judge_norm: J B FREEMAN

condition: respiratory

text:
Citation Nr: 24029000
Decision Date: 08/15/24	Archive Date: 08/15/24

DOCKET NO. 15-40 889
DATE: August 15, 2024

ORDER

Entitlement to an initial compensable rating for service-connected allergic rhinitis prior to April 8, 2022, is denied.

FINDING OF FACT

Prior to April 8, 2022, the Veteran's service-connected allergic rhinitis did not involve polyps or greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side and did not undergo a factually ascertainable increase so as to approximate greater than 50-percent obstruction of nasal passage on both sides.

CONCLUSION OF LAW

The criteria for entitlement to an initial compensable rating for service-connected allergic rhinitis prior to April 8, 2022, are not met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6122.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1992 to October 1999.

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

The Board most recently issued a decision as to this matter in July 2022, denying entitlement to an initial compensable rating prior to April 8, 2022, and a rating higher than 10 percent thereafter. The Veteran subsequently appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). Per a memorandum decision issued by the Court in January 2024, the Board's denial of an initial compensable rating was vacated and the matter was remanded for readjudication, and the Board's denial of a rating higher than 10 percent from April 8, 2022 was dismissed. Accordingly, the Board has jurisdiction to consider only the period prior to April 8, 2022.

Discussion

The Veteran seeks an initial compensable rating for his service-connected allergic rhinitis prior to April 8, 2022, which is rated under 38 C.F.R. � 4.97, Diagnostic Code 6522.

Under Diagnostic Code 6522, a 10 percent rating is warranted for allergic or vasomotor rhinitis without polyps but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side, and a 20 percent rating is warranted for allergic or vasomotor rhinitis with polyps.

The Veteran was afforded VA examinations to assess the nature and severity of his service-connected allergic rhinitis in March 2007, August 2008, December 2011, November 2014, April 2019, and April 2022.

At the March 2007 VA examination, the Veteran reported then-currently experiencing symptoms of nasal obstruction and nasal drainage, and he indicated that he took an antihistamine to help control his symptoms of nasal stuffiness. Physical examination revealed minimal swelling involving the inferior turbinates, a small septal spur on the right side inferiorly that did not create a problem with nasal obstruction, the nasal airway appearing wide open and patent with no significant evidence of nasal obstruction, and no nasal polyps, but the Veteran exhibited collapse of the internal nasal valves on forced inspiration. The examiner documented that he seemed to have significant complaints regarding, in part, nasal obstruction, but his subjective complaints seemed out of proportion to the physical findings of the ear, nose, and throat examination.

At the August 2008 VA examination, the Veteran complained of nasal congestion and drainage, and he indicated that he took Afrin, Sudafed, Flonase, and Clarinex for treatment. Physical examination revealed minimal swelling involving the inferior turbinates, the same small septal spur as previously noted that did not affect his nasal airway, an essentially straight nasal septum, a very patent nasal airway with no significant evidence of nasal obstruction present, and no nasal polyps, but the Veteran again exhibited collapse of the internal nasal valves on forced inspiration. The examiner stated that he had nothing to add other than what was said in his prior March 2007 VA examination, and it appeared that little, if any, change occurred subsequent to that time.

At the December 2011 VA examination, the Veteran reported, in part, taking a combination of Flonase and Astepro for five years prior. The examiner marked that he did not have greater than 50 percent obstruction of the nasal passage on both sides or one side due to rhinitis or septal deviation, permanent hypertrophy of the nasal turbinates, or nasal polyps. The examiner further marked that his condition did not impact his ability to work. In the remarks section of the examination report, the examiner stated that he had a history of mild allergic rhinitis "that would appear under excellent control with Flonase and Astepro nasal sprays." The examiner noted that he did not have significant nasal septal deviation or mucosal edema on anterior rhinoscopy or nasal endoscopy, and the nasal endoscopy conducted on the date of the exam revealed bilateral widely patent nasal cavities without zero percent nasal obstruction involving each nasal cavity and no pus or polyps present.

At the November 2014 VA examination, the Veteran reported experiencing, in part, congestion and pressure in his nose and indicated that he used Nasacort and saline as needed. The examiner marked that he did not have greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side due to rhinitis, permanent hypertrophy of the nasal turbinates, or nasal polyps. The examiner separately specifically stated that he saw no nasal obstruction bilaterally on examination and marked that his condition did not impact his ability to work.

At the April 2019 VA examination, the Veteran reported described his chronic sinusitis and allergic rhinitis conditions as progressively worsening and involving daily symptoms, and he indicated that he took Olopatadine, Flonase, Singulair, and saline rinse for treatment. The examiner marked that he did not have greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side due to rhinitis, permanent hypertrophy of the nasal turbinates, or nasal polyps. The examiner did not address whether he had greater than 50 percent obstruction of the nasal passage on both sides or one side due to traumatic septal deviation. The examiner noted that the Veteran reported having multiple CT scans and an endoscopy performed but the results did not appear to be of record, and so the examiner stated that it would be helpful for the results to be provided for a more consistent and thorough examination. As for functional impact, the examiner documented the Veteran's report of often receiving treatment for sinusitis and allergic rhinitis if he is unable to breathe, getting headaches due to pain from both conditions requiring him to leave to go home and lay down, and losing one to two weeks of work time in the 12 months prior.

Per a March 2020 VA opinion, an examiner noted review of the claims file and opined that the Veteran's nasal septal deviation would have at least as likely as not led to nasal obstruction prior to the nasal septoplasty surgery in May 1997. The examiner reasoned that while there was acute nasal swelling and obstruction at the May to June 1997 examinations, there is no objective evidence that the nasal septoplasty led to any chronic nasal congestion. The examiner stated that any subsequent nasal congestion would be at least as likely as not due to chronic allergic rhinitis, which has no medical nexus to nasal septoplasty surgery.

Per the April 2022 VA examination, the Veteran reported constantly feeling like he was sick, which had gotten worse over the years, and he indicated that his symptoms were not well-managed on his current regimen. He described his symptoms as including daily pain and pressure along his sinuses, runny nose, discharge from his eyes, and congestion and drainage alternating from his ears, and he indicated that his treatment included Montelukast, Fluticasone, and Tobramycin/Dexamethasone. The examiner marked that he had greater than 50 percent obstruction of his nasal passage on both sides due to rhinitis and permanent hypertrophy off the nasal turbinates but did not have nasal polyps. As to functional impact, the examiner noted, in part, that he had been forced to take paid-time off when ill with symptoms and his conditions caused him to be frequently sleepy during the daytime while at work due to not sleeping well due to impaired breathing.

The January 2024 memorandum decision from the Court required the Board to make necessary factual findings as to the Veteran's contentions that the Board failed to address potentially favorable evidence, accepted the April 8, 2022 staged rating effective date without making findings as to when his increased level of disability became ascertainable, and failed to discuss the import (if any) of the reports that his condition progressively worsened, he had "symptoms of nasal obstruction and nasal drainage," his condition interfered with his ability to work, and his condition caused impaired breathing.

The Board acknowledges that, per the June 2023 Appellant's Brief submitted by the Veteran's representative in the course of his appeal of the July 2022 Board decision, the representative described the March 2007 and April 2019 VA examinations as "categorically dismissed by the Board," with the former being inadequate and the latter being incomplete; however, the Board only previously found the April 2007 VA examination inadequate as to the examiner's service connection opinion, and at no point did the Board suggest that the observations and objective findings contained in the examination report rendered the record of the present level of disability inadequate. Further, at no point did the Board describe the April 2019 VA examination as incomplete; instead, the Board merely noted that the examiner could not locate particular records identified by the Veteran and found that an addendum opinion was warranted to address the outstanding records. The Board finds that the observations and objective findings contained in each of the above-detailed VA examinations retain probative value.

The Veteran's private treatment records are associated with the claims file and document intermittent complaints of symptoms related to his service-connected allergic rhinitis during the appeal period; however, these records do not document that a provider ever observed greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side due to rhinitis. Rather, where, addressed, his providers observed his nares (i.e., openings of the nose or nasal cavity) as patent (i.e., affording free passage, unobstructed). See December 2015 Dr. B.H. Treatment Note; April 2019 Dr. M.W. Treatment Note; see also Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/nares, https://www.merriam-webster.com/dictionary/patent. While, between March 2017 and April 2019, he received recurring treatment at an allergy ear-nose-throat clinic and records of such document constant usage of nasal spray and allergy medication, continued issues with nasal drainage, and trouble breathing through the right side of his nose, at no point did his provider at this clinic observe or otherwise suggest that either or both nasal passages were completely or greater than 50 percent obstructed. See, generally, March 2017 to April 2019 Dr. M.W. Treatment Notes. The Board acknowledges that this provider observed nasal septum deviation to the right on physical examination, but, again, there is no competent indication or observation that that either or both nasal passages were completely or greater than 50 percent obstructed.

The Board has considered the Veteran's lay statements. In June 2008, at a Decision Review Officer (DRO) hearing, he testified as to experiencing, in part, discharge from his nose such that he was "blocked and clogged probably a few times a week" and had to take Afrin to clear it up three or four times per week. He further testified that he especially used Afrin at night when he sometimes got to the point that he could not breathe. See June 2008 Hearing Testimony. In November 2015, he reported that his allergic rhinitis had worsened. See November 2015 VA Form 9.

As to the Veteran's statements detailing his perceived symptomatology and resultant impairment from his service-connected allergic rhinitis, as partially contained in the above-summarized examinations and treatment records and at the June 2008 DRO Hearing, the Board notes that there is no evidence to suggest that he possesses the requisite medical training, expertise, or credentials needed to determine the severity of this disability, and so he is not competent to attest to such. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). While he is certainly competent to report the onset, frequency, and ongoing existence of certain symptoms of allergic rhinitis, such as feelings of stuffiness or blockage of his nasal passage, as those observations come to him through his senses, he is not competent to determine that his allergic rhinitis specifically involved greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. The extent of obstruction of a nasal passage requires diagnostic observation and/or testing by a medical professional, and the degree of obstruction of the nasal passage, which is internal to the body, is not readily observable from a lay perspective. Accordingly, while the Board does not doubt the sincerity of the Veteran's statements as to his perceived severity of his service-connected allergic rhinitis prior to April 8, 2022, as he was/is not able to personally observe any obstruction of his nasal passage and there is no indication that he possesses the requisite medical training, expertise, or credentials needed to determine the severity of this disability, the Board affords no probative weight to his statements relating to the severity of his allergic rhinitis.

After review of the lay and medical evidence, the Board finds that an initial compensable rating prior to April 8, 2022, is not warranted. While the Board does not doubt the sincerity of the Veteran's statements as to the extent of his symptoms and the impact of those symptoms on his life prior to April 8, 2022, there is no competent evidence demonstrating that his allergic rhinitis involved polyps or greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side at any point since the effective date of service connection but prior to April 8, 2022. As discussed above, across all VA examinations conducted prior to April 2022, VA examiners either expressly observed his nasal airway as wide open and patent with no significant evidence of nasal obstruction or otherwise marked that he did not have greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side due to rhinitis. The March 2007 VA examiner stated that his significant complaints regarding, in part, nasal obstruction, seemed out of proportion to the physical findings noted on examination, and the December 2011 VA examiner described his history of mild allergic rhinitis as appearing under excellent control with nasal sprays. Where addressed in his private treatment records, his private providers similarly observed his nostrils as open/unobstructed.

Again, the Board recognizes that the Veteran reported experiencing symptoms related to his allergic rhinitis, such as nasal blockage and/or clogging, sleep impairment, and trouble breathing, and he indicated that he regularly managed this disability with antihistamines, nasal spray, and other allergy medication. However, this reported symptomatology and treatment, either considered alone or in tandem with evidence prior to April 8, 2022, does not and cannot establish that he had greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side as required for a compensable rating under Diagnostic Code 6522 absent pure speculation. The competent evidence of record as to obstruction, which is based on examiners expert observations of his nasal passage, contemporaneously established that, regardless of his subjectively-reported symptomatology, his nasal passage remained open and obstructed upon each physical examination between March 2007 and April 2019.

The Board acknowledges the March 2020 VA examiner's opinion, as detailed above, that the Veteran's nasal septal deviation would have at least as likely as not led to nasal obstruction prior to nasal septoplasty; however, the Board notes that the portion of this opinion as to obstruction is entirely focused on the nature and severity of his condition prior to 1997 and this opinion does not suggest that his allergic rhinitis involved greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side at any point during the appeal period.

Separately, the Board acknowledges the Veteran's contentions of his service-connected allergic rhinitis impacting his earning capacity, in that, at the April 2019 VA examination, he reported missing one-to-two weeks of work time due to illness and needing to leave work to go home if he experienced a headache due to his allergic rhinitis, and at the April 2022 VA examination, he reported missing zero-to-one week of work and being forced to take paid time off when becoming ill with symptoms. The Board notes that his existing ratings for service-connected chronic sinusitis expressly contemplate episodes of sinusitis characterized, in part, by headaches, and so, to the extent he contends that his earning capacity is impacted by headaches, whether due to chronic sinusitis or allergic rhinitis, his existing rating already compensates for such. Further, to the extent he reported experiencing impaired sleep and contends that his impaired sleep caused him to be sleepy while at work, the Board notes that he has attributed his impaired sleep to various other disabilities, to include his service-connected gastroesophageal reflux disease and chronic sinusitis. See June 2008 Hearing Testimony; June 2013 Statement in Support of Claim. Regardless, the criteria for a compensable rating under Diagnostic Code 6522 do not relate to impaired sleep and are instead solely focused on the presence of either polyps or obstruction of the nasal passage due to allergic rhinitis. While the appreciates the Veteran's statements as to symptomatology, his statements as to impaired sleep, missing work-time due to illness from both his chronic sinusitis and allergic rhinitis, and needing to leave work due to headaches do not concern his level of nasal obstruction or the presence of polyps.

Finally, the Board finds that the Veteran's service-connected allergic rhinitis did not undergo a factually ascertainable increase in disability prior to April 8, 2022, such that his increased 10 percent rating based on greater than 50 percent obstruction of both nasal passages shall be effective prior to that date. In determining when an increase is "factually ascertainable," a date should not be assigned mechanically from the date of the examination, but from the date that the increase in disability was first factually ascertainable. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Here, while the Veteran reported that his condition progressively worsened and endorsed symptoms that he felt were attributable to nasal obstruction prior to April 8, 2022, there is no factually ascertainable evidence that his allergic rhinitis manifested with greater than 50 percent obstruction of both nasal passages prior to the date of the April 2022 VA examination. As discussed above, the Veteran is not competent to determine the severity of his allergic rhinitis in the context of the rating criteria for Diagnostic Code 6522, as he could not and cannot personally observe the degree of obstruction of his nasal passage and he does not possess the requisite medical training, expertise, or credentials needed to conduct and/or interpret testing or examination results related to such. The most recent competent evidence of record relating to the possibility of obstruction prior to April 8, 2022, is his private treatment record from April 2019, per which his private provider specifically described his nostrils as patent and did not document any particular degree of obstruction. While he may have experienced symptomatology suggestive of some level of obstruction prior to April 8, 2022, in that he endorsed feelings of clogging and trouble breathing through the ride side of his nose, there is no competent and probative evidence to suggest that he specifically experienced greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side, let alone any evidence that rises to the level of "factually ascertainable" evidence of such a manifestation.

The Board notes that, per the November 2023 Appellant's Reply Brief submitted by the Veteran's representative in the course of his appeal of the July 2022 Board decision, the representative expressly stated that he was not asking the Board to award an extraschedular rating or rate his rhinitis by analogy to another condition. Therefore, the Board need not engage in discussion of whether extraschedular consideration is warranted.

Based on the above, the Board finds that the Veteran's service-connected allergic rhinitis is best approximated by his existing non-compensable rating prior to April 8, 2022. His allergic rhinitis did not manifest with polyps or greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side prior to April 8, 2022. His allergic rhinitis similarly did not undergo a factually ascertainable increase so as to approximate greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side so as to warrant an effective date earlier than April 8, 2022, for his increased 10 percent rating, as awarded in the May 2022 rating decision.

J. B. FREEMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Tierno

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: J T HUTCHESON

judge_role: Veterans Law Judge

disposition: remanded

condition: back

text:
Citation Nr: 24030000
Decision Date: 09/11/24	Archive Date: 09/11/24

DOCKET NO. 16-50 123
DATE: September 11, 2024

REMANDED

Entitlement to service connection for a recurrent lumbar spine disability to include degenerative arthritis is remanded.

Entitlement to service connection for a recurrent sinus disability is remanded.

Entitlement to service connection for a recurrent sleep disability to include obstructive sleep apnea is remanded.

REASONS FOR REMAND

The Veteran had active service from February 1980 to February 1985.

Entitlement to service connection for a recurrent lumbar spine disability to include degenerative arthritis, a recurrent sinus disability, and a recurrent sleep disability to include obstructive sleep apnea is remanded.

Additional relevant Department of Veterans Affairs (VA) clinical documentation was submitted into the record after the issuance of the February 2024 supplemental statement of the case.  In July 2024, the Board of Veterans' Appeals (Board) notified the Veteran of the receipt of the additional VA clinical documentation and informed him of his right to waiver of initial review of the clinical documentation by the Agency of Original Jurisdiction.  In July 2024, the Veteran indicated that he wished the Agency of Original Jurisdiction to review the additional evidence.  The Board may not consider additional evidence without prior Agency of Original Jurisdiction review in the absence of a waiver of such review by the Veteran.

The matters are REMANDED for the following action:

Readjudicate the issues of service connection for a recurrent lumbar spine disability to include degenerative arthritis; a recurrent sinus disability; and a recurrent sleep disability to include obstructive sleep apnea.  If the benefits sought remains denied, the Veteran should be provided a supplemental statement of the case which addresses all relevant actions taken on the claims, to include a summary of the evidence considered, since the issuance of the supplemental statement of the case.  An appropriate period should be allowed for response before the case is returned to the Board.

J. T. HUTCHESON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Kuramoto, Justin U.

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 BISIGNANI

disposition: denied

text:
Citation Nr: 24031000
Decision Date: 09/24/24	Archive Date: 09/24/24

DOCKET NO. 20-24 644
DATE: September 24, 2024

ORDER

Entitlement to a rating in excess of 20 percent for thoracolumbar spine degenerative arthritis, status post fracture of the transverse process of 2nd lumbar vertebra is denied.

FINDING OF FACT

For the entire period of appeal, the Veteran's thoracolumbar spine degenerative arthritis, status post fracture of the transverse process of 2nd lumbar vertebra, manifested as forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees.

CONCLUSION OF LAW

The criteria for entitlement to a rating in excess of 20 percent for thoracolumbar spine degenerative arthritis, status post fracture of the transverse process of 2nd lumbar vertebra have not been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.304, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the Air Force from May 1969 to August 1969 and in the Army from  December 1990 to June 1991, September 1991 to December 1993, and April 1995 to September 1995.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).

The Board has previously considered and remanded this matter in January 2024. See January 2024 BVA Decision. The matter is now again before the Board.

1. Entitlement to a rating in excess of 20 percent for thoracolumbar spine degenerative arthritis, status post fracture of the transverse process of 2nd lumbar vertebra (thoracolumbar spine degenerative arthritis).

The Veteran contends that he is entitled to an evaluation in excess of 20 percent for his service-connected thoracolumbar spine degenerative arthritis.

A.	Legal Criteria

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. � 1155; 38 C.F.R. Ch. I, Part 4.  Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  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.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. � 4.3.

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).  When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed.  Hart, 21 Vet. App. at 509.

Schedular Ratings for Thoracolumbar Spine Degenerative Arthritis

The Veteran's service-connected lumbosacral strain is assigned a noncompensable rating from August 7, 1969 under 38 C.F.R. � 4.71a, DC 5299-5237, a 20 percent rating from June 2, 2017, under 38 C.F.R. � 4.71a, DC 5242 and a 20 percent rating under 5237 under 38 C.F.R. � 4.71a, DC 5237.  See August 2024 Rating Decision - Codesheet.  As this appeal concerns entitlement to a non-initial claim, the Board will only consider evidence submitted one year prior to the filing of the claim. 38 C.F.R. � 3.400 (o)(2).

Under 38 C.F.R. � 4.71a, DC 5237:

The criteria for rating disabilities of the spine are listed under Diagnostic Codes 5235 to 5243. All service-connected spine disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula).

Under the general rating formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. � 4.71a, Diagnostic Codes 5235-5243.

There are several notes set out after the diagnostic criteria, which provide the following: first, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code.

Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. 38 C.F.R. � 4.71a, Diagnostic Codes 5235-5243.

Note five provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine, is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. � 4.71a, Diagnostic Codes 5235-5243.

Note six provides that disabilities of the thoracolumbar and cervical spine segments shall be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. � 4.71a, Diagnostic Codes 5235-5243.

The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). However, Diagnostic Code 5237 is unchanged under the February 2021 criteria.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. � 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal exertion, strength, speed, coordination, or endurance." Id.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. � 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use, and therefore not be reflected on range-of-motion testing. 38 C.F.R. � 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).

B.	Facts

The Veteran was afforded five VA examinations of his thoracolumbar spine degenerative arthritis during the period of appeal. The first of these occurred in October 2017. See October 2017 C&P Exam. The examiner reviewed the claims file and examined the Veteran. Id at 1. The examiner noted that the Veteran reported daily flare-ups of back pain, which caused difficulty with prolonged periods of sitting, standing, and walking. Id at 2. The examiner tested the Veteran's active range of motion and the results are recorded below:

10/25/2017 VAX	Active ROM

Forward Flexion	60

Extension	30

Rt. Lateral Flexion	30

Lt. Lateral Flexion	30

Rt. Lateral Rotation	30

Lt. Lateral Rotation	30

See October 2017 C&P Exam 3.

The examiner noted pain on forward flexion that caused functional loss. The examiner tested the Veteran's range of motion after three repetitions and noted no additional loss. Id. The examiner did not estimate whether repetitive use over time causes the Veteran additional loss. Id at 4. The examiner also noted that the Veteran displays guarding or muscle spasm, but that it is not sufficient to result in abnormal gait or spinal contour. Id at 4. No ankylosis was noted, nor was any functional equivalent of ankylosis noted. Id at 6.

The Veteran's next examination occurred in September 2019. See September 2019 C&P Exam. The examiner reviewed the claims file and examined the Veteran. Id at 1. The Veteran reported at this examination that he no longer experienced flare-ups of his back. Id at 3. The examiner performed active range of motion testing and noted pain. Id. The examiner noted that the Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function. The examiner noted that repeated use over time caused the Veteran additional functional loss due to pain and estimated the additional loss of use in terms of range of motion. The examiner also noted additional loss in passive, non-weight bearing and estimated the loss in terms of range of motion. All of these test results are recorded below:

09/11/2019 VAX	Active ROM	Rep. Use ROM	Passive ROM

Forward Flexion	60	55	90

Extension	20	15	20

Rt. Lateral Flexion	30	25	30

Lt. Lateral Flexion	30	25	30

Rt. Lateral Rotation	30	25	30

Lt. Lateral Rotation	30	25	30

See September 2019 C&P Exam at 4.

The examiner noted no pain on weight bearing. Id at 4. The examiner further noted no guarding or muscle spasms and no ankylosis or the functional equivalent of ankylosis. Id at 6, 9.

The Veteran was next examined in April 2024. See April 2024 C&P Exam. The examiner reviewed the claims file and examined the Veteran. Id at 1. The examiner performed active range of motion testing and noted pain. Id at 3. The Veteran reported flare-ups at this examination, and the examiner estimated the effect of the flare-ups on the Veteran's range of motion. Id at 7. The Veteran also reported additional functional loss due to repetitive use over time and the examiner expressed the loss in terms of range of motion. Id at 7.

04/12/2024 VAX	Active ROM	Rep. Use ROM	Flare-up ROM

Forward Flexion	70	70	70

Extension	20	20	15

Rt. Lateral Flexion	20	20	15

Lt. Lateral Flexion	20	20	15

Rt. Lateral Rotation	15	15	15

Lt. Lateral Rotation	15	15	15

See April 2024 C&P Exam at 3, 6-7.

The examiner performed passive range of motion testing and noted that the results were the same as the Veteran's active range of motion and found evidence of pain in weight-bearing, active motion and passive motion that causes functional loss that include the inability to obtain full range of motion due to stiffness and pain. Id at 4. The examiner noted no additional functional loss after 3 repetitions. Id at 5. The examiner noted no ankylosis or the functional equivalent of ankylosis. Id at 10.

An additional examination was performed in May 2024. See May 2024. The examiner reviewed the claims file and examined the Veteran. Id at 1. The Veteran reported no flare-ups. Id at 2. The examiner tested the Veteran's active range of motion. The Veteran reported additional loss of range of motion after repetitive use over time. Both are recorded below:

05/29/2024 VAX	Active ROM	Rep. Use   ROM

Forward Flexion	65	55

Extension	25	20

Rt. Lateral Flexion	20	20

Lt. Lateral Flexion	20	20

Rt. Lateral Rotation	20	15

Lt. Lateral Rotation	20	15

See May 2024 C&P Exam at 3, 6.

The examiner tested the Veteran's range of motion after three repetitions and noted no additional functional loss. Id at 5. The examiner noted no guarding or muscle spasm. Id at 7. The examiner noted that passive range of motion testing was contraindicated but did not explain how or why. Id at 4. The examiner further noted no ankylosis or the functional equivalent of ankylosis. Id at 10.

Finally, the Veteran was afforded his most recent examination in June 2024. See July 2024 C&P Exam. The examiner reviewed the claims file and examined the Veteran. Id at 1. The examiner noted that the Veteran experiences flare-ups two times per month, and that they are "moderate," last approximately one hour, and occur if the Veteran twists his back a certain way. Id at 3. The Veteran reported functional loss as an inability to bend or lift. The examiner performed active range of motion testing and the results are recorded below:

06/27/2024 VAX	Active ROM

Forward Flexion	60

Extension	15

Rt. Lateral Flexion	15

Lt. Lateral Flexion	15

Rt. Lateral Rotation	15

Lt. Lateral Rotation	15

See July 2024 C&P Exam 3.

The examiner noted the Veteran experienced pain on range of motion testing. The examiner noted that the Veteran experienced no additional functional loss after 3 repetitions and that his active and passive ranges of motion are the same. Id at 5-6. The examiner noted no additional functional loss after repetitive use over time. Id at 6. No ankylosis was noted. Id at 11.

The Board has reviewed the Veteran's VA treatment records, which contain little information about the Veteran's low back condition. The Board notes that an October 2017 radiography report shows that at that time, the Veteran's spine exhibited mild degenerative changes in the lumbar spine, most pronounced at L4-L5. See March 2020 CAPRI at 144. The Veteran's treatment records also contain information about a cervical spine condition, but that condition is not service-connected and is not currently on appeal. See, e.g., August 2024 CAPRI at 310.

Private treatment records submitted by the Veteran contain no substantive descriptions of the Veteran's low back symptoms.

C.	Analysis

As discussed below, the Board finds that the weight of the probative evidence of record shows that throughout the period of appeal, the Veteran's service-connected thoracolumbar spine degenerative arthritis most closely approximated the rating criteria for a 20 percent evaluation.

Specifically, the Board notes that during his October 2017 VA examination, the Veteran's forward flexion was limited to 60 degrees. See supra Section B. The Veteran reported flare-ups, but no estimate of the Veteran's range of motion during the reported flare-ups appears in the report. However, the Board notes that the active range of motion testing in this examination does not show forward flexion of the thoracolumbar limited to 30 degrees. No ankylosis was noted. Id.

Next, the Board notes that at the Veteran's September 2019 VA examination, the examiner recorded range of motion tests or estimates for active range of motion, passive range of motion, and repetitive use over time range of motion. Id. None of these showed forward flexion of the thoracolumbar limited to 30 degrees. The Veteran denied flare-ups and no ankylosis was noted.

Next, at his April 2024 VA examination, the Veteran reported flare-ups. The examiner evaluated and recorded active range of motion and estimates for range of motion during flare ups and after repetitive use over time. Id. None of these showed forward flexion of the thoracolumbar limited to 30 degrees. No ankylosis was noted.

At his May 2024 VA examination, the Veteran again reported no flare ups. Id. The examiner recorded range of motion tests or estimates for active range of motion and range of motion after repetitive use over time. Id. None of these showed forward flexion of the thoracolumbar limited to 30 degrees. No ankylosis was noted.

Finally, at his June 2024 VA examination, forward flexion of the thoracolumbar spine limited to 30 degrees was not indicated and no ankylosis was noted. The Veteran reported flare-ups but the examiner did not provide range of motion estimates. Id at 2.

The Board finds that taken together, the examinations afforded to the Veteran in April, May, and June of 2024 contain sufficient range of motion testing to establish that the Veteran does not currently experience forward flexion of the thoracolumbar limited to 30 degrees in active or passive range of motion testing, during flare-ups, or after repeated use over time. Id. The Board further finds that none of the preceding examinations during the period of appeal show forward flexion of the thoracolumbar limited to 30 degrees. Id. The measurements of the VA examiners of record are not contradicted by any treatment records or lay statements provided by the Veteran. Accordingly, the Board assigns these examinations high probative weight.

The Board has considered whether the Veteran's symptoms approximate ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (holding that the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis). However, the evidence in this case does not show the functional equivalent of ankylosis, even when contemplating functional loss due to symptoms such as pain, fatigue, and lack of endurance; or due to repetitive use over time and/or flare-ups. None of the medical evidence suggests that the severity of the Veteran's service-connected back disability is the functional equivalent of ankylosis. Notably, the VA examinations and treatment records from the period on appeal demonstrate that the Veteran retained range of motion in his low back, even with repetitive use over time and during flare-ups. 38 C.F.R. � 38 C.F.R. �� 4.40, 4.45, 4.59; See DeLuca v. Brown, 8 Vet. App. Hence, even with these considerations, the record presents no basis for the assignment of a rating higher than 20 percent based on functional loss.

Thus, the weight of the competent and probative evidence does not support entitlement to an evaluation in excess of 20 percent disabling for service-connected thoracolumbar spine degenerative arthritis. Accordingly, the Veteran's claim is denied. In reaching these conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the weight of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. � 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

R. Bisignani

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Robert Divis, 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: KELLI A KORDICH

condition: skin

text:
Citation Nr: 24032000
Decision Date: 10/18/24	Archive Date: 10/18/24

DOCKET NO. 17-49 182
DATE: October 18, 2024

ORDER

Entitlement to an initial compensable rating for service-connected residuals of inguinal hernia repair is denied.

Entitlement to an initial compensable rating prior to November 12, 2019, and to a rating in excess of 10 percent thereafter for service-connected residual scar associated with residuals of hernia repair is denied.

FINDINGS OF FACT

1. The Veteran's service-connected residuals of an inguinal hernia repair are not manifested by a postoperative hernia, readily reducible and well-supported by truss or belt.

2. Prior to November 12, 2019, the Veteran's service-connected hernia scar was not unstable or painful.

3. As of November 12, 2019, the Veteran's service-connected hernia scar is painful.

CONCLUSIONS OF LAW

1. The criteria for an initial compensable rating for service-connected residuals of inguinal hernia repair have not been met. 38 U.S.C. � 1155, 5107; 38 C.F.R �� 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 7339.

2. The criteria for an initial compensable rating prior to November 12, 2019, and to a rating in excess of 10 percent thereafter for service-connected residual scar associated with residuals of hernia repair have not been met. 38 U.S.C. � 1155, 5107; 38 C.F.R �� 4.1, 4.3, 4.7, 4.126, 4.130, DC 7802.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active-duty service from May 1980 to May 1984.

The Veteran appeared before the undersigned Veterans Law Judge in a September 2021 Board hearing. A transcript of the hearing has been associated with the record.

The Board previously remanded the Veteran's claim in November 2023, pursuant to a Joint Motion for Remand approved by the United States Court of Appeals for Veterans Claims (Court). Specifically, the Board directed the Agency of Original Jurisdiction (AOJ) to make attempts to obtain potentially outstanding private, non-VA medical treatment records, and to provide the Veteran with a VA examination to determine the nature and severity of his scar disability.

A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the November 2023 remand, the Board finds that the AOJ conducted additional development as instructed, and that there has been substantial compliance with the remand directives.

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. � 1155; 38 C.F.R. � 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. � 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. � 4.3.

The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. � 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. Lynch v. McDonough, 21 F.4 th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the evidence persuasively weighs against a claim, the claim is denied.

1. Entitlement to an initial compensable rating for service-connected residuals of inguinal hernia repair

The Veteran contends that his service-connected hernia residuals warrant an initial compensable rating. See October 2024 Appellate Brief. Specifically, the Veteran alleges that hernia is painful and affects the mobility of his right hip.

As an initial matter, the record reflects that there may be outstanding private treatment records. In this regard, VA attempted to obtain the Veteran's private back treatment records and associate them with the claims file. See July 2023 BVA Post CAVC Notice; November 2023 Subsequent Development Letter; January 2024 Subsequent Development Letter. The Veteran has failed to respond to each request. Furthermore, in the time since VA has made attempts to obtain this outstanding evidence, the Veteran has filed two separate Appellate Briefs, in October 2023 and October 2024, without any reference to the private treatment records.

The duty to assist is not a one-way street, and a claimant cannot stand idle and fail to cooperate. Wood v. Derwinski, 1 Vet. App. 190 (1991). Here, the Board finds that the Veteran was given ample notification, and significant time, to provide the allegedly outstanding treatment records (or supply the AOJ with the necessary release forms for the information to be obtained on his behalf), and he failed to do so. Accordingly, the Board will proceed with adjudication with the evidence of record.

The Veteran's hernia disability is rated under 38 C.F.R. � 4.114, DC 7338. In order for a compensable disability rating to be warranted under DC 7338, the evidence must show a postoperative, recurrent inguinal hernia, readily reducible and well supported by truss or belt (10 percent), or a small, postoperative recurrent, or unoperated irremediable inguinal hernia, not well supported by truss, or not readily reducible (30 percent). 38 C.F.R. � 4.114, DC 7338.

In his November 2016 statement, the Veteran asserted that he had hernia residuals with pain.

VA examinations in March 2017, July 2022, and August 2022 all conclusively found that there is no evidence of a current hernia. Significantly, all the VA examiners also determined that there was no indication that the Veteran required a truss, belt, or other support to treat or manage his condition. During the course of these examinations the Veteran did report subjective symptoms of pain on movement and activity.

An August 2017 non-VA examination also supported the finding of the VA examiners, noting that the Veteran's hernia had been successfully repaired in 1984 and there was no need for support.

At a November 2019 statement, the Veteran claimed he had been told by his physician that the mesh used to repair his hernia had been recalled, and this caused the hernia to become unstable, painful, and impacted his range of motion.

The Veteran repeated these claims at his September 2021 Board hearing, alleging that he learned that the mesh used to repair his hernia was recalled from television commercials. The Veteran retracted his earlier, November 2019 statements, and explained that no medical professional told him his mesh was recalled. The Veteran also reported that he had to frequently use a belt.

An August 2022 addendum medical opinion from a VA practitioner acknowledged the Veteran's statements about needing to use belts, but that the Veteran was talking about a belt used to keep his pants up, and not a medical truss or other supportive device.

The Board finds that the objective, competent, and credible evidence of record shows that the Veteran does not have a current hernia, and that there is no medical need to treat his condition with supportive devices such as trusses or belts.

The Veteran is competent to provide testimony as to the symptoms he experiences, such as pain and discomfort on movement. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, as he is not a medical professional, he is not competent to provide evidence as to the diagnosis of his hernia residuals, or the status of the mesh used to repair his condition.

The Board is sympathetic to the Veteran's lay statements about the status of his condition, and those statements, particularly those indicating discomfort on movement, have been taken into consideration. However, the medical findings of the VA and non-VA examiners persuasively show that the Veteran has no current hernia that requires support from a belt or truss. Thus, a compensable rating for the Veteran's hernia residuals is not warranted.

In reaching this decision the Board has considered the doctrine of reasonable doubt. However, as the evidence is persuasively against the claim, and the positive and negative evidence is not in approximate balance, the doctrine is not applicable. Lynch v. McDonough, F.4 th 776 (Fed. Cir. 2021).

Accordingly, the criteria for an initial compensable rating for his service-connected residuals, inguinal hernia, have not been met, and the Veteran's claim is denied.

2. Entitlement to an initial compensable rating prior to November 12, 2019, and to a rating in excess of 10 percent thereafter for service-connected residual scar associated with residuals of hernia repair

The Veteran asserts that his service-connected scar disability warrants a compensable rating for the period prior to November 12, 2019, and a higher rating as that date. See October 2024 Appellate Brief. The Veteran contends that his scar has been painful, and impacts his ability to move. For the reasons addressed below, the Board finds that neither is warranted.

As an initial matter, in a July 2023 Appellate Brief the Veteran, through his representative, noted that he has private, non-VA medical records that would assist in the rating of his scar disability. However, as discussed above, the Veteran has been provided with ample opportunity to submit those medical records to the AOJ, and has failed to do so. Wood, supra. Therefore, the Board will adjudicate the Veteran's claim with the evidence of-record.

The Veteran's scar is rated under DC 7802. 38 C.F.R. � 4.118. DCs 7800 to 7805 pertain to scars.

The schedule of ratings for the skin was amended effective August 13, 2018. See 83 Fed. Reg. 32, 592 (July 13, 2018). Prior to August 13, 2018, the Board will consider the older version of the DCs, and as of that date, the Board will consider both the older and amended versions of the DCs. The Board will rate the Veteran's disability based on whichever schedule is more favorable to his claim.

DC 7800 applies to scars and disfigurement of the head, face, and neck, and thus is inapplicable to the present claim.

DC 7801 provides for a 10 percent disability evaluation for a scar that is not of the head, face, or neck, that is deep and nonlinear (old code) or associated with underlying soft tissue damage (amended code), and that has an area of at least 6 square inches (39 sq. cm.). Higher ratings are available if larger areas are affected. Under the old code, a "deep scar" is defined as one associated with underlying soft tissue damage. The old and amended codes also differ regarding instructions for totalling the area affected when there is more than one qualifying scar.

DC 7802 provides for a 10 percent disability evaluation for a scar not of the head, face, or neck, that is superficial and nonlinear (old code) or not associated with underlying soft tissue damage (amended code) and which covers an area of at least 144 square inches (929 sq. cm.) or more. No higher ratings are available under either version of this code. Under the old code, a "superficial scar" is defined as one not associated with underlying soft tissue damage. The old and amended codes also differ regarding instructions for totalling the area affected when there is more than one qualifying scar.

DC 7804 provides for a 10 percent disability evaluation for one or two scars that are unstable or painful. A 20 percent disability evaluation is assigned where there are three or four scars that are unstable or painful. A 30 percent disability evaluation is assigned where there are five or more scars that are unstable or painful. An unstable scar is one where there is frequent loss of skin covering over the scar. If one or more scars are both unstable and painful 10 percent is added to the evaluation.

Under the new and amended codes, pursuant to Diagnostic Code 7805, a scar may be rated on any disabling effect(s) not considered as part of Diagnostic Codes 7800 to 7804.

In his November 2016 statement, the Veteran claimed the scar was tender and he could not wear anything tight.

In March 2017 he was seen for a VA examination to determine the severity of his hernia disability. The examiner observed the Veteran's scar, and found no evidence of pain or instability. At the time, the Veteran's scar measured 6.5cm by .125cm.

In November 2017 the Veteran reported that his scar was painful and tender, and he could not wear anything right.

On November 12, 2019, a VA examiner found that the Veteran's scar was painful on palpation and with movement of the right hip. The scar measured 10cm by .5cm, and was not unstable.

At his September 2021 hearing, the Veteran reported that his scar was painful when it was pressed. The Veteran also claimed that the March 2017 VA examiner erred by finding no pain, as he (the Veteran) now claimed his scar hurt at that time.

In July 2022 the Veteran was seen for another VA examination, where it was noted that the Veteran's scar was painful. The scar measured 6.5cm by .25cm, and was not unstable.

The Board recognizes that, prior to the November 12, 2019, there is conflicting evidence as to whether or not the Veteran's scar was painful. In March 2017, a VA examiner found no evidence of pain relating to the scar, nor did the Veteran report any symptoms at the time. Contrarily, in November 2016 and November 2017 the Veteran reported pain relating to his scar.

The Board finds that the March 2017 VA examiner's findings to be more probative than the Veteran's November 2016 and November 2017 statements indicating pain relating to the scar, and the Veteran's September 2021 recantation of his March 2017 denial of pain. This is because the Veteran's statements made to the March 2017 examiner were for treatment purposes, while his November 2016, November 2017, and September 2021 statements were made for compensation purposes. Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (a Board decision properly assigned more probative value to treatment records that included lay history made for treatment purposes than to statements made for compensation purposes).

Finally, the Board recognizes that the argument put forward by the Veteran in his July 2023 Appellate Brief that Note (3) of DC 7804 allows for a compensable rating due to limitation of motion. The Board notes that this is an incorrect application of the rating schedule. Note (3) of DC 7804 merely states that scars to which DCs 7800, 7801, 7802, and 7805 apply can also be rated under DC 7804. A review of Notes (1) and (2) also shows that there is no consideration of limitation of motion under the relevant rating criteria.

DC 7805 allows for other disabling effects not considered by the appropriate rating criteria to be evaluated. However, the medical record shows that any limitation of movement is due to his hernia residuals, and not his scar. In November 2019, a VA examiner noted that the Veteran experienced pain inside his right hip on movement. Similarly, a July 2022 VA examination determined that the Veteran's hernia residuals worsened with activity. None of the VA examinations of the Veteran's scar showed evidence of limitation of movement. Thus, a separate rating under DC 7805 is not applicable.

It was not until November 12, 2019, that the evidence of record consistently, competently, and credibly shows evidence of pain relating to his scar. Thus, it on that date that there is a factually ascertainable increase in the Veteran's disability level.

In sum, prior to November 12, 2019, the evidence persuasively weighs against finding that the Veteran's service-connected scar, associated with hernia repair, as prior to that date the Veteran's scar was not productive of pain on palpation. However, as of November 12, 2019, the evidence shows that the Veteran's scar was productive of pain and tenderness. Under DC 7802, there is no higher evaluation available. A higher 20 percent rating under DC 7804 is not warranted as the Veteran does not have 3 or 4 service-connected scars that are painful and/or unstable. As discussed above, a separate rating under DC 7805 is not warranted.

In reaching this decision the Board has considered the doctrine of reasonable doubt. However, as the evidence is persuasively against the claim, and the positive and negative evidence is not in approximate balance, the doctrine is not applicable. Lynch v. McDonough, F.4 th 776 (Fed. Cir. 2021).

(Continued on the next page)

?

Accordingly, the Veteran's claims for an initial compensable rating for his service-connected scar prior to November 12, 2019, and in excess of 10 percent as of that date, are denied.

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Neville, Mikael

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: CYNTHIA M BRUCE

disposition: dismissed

disposition: granted

condition: psychiatric

text:
Citation Nr: 25001000
Decision Date: 01/24/25	Archive Date: 01/24/25

DOCKET NO. 16-38 110
DATE: January 24, 2025

ORDER

Entitlement to service connection for obstructive sleep apnea is dismissed.

Entitlement to service connection for an acquired psychiatric disability is granted.

FINDINGS OF FACT

1. In a September 2024 rating decision, service connection for obstructive sleep apnea was granted, resulting in a full grant of the benefit sought on appeal.

2. The Veteran has acquired psychiatric disorders that developed due to military sexual trauma.

CONCLUSIONS OF LAW

1. The criteria for dismissal of entitlement to service connection for obstructive sleep apnea have been met.  38 U.S.C. � 7105; 38 C.F.R. � 19.55.

2. The criteria for entitlement to service connection for an acquired psychiatric disorder due to military sexual trauma have been met. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June1968 to June 1970, and March 1971 to July 1987.

These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2013 and April 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A copy of the hearing transcript is associated with the claims file.

The claims were previously remanded by the Board in May 2020.The issues were denied by the Board in a May 2021 decision, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).

In September 2022, the Veteran's representative and VA General Counsel filed a joint motion for partial remand (JMPR) regarding the issues above. The Court granted the joint motion and remanded the claim to the Board for further consideration consistent with the JMPR. Therefore, the claims were remanded by the Board in March 2023 and in November 2023 to obtain new medical opinions.

Dismissal

1. Entitlement to service connection for obstructive sleep apnea is dismissed.

The claim of entitlement to service connection for obstructive sleep apnea was denied in an April 2015 rating decision. The issue was properly appealed to the Board and then to the Court, ultimately resulting in the most recent remand in November 2023 for additional evidentiary development. Subsequently, in September 2024, the RO granted entitlement to service connection for this disability. This is a full grant of benefits sought on appeal, and there is no case or controversy for the Board to adjudicate. Consequently, the claim is dismissed. 38 U.S.C. � 7105.

Service Connection

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

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. � 3.303 (d).

Establishing service connection for PTSD requires specific findings. These are (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. See 38 C.F.R. � 3.304 (f).

The term "military sexual trauma" refers to "psychological trauma, which in the judgment of a mental health professional employed by the Department, resulted from a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment which occurred while the Veteran was serving on active duty or active duty for training." 38 U.S.C. � 1720D (a)(1). Sexual harassment is defined as "repeated, unsolicited verbal or physical contact of a sexual nature which is threatening in character." 38 U.S.C. � 1720D (f).

For stressors unrelated to combat, credible supporting evidence is necessary in order to grant service connection. "Credible supporting evidence" of a noncombat stressor may be obtained from service records or other sources. Moreau v. Brown, 9 Vet. App. 389 (1996). The Court has held that the regulatory requirement for "credible supporting evidence" means that "the appellant's testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor." Dizoglio v. Brown, 9 Vet. App. 163 (1996). Therefore, the Veteran's lay testimony is insufficient, standing alone, to establish service connection. Cohen, 10 Vet. App. at 147 (citing Moreau, 9 Vet. App. at 395). Corroboration does not require corroboration of every detail, including the veteran's personal participation in the identifying process. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997).

If a PTSD claim is based on inservice personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. � 3.304 (f)(5).

Furthermore, unlike in other PTSD claims, in PTSD claims based on personal assault, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor. See Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) ("we hold that medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated'); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In fact, according to the special provisions of 38 C.F.R. � 3.304 (f)(5), VA may submit any evidence that it receives concerning the alleged military sexual trauma to an appropriate medical or mental health professional for an opinion as to whether the evidence indicates that a personal assault occurred.

1. Entitlement to service connection for an acquired psychiatric disorder is granted.

The Veteran seeks service connection for an acquired psychiatric disorder.

The Veteran's VA treatment records show a diagnosis of DSM-5 PTSD by a VA psychiatrist during the period on appeal in November 2024. A November 2024 VA examination report also shows he was diagnosed with unspecified trauma and stressor related disorder, and unspecified depressive disorder. The Veteran meets the requirement of a current diagnosis.

Therefore, the questions before the Board are (1) whether there is credible supporting evidence that the claimed in-service stressor occurred and (2) whether there is medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. � 3.304 (f).

The Veteran contends that service connection is warranted because the claimed psychiatric disorders were caused by an in-service sexual assault. In a February 2024 Statement in Support of Claim for PTSD, the Veteran shared that he was sexually assaulted multiple times while stationed in Germany in 1978 to 1979. He indicated he did not report these incidents due to shame and he feared for his life if he spoke about what occurred.

During VA examinations in January 2024 and November 2024, the Veteran reported that he was sexually abused on multiple occasions while stationed in Germany. He explained that the events occurred while either hitchhiking or walking home and involved German nationals. The Veteran further stated he likely was depressed while in service but did not seek treatment.

His service treatment and personnel records document an Article 15 proceeding due to the Veteran failing to obey an order in December 1981. In April 1983 a medical history report shows the Veteran marked "yes" for recent gain/loss of weight. The Veteran also reported having frequent trouble sleeping, nervous trouble, and depression/excessive worry in August 1986. He was later counseled on his performance in October 1986.

The Board finds that the Veteran's military records show that after the MSTs that occurred in 1978 and 1979, the Veteran's behavior changed, which aligns with his reports during his VA examinations that his depression began during service. As a result of the above, the Board finds that the Veteran's reported MST and subsequent lay statements indicate that an in-service personal assault occurred. The Board considers the Veteran's reports to be credible and finds no reason to doubt them. Thus, the final question is whether there is medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor.

Although the November 2024 VA examiner ultimately determined that the Veteran did not have a PTSD diagnosis, the Veteran's VA psychiatrist did find that he does have a PTSD diagnosis, as noted above. Further, the VA examiner determined that the Veteran has a diagnosis of unspecified trauma and stressor related disorder and opined 1) the evidence of record at least as likely as not is consistent with the occurrence of the MST stressor events, and 2) the Veteran's psychiatric disorders are at least as likely as not due to the Veteran's in service MST. In sum, the Veteran has established the final element of service connection, as there is a medical nexus opinion of record linking his psychiatric disorders to the in-service MST stressors.

The Board notes that the RO denied the claim in the November 2024 Supplemental Statement of the Case, stating that "[t]here is no provision for establishing the occurrence of a personal assault/MST event in service based only on a marker and the examiner's acceptance of the Veteran's lay statement of the event." However, there is no requirement that an alleged in-service stressor must be documented as proof of occurrence to establish service connection for any acquired psychiatric disorder. See 38 U.S.C. �� 1154 (a), 1154(b); 38 C.F.R. � 3.304 (f). In this case, the Veteran's lay statements are supported by his service records showing documented behavioral changes, as well as the VA examiner's opinion that the evidence at least as likely as not corroborates that the MSTs occurred and resulted in the currently diagnosed psychiatric disorders.

Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for a psychiatric disorder is warranted. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.304.

Cynthia M. Bruce

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N. Miller, 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

condition: ptsd

text:
Citation Nr: 25002000
Decision Date: 02/11/25	Archive Date: 02/11/25

DOCKET NO. 17-59 661
DATE: February 11, 2025

REMANDED

Entitlement to service connection for obstructive sleep apnea (OSA), claimed as secondary to service-connected posttraumatic stress disorder (PTSD) and fibromyalgia, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from October 1984 to June 1985 and from November 1985 to September 1993, including service in Southwest Asia.  He died in September 2021.  The appellant is his surviving spouse, and she has been substituted as the claimant for purposes of processing these claims, pending at the time of the Veteran's death, to their completion.

This matter originally came before the Board of Veterans' Appeals (Board) on appeal from December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied service connection for OSA.  The Veteran filed a notice of disagreement (NOD) in September 2016 and a statement of the case (SOC) was issued in June 2018.  He perfected a timely appeal in July 2018 via the submission of a VA Form 9 on which the Veteran's attorney, Jan Dils, requested a Board videoconference hearing, although she unfortunately failed to identify any errors of fact or law in the determination being appealed.

In April 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.  At the hearing, the Veteran's attorney, for the first time, raised a contention that the Veteran's sleep apnea was due to obesity caused by medications prescribed for his service-connected psychiatric disability and/or fibromyalgia.  The record reflects that Ms. Dils had been representing the Veteran since September 2016.

In July 2021, the Board remanded the matter to obtain a medical opinion regarding the newly raised theory of entitlement.  After considering the opinions obtained, in a November 2022 decision, the Board, inter alia, denied service connection for OSA.

The Veteran appealed the decision to the United States Court of Appeals for Veterans' Claims (Court).  In a December 2023 memorandum decision, the Court vacated and remanded the portion of the Board's November 2022 decision which (1) denied service connection for OSA claimed as due to service-connected PTSD and fibromyalgia, (2) an initial rating in excess of 30 percent for PTSD prior to October 2, 2017, and in excess of 50 percent for the period from October 2, 2017 to June 27, 2021.  The Court dismissed the appeal with respect to the Board's denial of disability compensation for bilateral hearing loss, a rating in excess of 70 percent for PTSD from June 28, 2021, and service connection for OSA "as directly related to service and as related to service through obesity as an intermediate step."  Memorandum decision at page 1.

The Board notes that the appellant was represented at the Court by Chisholm, Chisholm, and Kilpatrick.  Following the December 2023 memorandum decision, the firm filed an application for attorneys' fees and expenses in the amount of $19,118.83.  VA's General Counsel did not contest the reasonableness of the claimed fees beyond an agreed to amount of $17,915.93, for the sole purpose of avoiding further litigation and the costs related thereto.  In April 2024, the Court granted the application for the agreed amount of $17,915.93.  Chisholm, Chisholm, and Kilpatrick then elected not to continue representing the appellant before VA.  Thus, she remains represented by the attorney listed above.

In an August 2024 decision, the Board, inter alia, remanded the issue of entitlement to service connection for OSA claimed as due to service-connected PTSD and fibromyalgia for additional evidentiary development pursuant to the directives of the December 2023 memorandum decision.  A supplemental statement of the case (SSOC) was issued in December 2024.  The Veteran's VA claims file has been returned to the Board for further appellate proceedings.

1. Entitlement to service connection for OSA, claimed as secondary to service-connected PTSD and fibromyalgia.

In its December 2023 memorandum decision, the Court determined that the April 2022 VA medical opinion was inadequate.  In that opinion, the examiner concluded that the Veteran's service-connected PTSD and fibromyalgia did not aggravate the physiologic or anatomic mechanisms of sleep apnea but, according to the Court, did not address "whether the veteran's PTSD or fibromyalgia 'aggravated any functional impairment associated with [his sleep apnea]."  In that regard, the Court noted that the Veteran had "reported that his sleep apnea caused functional impairment in that he had difficulty staying awake while driving."  Memorandum decision at page 15.

In order to comply with the memorandum decision, the August 2024 Board decision determined that remand was warranted to obtain a VA medical opinion addressing whether the Veteran's service-connected PTSD or fibromyalgia caused any functional increase in the severity of his OSA.  In the August 2024 remand, the Board therefore instructed the AOJ to obtain a VA medical opinion to address the question of whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's OSA was aggravated by his service-connected PTSD or fibromyalgia.

Pursuant to the Board remand, a VA medical opinion was obtained in September 2024 in which the examiner concluded that the Veteran's obstructive sleep apnea was less likely than not aggravated by the Veteran's PTSD or fibromyalgia.

In rendering the opinion, however, the September 2024 VA examiner did not address whether the Veteran's PTSD or fibromyalgia aggravated the Veteran's reported functional impairment associated with his OSA, i.e. his difficulty staying awake while driving.

While the Board regrets further delay, given the basis for the December 2023 memorandum decision, the evidence is insufficient to adjudicate the Veteran's claim of entitlement to service connection for OSA, claimed as secondary to service-connected PTSD and fibromyalgia.  VA's duty to assist includes ensuring that an examination report or opinion obtained is adequate.  38?C.F.R. � 3.159(c);? Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that where VA provides the veteran with an examination in a service connection claim, the examination must be adequate).  The Board finds that remand is required to obtain a new VA opinion to address outstanding the question of aggravation.

The matter is REMANDED for the following action:

Refer the VA claims file to a medical professional to provide an opinion as to the claimed OSA disability.  After reviewing the record, the clinician should address the following:

Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's OSA was aggravated by his service-connected PTSD or fibromyalgia?

In rendering this opinion, the examiner must consider whether the Veteran's service-connected PTSD and/or fibromyalgia aggravated any functional impairment associated with his sleep apnea, particularly his reported difficulty staying awake while driving.

If aggravation is found, the clinician should also indicate the extent of such aggravation by identifying the baseline level of disability.  This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time.

K. Conner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. K. Buckley, 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: RAY BARTO SLABBEKORN, JR

benefit: smc

text:
Citation Nr: 25004000
Decision Date: 03/25/25	Archive Date: 03/25/25

DOCKET NO. 16-40 808A
DATE: March 25, 2025

ORDER

Entitlement to special monthly compensation based on the regular need for aid and attendance is granted.

FINDING OF FACT

Throughout the period on appeal, the Veteran has been in need of regular aid and attendance due to his service-connected disabilities.

CONCLUSION OF LAW

The criteria for SMC based on the Veteran being in need regular aid and attendance have been met. 38 U.S.C. ��1114, 5107; 38 C.F.R. ��3.350, 3.352.

REASONS AND BASES FOR FINDING AND CONCLUSION

In September 2022, the Board of Veterans' Appeals (Board) denied the Veteran's claim for special monthly compensation (SMC) based on the need for regular aid and attendance (A&A). That decision contains a recitation of the procedural history that need not be repeated here. In December 2022, the Veteran's attorney filed a motion to reconsider the Board's denial. The motion argued that the Board's decision did not consider the correct facts. In April 2024, the Board denied the Veteran's motion to reconsider the September 2022 denial. The Veteran then appealed the September 2022 denial to the United States Court of Appeals for Veterans Claims (Court). In November 2024, a Joint Motion for Partial Remand (JMPR) vacated the September 2022, Board denial of SMC based on A&A. The JMPR stated that the Board had failed to explain how the assistance the Veteran received from both his wife and daughter did not satisfy the criteria to establish SMC based on A&A. In February 2025, the Veteran's attorney submitted an Informal Hearing Presentation (IHP) which waived consideration of any new evidence by the regional office.

Entitlement to special monthly compensation based on the regular need for aid and attendance.

The Veteran contends that his service-connected headaches, hearing loss, tinnitus, posttraumatic stress disorder (PTSD), bilateral knee disability, and cervical spine disability result in him needing regular aid and attendance.

SMC is payable to a person who is permanently bedridden or so helpless as a result of service-connected disabilities that he is in need of the regular aid and attendance of another person. 38 U.S.C. �1114(l); 38 C.F.R. �3.350(b). The following will be accorded consideration in determining the need for regular aid and attendance: Inability of a claimant to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed him or herself through loss of coordination of the upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. �3.352(a).

It is not required that all of the disabling conditions enumerated in 38 C.F.R. �3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular A&A, not that there is a constant need. See Turco v. Brown, 9 Vet. App. 222 (1996). SMC is also payable where the Veteran has a single service-connected disability rated as 100 percent, without resort to individual unemployability, and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a result of his or her service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. � 1114(s); 38 C.F.R. � 3.350(i).

Importantly, in order for the Veteran to prevail in his claim, the evidence must show that it is a service-connected disability that has resulted in his being in need of regular A&A or being housebound. See Prejean v. West,13 Vet. App. 444 (2000).

Service connection is in effect for anxiety with PTSD with traumatic brain injury (TBI), obstructive sleep apnea and undiagnosed respiratory condition, benign prostatic hypertrophy with nocturia and daytime frequency, mild asymptomatic C5-6 and C6-7 cervical degenerative disc disease with cervical osteoarthritis, lumbar spondyloarthropathy and lumbar radiculopathy, right and left ankle sprains, tinnitus, pseudofolliculitis barbae, left ulnar neuropathy (non-dominant), chronic conjunctivitis and dry eye syndrome, carpal tunnel syndrome right wrist (dominant), degenerative joint disease and patellofemoral syndrome of the right and left knees, mild degenerative joint disease of the bilateral great toes, bilateral plantar fasciitis, left thumb dislocation, bilateral pes planus, bilateral hallux valgus, bilateral hearing loss, impotence secondary to use of psychotropic drugs, scar of the left knee, onychomycosis and tinea pedis of the bilateral feet, migraines, reflux esophagitis, allergic rhinitis, and chronic laryngitis.

The Veteran's combined service-connected rating is 100 percent, effective December 29, 2011; and entitlement to SMC(k)(1) also has been established from December 29, 2011(for loss of use of a creative organ). In addition, he has been found incompetent to handle disbursement of funds since February 17, 2021. See February 2021 rating decision.

The Veteran does not have a single service-connected disability rated as 100 percent, with a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability. The evidence also shows that the Veteran is not permanently housebound by reason of service-connected disabilities as further discussed below.

The November 2024 JMPR, as well as the February 2025 IHP, state that the Board failed to properly discuss 38 C.F.R. �3.352(a) and how the help that the Veteran's wife and daughter provide him fits into these criteria. For the reasons set forth below, the Board agrees that the Veteran is in need of A&A in order to protect himself from the hazards or dangers incident to his daily environment. Therefore, the claim for SMC A&A is granted.

In November 2020, an A&A Housebound examination was completed. The examination was completed as a home health examination via telehealth. The examiner stated the Veteran was not permanently bedridden. The Veteran reported intermittent falls secondary to his bilateral knee pain and reported being able to walk half a block without assistance but that he uses a cane as needed. The Veteran reported that due to his PTSD and TBI he had memory problems to include leaving doors open or forgetting to lock his doors. The Veteran further reported forgetting where he was going while he was driving. The Veteran described waking up in the morning and that getting up and out of bed takes him approximately 30 minutes. The Veteran reported being able to feed himself. The Veteran reported difficulty with putting his shoes on but that he was able to put on his underwear and shirts as long as the clothing is large. The Veteran used a shower chair and needs assistance getting into the shower but reported he was able to wash himself. The Veteran was unable to shave his own beard. The Veteran wore Depends and said he was able to change them on his own. However, the examination report then says that the Veteran's wife reported the Veteran had "difficulty keeping himself soon." The Board is unclear what this means but one assumption, giving all benefit of the doubt to the Veteran, is that this is a transcription error and the Veteran's wife was actually stating that the Veteran had difficulty keeping himself clean or some variant of that. This would at least be in keeping with the topic of the conversation. The Veteran also indicated a difficulty lifting his arms to put clothes on. This same difficulty prevents the Veteran from being able to cut or wash his hair. The Veteran's wife paid all the bills as she believed the Veteran would be unable to pay them on time due to his memory loss.

A November 2020 PTSD VA examination found significant challenges with memory and concentration. This included impairment of both short- and long-term memory that resulted in the Veteran forgetting to complete tasks. The Veteran was noted as casually dressed and maintaining adequate personal hygiene.

In December 2021, an additional VA examination for Housebound status and A&A was completed. This was an in-person examination. The examiner provided almost no restrictions on the Veteran's ability to complete the activities of daily living. The examiner found the Veteran was able to ambulate without assistance, dress and undress, feed himself, attend to the wants of nature, and keep himself presentable. This examination also indicated that the Veteran did not need assistance in bathing or in other hygiene needs. The examiner also found the Veteran able to manage his own financial affairs. There were also no restrictions on button clothing, shaving, or any other upper extremities short of a left thumb restriction. Despite these findings, the examiner did not provide any specifics based on the Veteran. There was no discussion of how his numerous service-connected disabilities impacted him and no discussion of how the Veteran was able to do these things despite earlier VA examinations explicitly indicating that the Veteran could not. The December 2021 VA examination directly contradicts both the November 2020 A&A examination as well as the November 2020 PTSD examination. Despite these contradictions the December 2021 examiner provides no rationale for the findings. The Board finds this failure to explain the conclusions lessens the probative value of this examination.

In March 2022, a VA examination focused on PTSD was completed. The examination report noted that the Veteran was not maintaining his hygiene and that this was impacting his marriage. This appears to be a report from the Veteran himself. The examiner noted significant challenges with the Veteran's memory and concentration. The examiner noted an intermittent inability to perform activities of daily living to include maintenance of minimal personal hygiene.

In May 2022, the Veteran was treated for his numerous disabilities and complained of difficulty with stairs as well as performing toilet and tub transfers. The Veteran also reported a balance deficit when he showers.

Since the September 2022 denial by the Board, additional medical evidence has been received to include multiple VA examinations.

A December 2022 statement from the Veteran's daughter indicated that the Veteran struggled to get dressed and that he needs frequent breaks. She also stated that she would help the Veteran stretch out his hands when they cramp due to his service-connected carpal tunnel.

In September 2023, a VA examination for the Veteran's sleep apnea found that the Veteran was suffering from persistent daytime hypersomnolence. A September 2023, VA examination focused on the Veteran's allergic rhinitis found that a result of his disability he needs to take breaks often.

In February 2024, a VA examination focused on the shoulders was completed. The Veteran complained that he was unable to put on clothes or lift things above his head. The examiner noted that the Veteran would have difficulty with activities that required repetitive overhead movement. In April 2024, a repeat examination of the bilateral shoulders was completed which noted difficulty raising his arm, reaching, and lifting the arm.

An April 2024 VA examination focused on sinusitis found that the Veteran had a limited ability to engage in exercise, stand, and walk due to shortness of breath.

The Board finds that providing all benefit of the doubt to the Veteran, he is in need of regular A&A due to his service-connected disabilities. As noted, in November 2020, the Veteran was unable to manage his financial affairs, he forgets to close and lock doors, forgets where he is going while driving, could not shave his own beard or wash his own hair, the Veteran required help to put on shoes, needed help entering and exiting the shower, and possibly struggled to keep himself clean. The March 2022 PTSD examination found the Veteran was not maintaining his hygiene and continued to struggle with his memory. The examiner noted that the Veteran intermittently showed an inability to perform activities of daily living which included maintaining personal hygiene. In May 2022, the Veteran noted needing help with transferring himself to both the shower and the toilet. Multiple 2024 shoulder examinations found the Veteran struggled to raise his arms including putting on clothes. He has also been noted to need assistance putting on his shoes. As noted above, it is not required that all of the disabling conditions enumerated in 38 C.F.R. �3.352(a) be found to exist before a favorable rating may be made.

Based on the evidence as outlined above, the evidence is nearly approximately equal both for and against a finding that the Veteran has been in need of regular A&A due to his service-connected disabilities throughout the period on appeal, and entitlement to additional SMC pursuant to 38 U.S.C. � 1114 (l) is warranted. Accordingly, the Veteran's claim is granted.

RAY BARTO SLABBEKORN, JR.

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Andrew Ledman II

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.