsteady gait for 15 years. See C&P Exam (November 2019). However, the Veteran is in receipt of service connection for status post left total knee replacement at a 30 percent evaluation, effective August 1, 2017. Thus, any difficulty straightening his left knee and unsteady gait is compensated under the 30 percent rating for status post left total knee replacement.

The Veteran is competent to report his experienced symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, the Veteran's belief that his painful left knee scar warrants a rating in excess of 10 percent is outweighed by the competent and credible medical evidence that reflects the extent of impairment based on clinical findings coupled with the Veteran's reports during the VA examinations. See C&P Exam (March 2019, November 2019). The rating criteria are specific in indicating that some of the criteria must be objectively demonstrated.

Accordingly, the claim is denied. As the evidence of record persuasively weighs against initial compensable
30 percent rating for status post left total knee replacement.

Accordingly, the claim is denied. As the evidence of record persuasively weighs against initial compensable rating for partial prostatectomy scars, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021).]

REASONS FOR REMAND

5. Entitlement to a rating in excess of 10 percent for degenerative disease left great toe is remanded.

6. Entitlement to a rating in excess of 10 percent for degenerative disease right great toe is remanded.

7. Entitlement to an initial rating in excess of 10 percent for RLE radiculopathy is remanded.

A November 2006 rating decision granted service connection for degenerative disease of the right and left great toes with noncompensable evaluations, effective February 9, 2006. See Rating Decision (November 2006). In February 2019, the Veteran filed for increased rating for both. See VA 21-526EZ, Fully Developed Claim (Compensation) (February 2019). An April 2019 rating decision increased the Veteran's rating for degenerative disease of the right and left great toes to 10 percent each, effective September 9, 2018. See Rating Decision (April 2019). In September 2019, the Veteran filed a VA Form 20-0995 Supplemental Claim Application, and a December 2019 rating decision continued the 10 percent ratings for right and left great toes. In December 2020, he filed a VA Form 20-0996 Request for Higher-Level Review. A March 2021 rating decision again continued the 10 percent ratings. This appeal arises from the Veteran's disagreement with the ratings continued by that decision. See VA Form 10182 Notice of Disagreement (April 2021).

An April 2020 rating decision granted entitlement to service connection for RLE radiculopathy at 10 percent rating, effective October 25, 2019. See Rating Decision (April 2020). In May 2020, the Veteran disagreed with that decision via VA Form 20-0996 Request for Higher-Level Review. See VA Form 20-0996 Request for Higher-Level Review (May 2020). In October 2020, the AOJ issued a HLR return. In January 2021, the AOJ changed the Veteran's appeal to supplemental claim lane upon conducting development and implicitly denied entitlement to a rating in excess of 10 percent for RLE radiculopathy via its denial of entitlement to an earlier effective date. This appeal arises from the Veteran's disagreement with the initial rating assigned by the April 2020 decision. See VA Form 10182 Notice of Disagreement (April 2021).

These matters are remanded to correct a duty to assist error that occurred prior to the January 2021 rating decision (RLE radiculopathy) and March 2021 rating decision (scars) on appeal.

VA's duty to assist claimants in the development of their claims includes obtaining an examination and/or opinion when necessary to decide the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Further, once an examination or opinion is obtained, VA must ensure that it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that it is adequate).

Here, the AOJ obtained a March 2019 Non-Degenerative Arthritis and Dysbaric Osteonecrosis DBQ to evaluate the severity of the Veteran's service-connected bilateral toe degenerative disease (noting use of gabapentin 300mg daily, naproxen 500mg daily, cyclobenzaprine 10mg daily) as well as two Back DBQs that included findings for RLE radiculopathy, including in March 2019 (noting use of gabapentin 300mg daily, naproxen 500mg daily, cyclobenzaprine 10mg daily) and November 2019. See C&P Exam at 2 (March 2019). The DBQs do not reflect that the ameliorative effects of medication were discounted when evaluating the disabilities - right big toe and left big toe degenerative disease, and RLE radiculopathy. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010); cf. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). Under Jones v. Shinseki, 23 Vet. App. 382, 389 (2010), VA must discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use. Most recently, in Ingram v. Collins, 38 Vet. App. 130 (2025), held that the Jones applies to the evaluation of musculoskeletal conditions. The Court has rejected prior Board argument that, because 38 C.F.R. § 4.40 and Sharp v. Shulkin, 29 Vet. App. 26 (2017), Mitchell v. Shinseki, 25 Vet. App. 32 (2011), and DeLuca v. Brown, 8 Vet. App. 202 (1995) already require examiners to provide range of motion (ROM) estimates of impairment under the worst-case scenario of a flare-up, and thus applying Jones would serve no useful purpose. Thus, given the Court's holding in Jones, and more recently Ingram, the Board is compelled to find that these DBQs obtained by the AOJ were inadequate for VA rating purposes.

Therefore, remand is necessary to correct the duty to assist error on the part of the originating agency in satisfying its duties under 38 U.S.C. § 5103A, which occurred prior to the rating decisions on appeal. See 38 C.F.R. § 20.802.

8. Entitlement to a TDIU prior to December 16, 2018, is remanded.

9. Entitlement to DEA prior to December 16, 2018, is remanded.

The claim for TDIU and DEA prior to December 16, 2018, were raised by the Veteran during the rating review period under appeal. These issues are inextricably intertwined with the claims for increase remanded herein and VA cannot fairly proceed in adjudicating the claim for TDIU or the claim for DEA prior to December 16, 2018, until the increased rating claims have been resolved. See Green v. McDonough, 37 Vet. App. 127, 136 (2024) ("The Board also has the discretion to 'remand for correction of any other error by the [AOJ] in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim.' 38 C.F.R. § 20.802 (a)").

The matters are REMANDED for the following action:

1. Obtain retrospective findings from an appropriate clinician to determine the severity of the Veteran's service-connected (a) degenerative disease of right great toe, (b) degenerative disease of the left great toe and (c) radiculopathy of RLE for the below identified past examination.

If it is not possible to provide a specific finding or measurement without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training).

NOTE: If the Veteran's statements are discounted or rejected as to ROM, an explanation is required (e.g., inconsistent with other medical findings or history, implausibility, etc.).

Degenerative Disease of the Right Great Toe and the Left Great Toe

(a.) Provide an addendum retrospective opinion for the Veteran's service-connected left shoulder strain
LE for the below identified past examination.

NOTE: If the Veteran's statements are discounted or rejected as to ROM, an explanation is required (e.g., inconsistent with other medical findings or history, implausibility, etc.).

Degenerative Disease of the Right Great Toe and the Left Great Toe

(a.) Provide an addendum retrospective opinion for the Veteran's service-connected left shoulder strain to supplement the March 2019 Non-Degenerative Arthritis and Dysbaric Osteonecrosis DBQ that:

i. Estimates the baseline level of functioning, without the beneficial effects of gabapentin 300mg daily, naproxen 500mg daily, cyclobenzaprine 10mg daily, based on the evidence of record and the Veteran's statements.

Radiculopathy of RLE

(Continued on the next page)

(b.) Provide an addendum retrospective opinion for the Veteran's service-connected radiculopathy of RLE to supplement the March 2019 Back DBQ and November 2019 DBQ that:

i. Estimates the baseline level of functioning, without the beneficial effects of muscle relaxers, and pain or nerve medications, such gabapentin 300mg daily, naproxen 500mg daily, cyclobenzaprine 10mg daily, based on the evidence of record and the Veteran's statements.

Amanda G. Alderman

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board E. M. Pesin, 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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