judge_norm: M HYLAND

text: Entitlement to compensation under 38 U.S.C. § 1151 for worsening of right leg peripheral vascular disease due to a Department of Veterans Affairs (VA) surgical procedure in January 2004 is remanded.

text:
Citation Nr: 22016000
Decision Date: 03/21/22	Archive Date: 03/21/22

DOCKET NO. 09-19 098
DATE: March 21, 2022

REMANDED

Entitlement to compensation under 38 U.S.C. � 1151 for worsening of right leg peripheral vascular disease due to a Department of Veterans Affairs (VA) surgical procedure in January 2004 is remanded.

REASONS FOR REMAND

The Veteran had active service from March 1969 to December 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by a VA Agency of Original Jurisdiction (AOJ).

The Veteran testified at a Board hearing in April 2011 and a copy of the transcript is in the claims file.  In February 2022, the Veteran was notified that the Veterans Law Judge (VLJ) who conducted the hearing was no longer employed by the Board, and he was offered another hearing before a different VLJ.  The Veteran did not reply to the notification.  Therefore, the Board finds that another hearing is not warranted in this appeal.

The Board acknowledges the lengthy procedural history of this appeal, which includes a May 2012 Board decision, which was subsequently vacated by the United States Court of Appeals for Veterans Claims (CAVC or Court) in December 2013.  Then, in September 2020, the Court vacated a June 2018 Board decision denying entitlement to compensation under 38 U.S.C. � 1151.  The case was remanded to the AOJ for additional development in May 2021.  Unfortunately, as explained below, further development is required.  The Board sincerely apologizes for any additional delay in rendering a decision for this claim on appeal.  However, to ensure the Veteran is afforded every opportunity to substantiate his claim, another remand is required.

The Board is obligated to ensure AOJ compliance with remand directives.  Stegall v. West, 11 Vet. App. (1998).  Most recently, in May 2021, the Board remanded this case to the AOJ to obtain a medical opinion addressing whether the Veteran had additional disability after the January 2004 surgery.  Remand directives required a medical opinion addressing certain evidence in the claims file.  Specifically, an examiner was to address whether the right thigh swelling, abnormal gait, or peripheral neuropathy noted in October 2005 private records constituted additional disability caused by the surgery.  The examiner was also to address whether occluded bypass graft and abnormal gait or any other claimed disability would have been disclosed prior to surgery.  The resulting August 2021 VA medical opinion regarding additional disability discussed "numbness" and worsening of the Veteran's peripheral vascular disease, but did not otherwise address the evidence as outlined in the Board remand directives.  Therefore, another remand is required.

The matters are REMANDED for the following action:

1. Obtain a supplemental opinion from a VA physician regarding the Veteran's claim for compensation benefits for right lower extremity disability.  The Veteran's record should be reviewed.  If the examiner determines that he or she cannot respond to the Board's inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an examination.  If an in-person examination cannot be conducted, an examination by other means must be offered.  The examiner should respond to the following questions:

(a.) With regard to the January 2004 surgery of the right leg at issue, is it at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran sustained any additional disability as a result of the surgery? In responding, the examiner should address whether the Veteran's documented abnormal gait and peripheral neuropathy are additional disability after the surgery.

The examiner must address: (1) symptoms, findings, and diagnoses documented after the January 2004 surgery, including abnormal gait; (2) whether the occluded bypass graft diagnosed in April 2004 is an additional disability of the right leg resulting from the January 2004 surgery; (3) the private medical records from Memorial Medical Center dated in October 2005, which show right thigh swelling due to imprecise reapproximation of the soft tissues during surgery, right lower extremity neuropathy secondary to surgery, and mild peripheral vascular disease of the right lower extremity.

(b.) If there was additional disability caused by or the result of the January 2004 surgery, was it at least as likely as not (an approximate balance of positive and negative evidence) the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment?

(c.) If there was additional disability caused by or the result of the January 2004 surgery, did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider?

(d.) And, was the proximate cause of any additional disability not reasonably foreseeable?

The examiner must address whether abnormal gait, worsening of peripheral vascular disease, or peripheral neuropathy of the right lower extremity is the type of risk that would have been disclosed in connection with informed consent procedures.

A complete explanation for all opinions expressed must be provided. A clearly stated rationale must not be based solely on lack of documentation or records. The reasons for any opinion must include a discussion of the relevant evidence and medical principles. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why.

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Smith, Associate 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.


series: legacy

judge_norm: S SORATHIA

judge_role: Acting Veterans Law Judge

disposition: granted

condition: shoulder

text:
Citation Nr: 22017000
Decision Date: 03/23/22	Archive Date: 03/23/22

DOCKET NO. 18-50 803
DATE: March 23, 2022

ORDER

Service connection for right shoulder osteoarthritis is granted.

FINDING OF FACT

The competent and probative evidence supports a finding that the Veteran's right shoulder osteoarthritis originated during active service and has continued since service, including symptoms of lingering pain.

CONCLUSION OF LAW

The criteria for service connection for right shoulder acromioclavicular joint osteoarthritis are met. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had military service in the United States Army, from May to July 1984 and from January to April 1990.

This appeal comes before the Board of Veterans' Appeals (Board) from an April 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office.

In March 2022, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge. This decision is being made under the "one-touch" program. The hearing transcript will still be processed and associated with the claims file in the ordinary course of business.

The Veteran seeks service connection for a right shoulder disability. He contends that he sustained a right shoulder injury during his initial period of military service, and that he has had lingering pain since that time.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The Veteran has a diagnosis of right shoulder acromioclavicular joint osteoarthritis.

Regarding Shedden element number two, evidence of in-service injury or disease, the Veteran's service treatment records (STRs) reflect that in May 1984, he experienced right shoulder pain. The Veteran reported that his right shoulder gave out and that he heard a "pop" while holding on to a pole and branch on an obstacle course. An x-ray of the right shoulder revealed no significant abnormality.  The assessment of the examining clinician was contusion of the right shoulder. A June 1984 report reflects that the Veteran reported right shoulder pain that had been present for two (2) weeks. As the Veteran sustained a right shoulder contusion in May 1984, the Board finds that the criteria for Shedden element number two (2), evidence of an in-service injury, has been met.

Thus, the question that remains is whether the Veteran's current right shoulder disability is related to the in-service contusion. There is one VA opinion that addresses this question and it is against the claim. In March 2018, after a review of the record, to include the Veteran's STRs, and physical examination of his right shoulder, the examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's right shoulder condition was incurred in or caused by an event, injury or illness during service. The examiner noted the Veteran's in-service right shoulder injury and right shoulder strain. The examiner reasoned that the right shoulder strain was caused by a forceful or rapid movement which overstretched muscles and tendons. The examiner further related that ligament tears had been documented due to the [in-service] strain but that the strain had resolved without permanent residuals. The examiner concluded that the right shoulder strain did not cause the currently diagnosed right shoulder joint arthritis, and that it was a separate condition. See March 2018 VA examination report. The Board finds the VA examiner's opinion to be inadequate because the examiner did not consider the Veteran's lay testimony regarding onset of symptoms and continuous symptoms of having had right shoulder pain since service.

Thus, with his lay statements of having had lingering pain since service that are corroborated by his STRs, including the documented right shoulder contusion in May 1984, service connection is warranted for right shoulder acromioclavicular joint osteoarthritis and the claim is granted. 38 C.F.R. �� 3.303, 3.309.

S. Sorathia

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Carole Kammel, 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.


judge_norm: T REYNOLDS

judge_role: Veterans Law Judge

disposition: remanded

condition: cancer

text:
Citation Nr: 22018000
Decision Date: 03/27/22	Archive Date: 03/27/22

DOCKET NO. 14-23 046
DATE: March 27, 2022

REMANDED

Entitlement to service connection for colon cancer, to include as due to exposure to contaminated water at Camp Lejeune and/or due to exposure to herbicide agents in Vietnam, is remanded.

INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from February 1966 to February 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  The Board remanded this claim in November 2019 for additional development.

In July 2020, the Board denied this issue which was appealed to the Court of Appeals for Veterans Claims (CAVC).  Pursuant to a Joint Motion for Remand, the CAVC issued a March 2021 Order to vacate the July 2020 denial and remanded the underlying claim to the Board for readjudication.

The Board remanded the claim in July 2021. This case has since been returned to the Board for further appeal review.

REASONS FOR REMAND

Although the Board regrets further delay, remand is necessary to ensure compliance with previous remand directives and proper development.  When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance.  Stegall v. West, 11 Vet. App. 268 (1998).

As part of the July 2021 Board remand, the RO was required to obtain appropriate VA medical examination(s) and opinion(s) regarding the nature and etiology of the Veteran's colon cancer.  The remand specifically requested opinions regarding the Veteran's conceded exposure to contaminated water at Camp Lejeune and herbicide agents in Vietnam.

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The RO obtained a November 2021 medical opinion regarding the Veteran's conceded exposure to contaminated water at Camp Lejeune.  The November 2021 examiner concluded the Veteran's colon cancer was less likely than not caused by the Veteran's exposure to contaminated water at Camp Lejeune.  To support this conclusion, the examiner expressly discussed the facts, medical principles, and scientific literature related to the Veteran's claim.

The RO also obtained an addendum medical opinion in December 2021 to address the Veteran's colon cancer and his conceded exposure to herbicides in Vietnam.  However, the Board finds December 2021 medical opinion to be inadequate.

The December 2021 examiner concluded the Veteran's colon cancer was less likely than not incurred in service, to include his exposure to herbicides.  In support of this conclusion, the examiner indicated "on review of the medical literature no conclusive evidence was found that contaminated water or herbicides cause colon cancer."  However, the examiner failed to discuss the relevant medical literature or provide citations to support her conclusion.

In this respect, the VA examiner must consider and expressly discuss the facts, medical principles, and scientific literature relevant to the specific claim that the Veteran's exposure to herbicides agents caused his colon cancer.  As such, the Board finds a remand is necessary in order to obtain an addendum medical opinion.

Accordingly, this matter is REMANDED for the following action:

Obtain an addendum medical opinion to address the etiology of the Veteran's colon cancer.  All pertinent evidence of record must be made available to and reviewed by the examiner.  Any indicated studies should be performed.

Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether the Veteran's colon cancer at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service, to specifically include as a result of his exposure to herbicide agents. The examiner is asked to consider and expressly discuss the facts, medical principles, and scientific literature relevant to this case.

In regard to herbicide exposure, the Board is cognizant that colon cancer is not a presumptive disease associated with herbicide exposure.  The Board seeks a medical opinion on the likelihood that this Veteran's colon cancer is related to his herbicide exposure given his medical history, family history, existence of or absence of other risk factors, and any other additional factors deemed relevant by the examiner.  In particular, the examiner should consider any risk factors the Veteran may have had for the development of colon cancer, as well as the current scientific literature and studies.

The examiner must provide a complete rationale for all proffered opinions.  If the examiner is unable to provide any required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.

T. REYNOLDS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Nestander, Jessica S.

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.


judge_norm: K A BANFIELD

condition: headache

disposition: denied

text:
Citation Nr: 22019000
Decision Date: 03/31/22	Archive Date: 03/31/22

DOCKET NO. 17-56 281A
DATE: March 31, 2022

ORDER

During the period on appeal prior to September 9, 2020, a 50 percent rating for migraines is granted.

Referral for consideration of an extraschedular rating for migraines is denied.

FINDING OF FACT

Throughout the period on appeal, the Veteran's service-connected migraines have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, and the Veteran's symptoms and their severity are contemplated by the rating criteria.

CONCLUSIONS OF LAW

1. Prior to September 9, 2020, the criteria for a rating of 50 percent for migraines have been more nearly approximated. 38 U.S.C. �� 1155, 5107(b) (2012); 38 C.F.R. �� 3.102, 4.7, 4.124a, Diagnostic Code 8100 (2020).

2. The criteria for referral for consideration of an extraschedular rating for migraines have not been met. 38 U.S.C. �� 1155, 5107 (2012); 38 C.F.R. � 3.321(b) (2020).

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran served on active duty from May 2003 to December 2014.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

This matter was previously before the Board in June 2019 and January 2020 and was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action.

Disability Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent    the average impairment of earning capacity resulting from disability.  38 U.S.C. � 1155; 38 C.F.R. � 4.1 (2020).

1. Entitlement to a higher rating for migraines

The Veteran's service-connected migraines have been assigned a 30 percent rating prior to September 9, 2020, and a 50 percent rating thereafter.

Under Diagnostic Code 8100, a 30 percent rating is assigned for characteristic prostrating migraine attacks occurring on an average once a month over the last several months.  A maximum 50 percent rating is assigned for very frequent completely prostrating and prolonged migraine attacks productive of severe economic inadaptability. 38 C.F.R. � 4.124a, Diagnostic Code 8100.

"Migraine" is "an often familial symptom complex of periodic attacks of vascular headache, usually temporal and unilateral in onset, commonly associated with irritability, nausea, vomiting, constipation or diarrhea, and often photophobia."  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1166 (32nd ed.        2012).  "Migraine is a broader term than headache," and Diagnostic Code        8100 contemplates all symptoms of migraine attacks, not just headaches.      Holmes v. Wilkie, 33 Vet. App. 67, 72-73 (2020).  The phrase "characteristic prostrating attacks ... describes migraine attacks that typically produce powerlessness or a lack of vitality." Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018) (citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY           OF THE ENGLISH LANGUAGE UNABRIDGED 1822 (1966), which defines "prostrating" as "lacking in vitality or will: powerless to rise: laid low").  In     order to warrant a 50 percent rating under Diagnostic Code 8100, migraine    attacks "must render the veteran entirely powerless."  Id. at 253 (emphasis in original).

Additionally, ameliorative effects of medication may not be considered when evaluating a disability if those effects are not explicitly contemplated by the     rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012).

Upon review of the record, the Board finds that a 50 percent rating is warranted for migraines throughout the period under review.

Treatment records show that the Veteran saw a private neurologist for treatment of his migraines throughout the period under review.  Those records show that the Veteran has tried nearly every headache medication available, including Botox    and nerve blocks, with little to no relief.  In December 2015, the Veteran reported having headaches severe enough to interfere with daily activities about once or twice a week, which lasted between eight and 48 hours.  He also reported milder headaches about once or twice a week lasting between four and 12 hours.  The Veteran described his migraine attacks as a one-sided pounding, stabbing, and throbbing headache pain accompanied by watering eyes, nausea, and sensitivity to light and sound.  He also reported occasional symptoms of blind spots, a sensation of the room spinning, and cold sweats.  It was noted that the Veteran brought headache logs with him to the appointment in which he detailed missing work or leaving early many days each month over the past year.  He reported resigning from his job in October 2015 because his employer was unable to accommodate the fact that he was missing work or leaving early so often due to his uncontrolled headaches.

A December 2015 correspondence from the Veteran's former employer indicates that the Veteran resigned in October 2015 because he was unable to perform his duties due to daily migraines.  The Veteran was subsequently awarded disability benefits from the Social Security Administration (SSA) primarily due to his migraines and secondarily due to essential hypertension.  He is also in receipt of a total disability rating based on individual unemployability (TDIU) throughout the period on appeal, in large part, due to his migraines.

The Veteran underwent a VA examination in January 2016, during which he reported having about ten migraines a month, seven of which were so severe       that he had to lie in bed for 12 to 24 hours.  He described his migraines as severe headache pain accompanied by light headedness, nausea, dizziness, blurred vision, and sensitivity to light and sound.  The examination report lists over 25 different medications that the Veteran tried in an effort to control his migraines, which have had little to no effect.  The examiner indicated that the Veteran was unable to    work during migraine flares and characterized the Veteran's migraines as being manifested by characteristic prostrating attacks occurring once a month.

The Veteran underwent another VA examination in October 2017, during which    he reported progressively worsening headaches accompanied by nausea, sensory changes, blurred vision, and sensitivity to light, which occurred about two to five times a week and lasted between four hours and two days.  He reported being able to perform daily activities with mild headaches, but indicated that he must lie down and sleep during severe migraine attacks.  The examiner indicated that the Veteran did not have prostrating attacks of headache pain.

The Veteran underwent another VA examination in February 2019, during which he reported having migraines about three days a week, which were accompanied by nausea, vision changes, irritability, and sensitivity to light.  The examiner indicated that the Veteran did not have characteristic prostrating attacks of headache pain.

The Veteran underwent another VA examination in September 2020, during which he reported having migraines about twice a week, which lasted between 12 and 36 hours, despite receiving Botox injections every three months.  It was noted that the Botox injections have reduced the frequency of the Veteran's migraines from about 15 a month to eight a month.  The examiner characterized the Veteran's migraines as being manifested by prostrating attacks occurring once a month.

In sum, throughout the period under review, the Veteran has had migraines several times a week, which have been manifested by severe headache pain, lightheadedness, nausea, dizziness, blurred vision, sensory changes, irritability, and sensitivity to light and sound.  The record shows that the Veteran resigned from his job in October 2015 because his former employer was unable to accommodate the number of days he missed work or left early due to migraines, and the Veteran was subsequently awarded TDIU and SSA disability benefits due, in large part, to the frequency and severity of his migraines.  Based on          the foregoing, the Board finds that the Veteran's migraines have more nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability throughout the period on appeal.  Accordingly, a rating of 50 percent for migraines is granted during the period     on appeal prior to September 9, 2020. See 38 C.F.R. � 4.124a, Diagnostic Code 8100.

The Board finds that a rating in excess of 50 percent is not warranted at any      time during the period under review, as 50 percent is the highest rating available for migraines, and neither the Veteran nor his attorney has articulated any way in which the symptoms or severity of the Veteran's migraines are not contemplated   by the rating criteria.  As all symptoms of migraine attacks are contemplated by Diagnostic Code 8100, the Board finds that the Veteran's migraines are capable of evaluation by conventional means. See Holmes, 33 Vet. App. at 72-73; see also Long v. Wilkie, 33 Vet. App. 167, 173-75 (2020) ("[W]here a disability proves capable of evaluation by conventional means, it cannot be deemed exceptional.").  Moreover, an extraschedular rating "performs a gap-filling function" that accounts for situations in which a veteran's overall disability picture establishes something    less than total unemployability, but where the impact of a veteran's disability is nonetheless inadequately represented. Johnson v. McDonald, 762 F.3d 1362, 1366 (Fed. Cir. 2015), superseded in part by regulation, 82 Fed. Reg. 57230 (Dec. 8, 2017).  In this case, the Veteran is in already in receipt of TDIU throughout the period under review; therefore, there is no "gap" to fill by 38 C.F.R. � 3.321(b) from that date. See Johnson, 762 F.3d at 13656.

As the Veteran has not alleged, and the evidence does not suggest, that she suffers from symptomatology that is not contemplated by the assigned rating, referral for consideration of an extraschedular rating for migraines not warranted.

K. A. BANFIELD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Banister, 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.


judge_norm: K CONNER

benefit: tdiu

text:
Citation Nr: 22020000
Decision Date: 04/04/22	Archive Date: 04/04/22

DOCKET NO. 19-01 627
DATE: April 4, 2022

ORDER

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

FINDING OF FACT

The Veteran is unable to secure or follow a substantially gainful occupation due service-connected disability.

CONCLUSION OF LAW

The criteria for entitlement to TDIU have been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.102, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1970 to December 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating in excess of 70 percent for posttraumatic stress disorder and TDIU.  The Veteran filed a notice of disagreement (NOD) in February 2018, and a statement of the case (SOC) was issued in November 2018.  In January 2019, the Veteran submitted a substantive appeal (VA Form 9) on which he indicated that he wished to appeal the TDIU issue only.

In November 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge with respect to the TDIU issue.  A transcript is of record.

Entitlement to TDIU

The Veteran asserts he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.  He reports that, in addition to significant PTSD symptoms, medication prescribed to treat his service-connected disabilities causes drowsiness which prevents him from engaging in his occupational field, operating commercial trucks.

A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. � 4.16(a).  To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  Id.

For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war.  38 C.F.R. � 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of � 4.16(a) requires the use of the combined rating table).

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components.  See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).  The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person.  Id.  The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment.  Id.  Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity).  Id.

An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training.  See Todd v. McDonald, 27 Vet. App. 79, 85 (2014).  It does not require a showing of 100 percent unemployability.  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).  The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The Veteran has the following disabilities that are service connected:  PTSD, evaluated as 70 percent disabling; diabetes mellitus, type II, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling, and erectile dysfunction associated with diabetes, evaluated as 0 percent disabling.  His combined rating is 80 percent from February 22, 2014.

Based on the forgoing, the Veteran has at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  Accordingly, the Board may consider the claim for a TDIU on a schedular basis.  38 C.F.R. � 4.16(a).

For the reasons that follow, the Board finds that a TDIU is warranted.

The Veteran has a long occupational history as a truck driver.  During his period of active duty, the Veteran's military occupational specialty was truck driver.  After service separation, he attended truck driving school and received a commercial driver's (CDL) license.  He worked as a truck driver for a company for 33 years until the company went bankrupt.  Afterwards, he performed odd jobs and drove trucks for another company.  In approximately September 2015, he retired from truck driving.  See November 2017 and August 2018 VA medical examination reports; August 22, 2018 VA mental health note.  Thereafter, the Veteran obtained work as a part-time as a truck driver.  See TDIU application, received October 24, 2017.  According to a November 2017 letter from a representative of that company, the Veteran worked on an "as needed" basis from October 2015 to July 2017 and grossed $2040.  See VA 21-4192, received November 30, 2017.

With respect to his educational history, although the Veteran indicated he only completed the first year of high school on his TDIU application, various VA treatment records, including the August 2014 PTSD VA examination, and his Board hearing testimony indicate that he graduated from high school.  See e.g., August 2014 VA medical examination; November 2021 Hearing Transcript at page 7.

Given his educational and occupational history, the Board finds that the Veteran's ability to secure and follow a substantially gainful occupation is clearly impacted by the physical effects of medications prescribed for his service-connected disabilities.  On his January 2019 VA Form 9, the Veteran indicated that he left his last position as a truck driver, in part, because he was falling asleep behind the wheel of his truck due to his medications.

The record on appeal contains VA clinical records confirming that the Veteran is prescribed multiple medications for both service-connected and nonservice-connected disabilities.  With respect to his service-connected disabilities, these clinical records reflect that the Veteran is prescribed Trazodone for psychiatric symptoms and Gabapentin for symptoms associated with diabetes, both of which may cause drowsiness.  None of the clinical evidence of record attributes the Veteran's drowsiness to medications for his service-connected disabilities versus his nonservice-connected disabilities.  Thus, the Board will presume that the drowsiness is caused by service-connected medications.  Certainly, medication-induced drowsiness is inconsistent with the occupational demands of a commercial truck driver or other similar positions consistent with the Veteran's work history.

The Veteran's ability to secure and follow a substantially gainful occupation is also impacted by the mental effects of his service-connected PTSD.  During a November 2017 VA PTSD examination, for example, the examiner indicated that the Veteran's PTSD symptoms included depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and social withdrawal in response to heightened hostile mood.  The examiner noted that the Veteran's heightened hostile mood, intermittent poor impulse control, rigid need for order, and social withdrawal have impacted upon his social and previous occupational functioning.  The examiner concluded that the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.

(Continued on the next page)

Clearly, the Veteran's PTSD symptoms impact his ability to perform the occupational activities required of an individual with his work history as a truck driver, such as concentration, maintaining alertness, and adapting to stressful circumstances.  Although the examiner did not conclude that the Veteran was precluded from employment as a result of his PTSD symptoms, the Board notes that entitlement to a TDIU is a legal determination, not a medical one.  Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).  Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record.  See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019).

After reviewing the lay and medical evidence of record, the Board finds that the Veteran's service-connected disabilities at least as likely as not preclude him from the ability to secure and follow a substantially gainful occupation consistent with education, skills, training, and work history.  Accordingly, a TDIU is warranted.

K. Conner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A.N., Associate 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.


judge_norm: ROMINA A CASADEI

condition: back

condition: radiculopathy

text:
Citation Nr: 22021000
Decision Date: 04/07/22	Archive Date: 04/07/22

DOCKET NO. 20-17 682
DATE: April 7, 2022

ORDER

Entitlement to service connection for a lower back disability is granted.

Entitlement to service connection for right lower extremity radiculopathy is granted.

Entitlement to service connection for left lower extremity radiculopathy is granted.

REMANDED

Entitlement to service connection for an abdominal and/or gall bladder disability is remanded.

Entitlement to a disability rating higher than 10 percent for right tibia fracture residuals is remanded.

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

FINDINGS OF FACT

1. The evidence is at least in approximate balance as to whether the Veteran's lower back disability is etiologically related to active service.

2. The evidence is at least in approximate balance as to whether the Veteran's right lower extremity radiculopathy is proximately due to his lower back disability.

3. The evidence is at least in approximate balance as to whether the Veteran's left lower extremity radiculopathy is proximately due to his lower back disability.

CONCLUSIONS OF LAW

1. The criteria for service connection for a lower back disability have been met. 38 U.S.C. �� 1110, 1154, 5107; 38 C.F.R. �� 3.102, 3.303.

2. The criteria for service connection for right lower extremity radiculopathy have been met. 38 U.S.C. �� 1110, 1117, 5107; 38 C.F.R. �� 3.102, 3.303, 3.310.

3. The criteria for service connection for left lower extremity radiculopathy have been met. 38 U.S.C. �� 1110, 1117, 5107; 38 C.F.R. �� 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Introduction

The Veteran served on active duty in the United States Army from May 2012 to July 2013.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the U.S. Department of Veterans Affairs (VA) Regional Office (RO).

The issue of entitlement to a TDIU has been raised by the record. As such, the Board has taken jurisdiction of this issue as part and parcel of the increased rating claim(s) on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009).

General Legal Criteria

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. � 1110; 38 C.F.R. � 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. � 3.303(d).

In addition, service connection may be established on a secondary basis by establishing that (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. � 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. � 3.310).

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. � 1154(a). 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

"[I]f the positive and negative evidence is in approximate balance ... the claimant receives the benefit of the doubt." Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Background and Analysis

The Veteran's service treatment records (STRs) show that during service, in May 2013, he reported lower back pain after running. The STRs show that the pain continued over the next several months and occasionally radiated to the left buttock and thigh. A May 2013 treatment records states that the condition was "probably early degenerative disc disease." June 2013 imaging results showed lumbar spine facet joint hypertrophy.

In a January 2019 affidavit, the Veteran explained that his lower back pain started around the time he fractured his right leg (in service), and continued to become progressively worse ever since. He described his lower back pain, radiating to his legs, as being horrible during his first year after service.

In January 2018, the Veteran was afforded a VA examination. The examiner diagnosed lumbar strain and intervertebral disc syndrome (IVDS). Ultimately, the examiner opined that there was no objective evidence to establish a link between the Veteran's lower back disability and his service.

Incidentally, the examiner diagnosed bilateral lower extremity radiculopathy and determined that this condition was secondary to the Veteran's lower back disability on the basis of the nature of the back disability and a review of the Veteran's medical records.

In August 2020, a report was submitted by Dr. V.F., a board-certified orthopedic surgeon. Dr. V.F. first noted he had conducted a phone interview with the Veteran and extensively reviewed his medical history. Dr. V.F. began with a summary of the Veteran's STRs, described above, which document an in-service back injury with ongoing pain and a provisional diagnosis of early degenerative disc disease. Dr. V.F. then noted the Veteran's account of continuous lower back pain since service to the present day. Dr. V.F. noted that there was no evidence, and the Veteran confirmed, that he did not have any lower back issues prior to service.

Ultimately, Dr. V.F. concluded that based on the STRs and the reliable history provided by the Veteran, the lower back disability was at least as likely as not incurred during service.

Dr. V.F. further concluded that the Veteran's bilateral radiculopathy was causally related to his lower back disability. In support of his opinion, Dr. V.F. noted the STRs which showed reports of radiating pain to the left leg. In addition, he explained, it is common for a significant injury to initiate damage to the disc cartilage that progresses to place increasing pressure on the exiting nerve roots, resulting in radiculopathy.

Upon a review of the foregoing, the Board observes that the January 2018 VA examiner's opinion was based on the false premise that there was no objective evidence of in-service back complaints. The examiner failed to acknowledge or discuss the extensive STRs documenting back pain over a period of months. For this reason, the Board finds the January 2018 VA opinion is of limited probative value.

On the other hand, the opinion by Dr. V.F. includes an extensive and accurate review of the STRs, along with medical explanations in support of the opinions linking the Veteran's lower back disability ot service, and his bilateral radiculopathy to his lower back disability. For these reasons, the Board finds the opinion is entitled to significant probative value.

The Board observes that the Veteran's account of continuous symptomatology since service has remained consistent throughout the period of the claim and is uncontroverted by any probative evidence of record. Consequently, the Board finds the Veteran's assertions to be credible.

After careful consideration of the foregoing, the Board finds that the evidence is at least in approximate balance as to whether the Veteran's lower back disability was incurred in service, and as to whether the Veteran's bilateral lower extremity radiculopathy is proximately due to the Veteran's lower back disability. Accordingly, granting of service connection for a lower back disability and bilateral lower extremity radiculopathy is warranted.

REASONS FOR REMAND

Service connection for a gall bladder disability

The record shows that in December 2015, the Veteran was diagnosed with "gall stone with mild gall bladder thickening" and recommended for surgery.

In October 2017, the Veteran filed claims for service connection for an "abdominal pain condition" as well as "residuals post gall bladder surgery."

In the January 2018 rating decision on appeal, the RO denied service connection for "gall bladder removal (also claimed as abdominal pain)." In its decision, the RO stated that the STRs showed the Veteran had not reported abdominal pain during service.

In this regard, the Board notes that a notation of "stomach issues" appears in the Veteran's STRs on 15 occasions.

In addition, it is unclear to the Board why the claims for service connection for abdominal pain and gall bladder removal were combined by the RO.

The Board notes that the Veteran has not been afforded a VA examination to address the nature and etiology of any abdominal and/or gall bladder condition.

Under these circumstances, the Board finds a remand is warranted for a VA examination or examinations. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA must provide a VA examination or obtain a medical opinion where there is a current disability, and an indication the disability may be related to the veteran's service, but there is insufficient medical evidence to decide the claim).

Increased rating for right tibia fracture residuals

The Veteran is in receipt of a 10 percent rating for his right tibia fracture residuals under 38 C.F.R. � 4.71a, Diagnostic Code 5260, which assigns evaluations based on limitation of range of motion of the leg.

In the recent case of Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. � 4.59 requires that all VA examinations related to a joint disability must include range of motion testing in both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with the range of motion measurements of the opposite undamaged joint.

The Court has also held that the mere lack of an opportunity for a VA examiner to observe a flare-up of a service-connected condition is an insufficient basis for not estimating the flare-up's functional effects. Sharp v. Shulkin, 29 Vet. App. 26 (2017).

In this case, the Veteran was afforded a VA knee and leg examination in January 2018. The examiner noted the Veteran's report that he could not put pressure on his right leg when the weather was rainy or cold. The examiner noted that there was pain on weight-bearing. Range of motion testing was normal. The examiner noted that flare-ups of the condition were reported to cause additional symptoms, but declined to provide an estimate of additional loss of range of motion on the basis that there was no flare-up at the time of the examination.

Upon review, it does not appear that the VA examination report includes range of motion results with active as well as passive motion, or with weight-bearing as well as non-weight-bearing. In addition, the examiner declined to provide an estimate of range of motion during a flare-up solely on the basis that a flare-up was not occurring at the examination.

For these reasons, the Board finds that the VA examination report does not comply with the Court's holdings in Correia and Sharp, and that a remand is required for an additional examination.

Entitlement to a TDIU

The outcome of the remanded issues above could impact the issue of entitlement to a TDIU. Therefore, the issue is inextricably intertwined with the other claims. As such, the Board's adjudication of the TDIU issue must be deferred pending completion of the requested remand actions.

In addition, the Board observes that the Veteran has not filed a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) or otherwise provided VA with information regarding his employment history and/or current employment status. Accordingly, the Veteran's employment history and current job status should be clarified on remand.

The matters are REMANDED for the following actions:

1. Solicit a completed, updated VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) from the Veteran, in addition to any other evidence relevant to the issue of entitlement to a TDIU.

2. Afford the Veteran a medical examination to determine the nature and etiology of any present abdominal and/or gall bladder condition.

After the examination, and a review of the relevant records and lay statements, the examiner should identify all abdominal conditions present during the period of the claim.

Then, the examiner should identify all gall bladder conditions present during the period of the claim.

Then the examiner should state opinions as to the following:

a)	Whether the evidence is in at least approximate balance as to whether each identified abdominal condition originated during or is otherwise etiologically related to the Veteran's active service.

b)	Whether the evidence is in at least approximate balance as to whether each identified gall bladder condition originated during or is otherwise etiologically related to the Veteran's active service.

In providing his or her opinions, the examiner should address the numerous notations of "stomach issues" appearing in the Veteran's service treatment records.

The examiner must provide a rationale for any proffered opinion.

3. Afford the Veteran a VA examination to determine the current severity of his service-connected right tibia fracture residuals.

Range of motion of the right leg should be tested in both active and passive motion, and in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

The examiner should further discuss additional functional limitation of the right leg with repeated movement over time and during flare-ups. Any such additional limitation of motion should be expressed in additional degrees of lost motion. The examiner must attempt to provide an estimate, even in the absence of an opportunity to observe the flare-up. The estimate may be based on the Veteran's reports of limitation during such flares.

Romina A. Casadei

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Hampton, 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.


judge_norm: R FEINBERG

text:
Citation Nr: 22022000
Decision Date: 04/14/22	Archive Date: 04/14/22

DOCKET NO. 95-25 965
DATE: April 14, 2022

ORDER

A total disability rating based on individual unemployability (TDIU), from October 1, 2006, is granted.

A disability rating in excess of 30 percent for service-connected venereal warts is denied.

FINDINGS OF FACT

1. The Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment consistent with his education and work history from October 1, 2006.

2. At no point during the appeal period did the Veteran's service-connected venereal warts cover 40 percent of the entire body or exposed areas; or require constant or near constant systemic therapy.

CONCLUSIONS OF LAW

1. The criteria for a TDIU, from October 1, 2006, have been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.340, 3.341, 4.15, 4.16, 4.19.

2. The criteria for an initial disability rating in excess of 30 percent for venereal warts have not been met. 38 U.S.C. �� 1155, 5107(b); 38 C.F.R. �� 3.102, 4.1, 4.3, 4.7, 4.118.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from November 1968 to June 1970, with additional service in the National Guard.

These matters come before the Board of Veterans' Appeal (Board) on appeal from rating decisions issued in November 2002 and April 2008 by the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi.

These matters were previously before the Board in August 2003, November 2006, October 2009, January 2012, June 2015, May 2017 and October 2020, at which times they were denied, remanded and/or stayed pending further development. The Veteran also appealed the claim regarding a rating for venereal warts to the United States Court of Appeals for Veterans Claims (Court) twice, which subsequently issued Memorandum Decisions in October 2008 and April 2011, remanding the claim to the Board.

The Board now finds that all necessary development has been performed in relation to its remands, such that further appellate review is appropriate. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); see also Stegall v. West, 11 Vet. App. 268 (1998).

TDIU

A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. �� 3.340, 3.341, 4.16(a).

In its October 2020 decision, the Board granted TDIU based on the combined effects of the Veteran's service-connected disabilities, finding that his depression, prostate cancer and left leg edema prevented him from working as of August 25, 2008. The Board was constrained from granting an earlier date due to the fact that the Veteran's combined disability rating did not meet the schedular threshold for TDIU. That is, because the Veteran sought TDIU for two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. �� 3.340, 3.341, 4.16(a). At the time of the October 2020 decision, the Veteran did not have a service-connected disability at 40 percent or greater or a total combined disability rating of 70 percent.

Thus, the TDIU claim was remanded for submission to the Director, Compensation Services, for extraschedular consideration. 38 C.F.R. � 4.16(b); see Bowling v. Principi, 15 Vet. App. 1, 10 (2001); Wages v. McDonald, 27 Vet. App. 233, 236 (2015)(the Board may not assign an extraschedular TDIU in the first instance). At the same time, the Board remanded the Veteran's claim of entitlement to a compensable disability rating for service-connected venereal warts to allow for an examination and readjudication.

In a December 2021 memorandum, the Director denied TDIU on an extraschedular basis. However, the Board notes that in a July 2021 rating decision the Veteran was granted a 30 percent rating for venereal warts, effective August 30, 2002. Based on that new rating, the Veteran's combined disability rating is now 90 percent prior to August 25, 2008. Therefore, he meets the schedular criteria for TDIU prior to August 25, 2008, and the TDIU claim is no longer considered extraschedular, rendering the December 2021 memorandum from the Director moot. Wages, supra.

As explained in detail in its October 2020 decision, the Veteran's service-connected disabilities have prevented him from working throughout the appeal period. As this includes the period prior to August 25, 2008, during which the Veteran now meets the schedular criteria for such, a TDIU from October 1, 2006 is warranted. The claim is granted.

Increased Rating

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. � 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. � 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. � 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. � 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. � 4.7.

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id.

The Veteran generally contends that he is entitled to a higher rating for service-connected venereal warts.

VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. 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. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Here, although both versions of the rating criteria will be discussed, the Board finds that the pre-August 13, 2018 criteria are more favorable to the Veteran.

Prior to August 13, 2018, Diagnostic Code 7813, instructed to rate as disfigurement of the face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (7806) depending on the predominant disability. 38 C.F.R. � 4.118, Diagnostic Code 7813. Here, the Veteran's venereal warts do not affect the face or neck, nor is there any indication that there is resultant scarring. Therefore, the Board finds that Diagnostic Code 7806 is the most appropriate code under which to rate the disability.

Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and no more than topical therapy required during the past 12 months.

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. 38 C.F.R. � 4.118, Diagnostic Code 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, a new General Rating Formula for the Skin applies to Diagnostic Codes 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; 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. The regulations also indicate, as noted supra, that such a condition could be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. � 4.118, General Rating for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824.

Under the new criteria, a note preceding 38 C.F.R. � 4.118 provides that, for the purposes of this section, systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin.

With regard to the meaning of "systemic therapy" prior to the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted "systemic therapy" within the meaning of Diagnostic Code 7806. However, in Johnson v. Shulkin, 862 F.3d 1351, 1356 (2017), the Federal Circuit reversed this decision and determined that "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs" under Diagnostic Code 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found that "systemic therapy" means "treatment pertaining to or affecting the body as a whole," whereas topical therapy means "treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied." Johnson, 862 F.3d at 1355.

Thus, in a given case, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances. The Court has since held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: (1) the method by which the treatment works and (2) its side effects. See Burton v. Wilkie, 30 Vet. App. 286, 289-93 (2018).

A December 2002 treatment note shows the Veteran was prescribed Aldara cream for treatment of his venereal warts. He was instructed to apply the medication 3 times per week.

In January 2006, the Veteran underwent a skin disease examination at VA. At that time, he reported that his condition was dormant from service until a few years prior, and that he continued to treat his warts with cream. Although they were not active at the time of the examination, he continued to use the cream, and had no pain, flare-ups, progression of the condition, or functional disability due to such. Examination showed no scarring, pigmentation problems, lesions, rash, crusting, scaling, inflammation or disfigurement.

The record is otherwise silent regarding the Veteran's disability until March 2012, at which time he underwent another VA skin examination. At that time, the examiner reviewed the January 2006 examination report with the Veteran, who reported no change in the condition since that time. The Veteran explained that he had not used the Aldara cream for the past 2 years, as he experienced no flare-ups of the condition. The examiner concluded that the Veteran's disability required intermittent therapy in the past, which was topical in nature. He noted that the maximum duration of therapy for Aldara is 16 weeks. The Veteran was not using this, or any other, topical medication for his condition, nor had he developed any complications. The examiner noted that "in no way" could topical Aldara be construed as representing systemic therapy.

In contrast, in June 2021 and in response to the Board's October 2020 remand, a VA examiner concluded that the Veteran's use of Aldara constituted systemic therapy in that it was of sufficient scale to affect the body as a whole. She explained that Aldara was similar to corticosteroids or other immunosuppressive drugs, in that its use modified immune responses in the body and, thus, is an immunosuppressive drug. On examination, she noted that the condition was treated with such medications, topically, for 6 weeks or more per year, but not on a constant basis.

Based on this evidence, the Board finds that a rating in excess of 30 percent under the pre-August 13, 2018, regulations is not warranted. While the Veteran treats his symptoms with Aldara, found by the June 2021 examiner to be a systemic therapy akin to immunosuppressive drugs, the cream is not used constantly during any 12-month period and thus satisfies the criteria for a 30 percent rating. A 60 percent rating is assigned only when there is a constant or near-constant systemic therapy such as corticosteroids during a 12-month period, which is clearly not shown by the evidence here to have occurred at any time during the lengthy appeal period.

Moreover, the Board finds that the evidence is persuasively against the assignment of a rating in excess of 30 percent under the post-August 13, 2018, regulations because the Veteran's venereal warts do not more nearly approximate characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy required over the past 12-month period. Instead, the evidence clearly shows that the Veteran's use of Aldara is on an as-needed basis, and that he often goes for years at a time without using the cream. Therefore, a higher rating is clearly not warranted.

The evidence also does not show that the Veteran's venereal warts are predominantly manifested by scarring or by disfigurement to warrant a higher disability rating under any other Diagnostic Codes available under 38 C.F.R. � 4.118 for assessing scars, as these codes require a showing of symptomatology not present in the Veteran's case. There are no medical findings of disfigurement of the head, face, or neck. There is also no evidence of tender, deep, unstable, or painful scars, limitation of motion due to scars, or scars covering an area of 144 square inches. Thus, Diagnostic Codes for rating these manifestations are not for application. See 38 C.F.R. � 4.118 Diagnostic Codes 7800, 7801, 7802, 7803, 7804, 7805. In so finding, the Board notes that in his April 2003 substantive appeal, the Veteran described having a scar on his genitals due to his service-connected venereal warts. However, this is the only mention of such and subsequent examination has shown that no such scar exists.

In reaching the foregoing determinations, the Board recognizes the Veteran's sincerely held belief that his venereal warts are more severe than as reflected by the currently assigned rating, and notes he is competent to describe his symptoms and their effects on his daily life. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds the medical evidence in which professionals with medical expertise examined the Veteran, completed necessary testing, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own report regarding the severity of such condition.

The Board has considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected venereal warts; however, the Board finds that his symptomatology had been stable throughout the appeal. Therefore, assigning additional staged ratings is not warranted. The Board has also considered whether any other Diagnostic Codes related to non-scarring disabilities of the skin would provide for a higher disability evaluation during each period on appeal. However, the evidence does not reflect that he would warrant a higher rating during either period under a different Diagnostic Code. See 38 C.F.R. � 4.118.

Accordingly, the evidence is persuasively against a rating in excess of 30 percent for service-connected venereal warts. As there is not an approximate balance of positive and negative evidence, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The claim is denied.

R. FEINBERG

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jeremy J. Olsen, 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.


judge_norm: MICHAEL E KILCOYNE

text:
Citation Nr: 22023000
Decision Date: 04/19/22	Archive Date: 04/19/22

DOCKET NO. 18-00 774
DATE: April 19, 2022

REMANDED

Entitlement to an initial compensable rating for pseudofolliculitis barbae is remanded.

REASONS FOR REMAND

The Veteran served on active duty from April 1986 to April 2012.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in December 2021.  A transcript of the hearing is in the Veteran's file.

Entitlement to an initial compensable rating for pseudofolliculitis barbae is remanded.

The Veteran was afforded a VA examination in October 2012 for his service connected pseudofolliculitis barbae. At the time, it was described as present on the back, neck, and arms.  The Veteran testified that he has not shaved since retirement from service in 2012 and his pseudofolliculitis barbae has manifested in bumps and scars under his beard, which he contends is 50 percent of his face. Remand is warranted for a new VA examination to assess the current severity of the Veteran's pseudofolliculitis barbae, to include any associated scarring.

The matters are REMANDED for the following action:

1. Obtain outstanding VA treatment records and associate them with the claims file.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected pseudofolliculitis barbae. The examiner is asked to perform the following tasks:

a.	Provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.

b.	  Complete a separate scar disability benefits questionnaire (DBQ) for the Veteran's pseudofolliculitis barbae.

(Continued on the next page)

3. After any further development as may become indicated has been accomplished, readjudicate the issue on appeal.

MICHAEL E. KILCOYNE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Jaigirdar, Associate 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.


judge_norm: THERESA M CATINO

condition: gi

text:
Citation Nr: 22024000
Decision Date: 04/25/22	Archive Date: 04/25/22

DOCKET NO. 16-61 750
DATE: April 25, 2022

ORDER

An initial rating of 30 percent, but no higher, for the service-connected gastroesophageal reflux disease (GERD) with hiatal hernia and status post cholecystectomy is granted for the entire period on appeal, subject to the laws and regulations governing the award of monetary benefits.

An initial rating of 50 percent, but no higher, for the service-connected migraines is granted for the entire period on appeal, subject to the laws and regulations governing the award of monetary benefits.

FINDINGS OF FACT

1. Resolving any reasonable doubt in the Veteran's favor, her service-connected GERD with hiatal hernia and status post cholecystectomy has been manifested by no worse than dysphagia, pyrosis, regurgitation, and chest pain throughout the period on appeal. There is no evidence that her symptoms have included vomiting, material weight loss, hematemesis, melena, or other symptom combinations productive of severe impairment of health.

2. Throughout the period on appeal, the Veteran's service-connected migraines have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

CONCLUSIONS OF LAW

1. The criteria for an initial rating of 30 percent, but no higher, for the service-connected GERD with hiatal hernia and status post cholecystectomy have been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.102, 4.1, 4.3, 4.7, 4.20, 4.27, 4.114, Diagnostic Code (DC) 7346.

2. The criteria for an initial rating of 50 percent, but no higher, for the service-connected migraines have been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1994 to November 2014.

In December 2021, the Board of Veterans Appeals (Board) remanded this appeal for further evidentiary development.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. � 1155; 38 C.F.R. � 4.1.

A veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. � 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. � 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. � 4.3.

GERD with hiatal hernia and status post cholecystectomy

Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. 38 C.F.R. � 4.27. Here, the Veteran's specific disability is not listed in the Rating Schedule. When VA's Rating Schedule does not list the specific disability being rated, the disability is rated under a closely related disease or injury in which the functions affected, the anatomical localization, and the symptomatology are analogous. 38 C.F.R. � 4.20. Disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and "99." 38 C.F.R. � 4.27.

Under DC 7346, a 10 percent rating is assigned when two or more of the symptoms required for a 30 percent rating are present but are of less severity. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, arm, or shoulder pain, and is productive of considerable impairment of health. The maximum rating of 60 percent is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. 38 C.F.R. � 4.114, DC 7346.

In the current appeal, the Veteran contends that she is entitled to a higher disability rating for her service-connected GERD with hiatal hernia and status post cholecystectomy.  (This disorder is currently evaluated as 10 percent disabling from December 1, 2014, under DCs 7399-7346.)

In January 2014, the Veteran underwent a VA examination. At that time, she reported experiencing dysphagia, pyrosis (heartburn), reflux, and nausea. No other pertinent physical findings were noted. Then, pursuant to the December 2021 Board remand, the Veteran underwent another VA examination in January 2022. At this most recent examination, she described pyrosis, reflux, regurgitation, and substernal pain. No other pertinent physical findings were noted.

There are no other medical treatment records associated with the claims file that indicate that the Veteran's symptoms were more severe than those exhibited at the January 2014 and January 2022 VA examinations. In fact, review of her VA treatment records show that she has consistently reported experiencing dysphagia, pyrosis, regurgitation, and chest pain throughout the period on appeal.

Given the above, the Board finds that there is evidence in favor of both a 10 percent rating and a 30 percent rating for the Veteran's service-connected GERD with hiatal hernia and status post cholecystectomy. As noted above, when two ratings 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 rating will be assigned. 38 C.F.R. � 4.7. Here, the Board finds that the Veteran's disability picture more nearly approximates the criteria for a 30 percent rating, as her symptoms includes dysphagia, pyrosis, regurgitation and substernal (chest) pain.

Further, there is no evidence to show that the Veteran has experienced material weight loss, hematemesis, melena, or any other symptom combinations productive of severe health impairment, which would support the next higher rating of 60 percent for this disability. Accordingly, in resolving all reasonable doubt in her favor, a rating of 30 percent, but no higher, for her service-connected GERD with hiatal hernia and status post cholecystectomy is granted for the entirety of the appeal period.

Migraines

Under DC 8100, a 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. � 4.124a.

Neither the rating criteria nor the United States Court of Appeals for Veterans Claims (Court) has defined the term "prostrating." "Prostration" is defined as extreme exhaustion or powerlessness. See Dorland's Illustrated Medical dictionary (30th ed. 2003). Also, the term "productive of severe economic adaptability" has not been clearly defined by the rating criteria or the Court. Rather, the Court has noted that "productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Headaches need not actually "produce" severe economic inadaptability to warrant a 50 percent rating. Id. at 445-46.

Further, "economic inadaptability" does not mean unemployability, as that would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability. Id. at 446; see also 38 C.F.R. � 4.16. Rather, the term "severe economic inadaptability" refers to a great degree of inability in adjusting to the environment of an economic marketplace. See Merriam-Webster definitions of "inadaptability;" "adaptation;" "severe;" and "economic."

In the current appeal, the Veteran seeks a higher disability rating for her migraine disability, which is currently evaluated as noncompensably disabling from December 1, 2014; 30 percent disabling from May 10, 2021; and 50 percent from December 9, 2021 under DC 8100. In January 2014, she underwent a VA examination. At that time, she reported that, when her migraine disability onset, she had headaches approximately four times a week but that her migraines are now managed with medication. She described her headache pain as pulsating or throbbing head pain on both sides of her head, accompanied by nausea, vomiting, sensitivity to light and sound, and changes in vision. The examiner determined that the Veteran has characteristics of prostrating attacks of migraine headache pain less than once every two months. There were no other pertinent physical findings noted, and the examiner indicated that the Veteran's migraine disability does not impact her ability to work.

Pursuant to the December 2021 Board remand, the Veteran underwent another VA examination in January 2022. At that time, she described her headache pain as pulsating or throbbing pain on both sides of her head, accompanied by nausea, sensitivity to light, and dizziness. She explained that, when she experiences headaches, she has to go to a dark room and rest. The examiner determined that the Veteran has characteristics of prostrating attacks of migraine headache pain and that she has very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. There were no other pertinent physical findings noted, and the examiner found that the Veteran's migraine disability does impact her ability to work.

There are no other medical treatment records associated with the claims file that indicate that the Veteran's headache symptoms are more severe than those exhibited at the January 2022 VA examination. As for the January 2014 VA examination, the Board affords it little, if any, probative value, as it is unclear to the Board whether the examiner considered the ameliorative effects of the Veteran's medication when assessing the severity of her migraine disability. See Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992) (finding the Board is free to assess medical evidence and is not compelled to accept a medical opinion).

In the January 2014 VA examination report, the examiner indicated that the Veteran only experienced prostrating attacks of migraine headache pain once every two months. It is unclear to the Board what this number is based on, as the Veteran reported that prior to medication, she was experiencing migraine headaches approximately four times a week. Further, review of her VA treatment records show that she has consistently reported that, without medication, she experiences migraine headaches nearly every day. VA may not consider the ameliorative effects of medication, whether prescription or over the counter, unless such effects are explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56 (2012). DC 8100 does not take into account the ameliorative effects of medication. Thus, the ameliorative effects of the Veteran's medications should be excluded from consideration when assessing the severity of her disability.

As such, the Board finds that the probative evidence of record supports a finding that a rating of 50 percent, but no higher, is warranted for the Veteran's service-connected migraine disability for the entire period on appeal. A 50 percent disability rating is the highest schedular evaluation available under DC 8100. A higher rating would only be available on an extraschedular basis. Neither the Veteran, nor her representative, has provided evidence or argument as to why a rating higher than the maximum schedular rating is warranted in this case.

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Accordingly, a rating of 50 percent, but no higher, for the service-connected migraine disability is granted for the entire period on appeal.

THERESA M. CATINO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Benson, Associate 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.