Citation Nr: 0813917 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 05-16 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. What rating is warranted for osteoarthritis of the left shoulder since July 1, 1996? 2. What rating is warranted for osteoarthritis of the right shoulder condition since July 1, 1996? 3. What rating is warranted for degenerative disc disease of the lumbar and thoracic spine since July 1, 1996? 4. What rating is warranted for degenerative disc disease of the cervical spine since July 1, 1996? 5. Entitlement to service connection for a right ankle condition. 6. Entitlement to service connection for a left ankle condition. 7. Entitlement to service connection for a right leg condition. 8. Entitlement to service connection for a left leg condition. 9. Entitlement to service connection for a right hand condition. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Heather M. Gogola, Associate Counsel INTRODUCTION The veteran served on active duty from October 1972 to October 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2004 and May 2005 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. At the outset, the Board notes that the veteran initially appealed the issues of entitlement to service connection for right and left arm disorders. A rating decision dated March 2006, granted service connection for those disorders. Thus, those issues are no longer before the Board. The Board also notes that the veteran was granted a total disability rating based on individual unemployability by an April 2007 rating decision, effective March 31, 2004. In statements dated May, June, and August 2006, the veteran appears to raise a claim to reopen the issue of entitlement service connection for a dental disorder, as well as the issue of entitlement to service connection for residuals of a facial fracture. Service connection for treatment purposes is already in effect for a dental disorder. The foregoing issues, however, are not currently developed or certified for appellate review. Accordingly, they are referred to the RO for appropriate consideration. Furthermore, any evidence received subsequent to the supplemental statement of the case dated May 2006, is duplicative, cumulative and as such, not pertinent to questions of whether veteran has any bilateral ankle, or bilateral leg disorders as a result of service. The claims regarding entitlement to increased ratings for degenerative disc disease of the cervical and lumbosacral spine, osteoarthritis of the left and right shoulders, and entitlement to service connection for a right hand disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran does not currently have a diagnosed right ankle disability. 2. The veteran does not currently have a diagnosed left ankle disability. 3. The veteran does not currently have a diagnosed right leg disability. 4. The veteran does not currently have a diagnosed left leg disability. CONCLUSION OF LAW 1. A right ankle disability was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 2. A left ankle disability was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. A right leg disability was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. A left leg disability was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate form or completeness of the application. VA notified the veteran in March 2005 and March 2006 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and notice of what part the VA will attempt to obtain. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examination. VA informed the claimant of the need to submit all pertinent evidence in his possession, and provided adequate notice of how disability ratings and effective dates are assigned. While the appellant did not receive full notice prior to the initial decision, after pertinent notice was provided the claimant was afforded a meaningful opportunity to participate in the adjudication of the claims, and the claim was readjudicated in a May 2006 supplemental statement of the case. The claimant was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. Further, the foregoing evidence demonstrates that the notice provided by VA rebuts any suggestion that the appellant was prejudiced by the Department's failure to provide full and complete notice prior to the rating decisions at issue. Analysis The veteran contends that he has pinched nerves in both ankles and bilateral leg pain, due to his low back disability. Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service- connected disease or injury." 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The veteran's September 1972 entrance medical history and examination reports note normal upper and lower extremities. In March 1973, the appellant reported left knee pain. Physical examination led to no pertinent diagnosis being offered. On his report of medical history dated September 1976, the veteran noted complaints of leg cramps, but physical examination revealed clinically normal lower extremities. Treatment records from the Bronx-Lebanon Hospital dated 1997 were silent to any complaints of, treatment for, or diagnoses of any ankle, leg, or right hand disorders. A March 2000 medical opinion from Dr. M.R., noted severe degenerative arthritis of both feet with pain and swelling, but did not indicate any complaints pertaining to either a bilateral ankle or leg disorder. Subsequent letters from Dr. M.R., were essentially the same, noting treatment for the same conditions outlined in the March 2000 letter. VA treatment reports dated between November 2003 and November 2004 are silent for any complaints, treatment, or diagnoses pertaining to any leg or ankle disorder. A May 2004 letter from Dr. F.D., also indicated that the veteran had severe degenerative arthritis of the both feet. The doctor stated that the veteran was unable to stand or walk for more than one hour per day due to foot and knee pain, and recommended that the veteran limit standing and walking due to pain and swelling. Subsequent letters from Dr. F.D., provided essentially the same information. Records from Bronx-Lebanon Hospital dated November to February 2005 were silent to any pain in the legs or ankles. A December 2004 treatment report and electromyographic study from Dr. U.T., noted pain in the lower back that did not clearly radiate into the legs. The electromyographic report indicated that electrical findings suggested bilateral tarsal tunnel syndrome. There was no lumbosacral radiculopathy. VA treatment records dated between January and March 2006 are again silent as to any complaints of, treatment for, or a diagnosis of any leg or ankle disorder. An August 2005 treatment record noted complaints of weakness in the knees. A December 2005 letter from Dr. A.M., noted that the veteran complained of lower extremity numbness. The veteran has submitted numerous statements throughout his appeal contending that he has damage to his legs and knees, which gave him trouble with walking. The veteran further asserted that the damage to his legs and knees is due to his military service. The veteran's wife also submitted statements contending that the veteran had "pinched nerves" in his ankles causing him ankle and leg pain, that were due to his low back disability. While the veteran contends that he has bilateral ankle and leg disorders that are either related to military service or to his low back disability the record fails to show objective evidence of a current ankle or leg disability. While VA treatment records reflect some occasional complaints of numbness in the lower extremities, the record is negative for a diagnosis of any bilateral leg disorder. Similarly, despite the veteran's contention of "pinched nerves" in his ankles that causes pain in the ankles and legs, the record is negative for a diagnosis of any bilateral ankle disorder. Pain alone without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute disability for which service connection may be granted. Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) appeal dismissed in part, and vacated and remanded in part, sub nom., Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). The December 2004 treatment report from Dr. U.T., noted that an electromyographic findings suggested bilateral tarsal tunnel syndrome - a foot disorder resulting from compression of the posterior tibial nerve or of the plantar nerves in the tarsal tunnel, causing pain, numbness, and tingling of the sole of the foot. See Dorlands Illustrated Medical Dictionary, page 1834 (30th ed. 2003). Additionally, the January 2005 VA examiner noted low back pain without radiation and without leg pain. Thus, in absence of chronic pathological processes associated with the veteran's legs and ankles, there is no reasonable basis to establish service connection. Brammer v. Derwinski, 3 Vet.App. 223 (1992). While the veteran has submitted numerous statements from both VA and private doctors regarding his foot condition, he never asserted a claim of entitlement to service connection for a foot disorder over which the Board may exercise appellate jurisdiction. Of course, the appellant is free to attempt to open a claim for service connection for a foot disorder, but at this point there is no pending claim. As there is not an approximate balance of positive and negative evidence regarding the merits of the appellant's claims for service connection for a left and right leg condition, and a left and right ankle condition that would give rise to a reasonable doubt in favor of the appellant, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for right ankle, left ankle, right leg and left leg disorders is denied. REMAND By a March 2004 rating decision, the RO granted service connection for osteoarthritis of the right shoulder (20 percent), osteoarthritis of the left shoulder (20 percent), degenerative disc disease of the cervical spine (10 percent) and degenerated disc disease of the lumbar spine (10 percent), each effective July 1, 1996. The veteran appealed, asserting his disabilities warranted a higher rating. An October 2004 rating decision granted an increased rating to 30 percent for the veteran's right shoulder osteoarthritis, effective March 31, 2004. A May 2005 rating decision granted an increased rating for the veteran's degenerative disc disease of the lumbar spine to 20 percent, effective January 4, 2005. The veteran has continuously expressed his disagreement with his current ratings. Unfortunately, after reviewing the voluminous record, further development is in order. While the veteran has been afforded VA examinations in conjunction with his claim, the veteran's back, neck, and bilateral shoulder disabilities have not been thoroughly evaluated since his January 2005 VA examination. Whether an examination is sufficiently contemporaneous to properly rate the current severity of the veteran's disability depends on the particular circumstances of the individual case. See, e.g., Snuffer v. Gober, 10 Vet. App. 400 (1997). In December 2005, the veteran submitted a statement indicating that his symptoms relating to his back, neck and shoulder disabilities have worsened. Specifically, he stated that his pain has increased, making it difficult to function, and that he had little or no range of motion in his shoulders. A statement from his wife also indicated that the veteran was having increasing difficulty with walking and performing tasks due to his back pain. As such, the veteran should undergo additional VA examinations in order to better assess the current severity, symptomatology, and manifestations of his cervical, shoulder and lumbosacral disorders. See 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (VA has an affirmative duty to obtain an examination of the claimant at VA health- care facilities if the evidence of record does not contain adequate evidence to decide a claim). Regarding the veteran's claim for service connection for a right hand disorder, the Board finds that further development is also in order. In a January 2005 VA examination, the examiner noted a three to four year history of right hand cramping, and opined that the right hand condition was not related to the veteran's shoulder condition, but rather was related to the veteran's cervical radiculopathy. The examiner, however, did not provide a rationale for the opinion. Subsequent VA treatment records document complaints of muscle spasms, swelling, weakness, and lack of trigger fingers on the right hand. A March 2005 right shoulder magnetic resonance imaging scan showed a partial tear supraspinatus tendon, bicipital tyenosynovitis, bursitis, an inferior acromioclavicular joint osteophyte, and erosion of the humeral head. It was recommended that an impingement syndrome should be ruled out clinically,. In August 2006, however, a second VA examiner, who did not have access to the claims file, noted pain and swelling in the hands, right more than left. The veteran denied numbness in the hands but admitted to paresthesias in the fingertips. He also complained that the whole right hand was "tight." Deep tendon reflexes were 2+ in the biceps, and 1+ in the triceps. The examiner stated that there was no clinical evidence of peripheral nerve, including median nerve, dysfunction, and opined that the veteran's hand pain might be due to arthritis. An electrodiagnostic consultant found mild right suprascapular nerve exonal neuropathy, and recommended imaging studies of the shoulder to rule out any rotator cuff pathology. The examiner did not provide an opinion as to whether any right hand disorder was at least as likely as not related to either the veteran's service, or to his service- connected disabilities. As the etiology of the veteran's right hand disorder is unclear from the evidence of record, the veteran should be afforded another VA examination. An examination or opinion is necessary to make a decision on a claim if the evidence of record contains competent evidence that the claimant has a current disability, and indicates that the disability or symptoms may be associated with the claimant's active military history, but does not contain sufficient medical evidence to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(c)(4); Charles v. Principi, 16 Vet. App. 370 (2002) (where there is competent evidence of a current disability and evidence indicating an association between the disability and active service, there must be competent evidence addressing whether a nexus exists). Therefore, an examination should be obtained to resolve these issues. Accordingly, the case is REMANDED for the following action: 1. After obtaining the necessary authorizations, the RO should attempt to obtain any copies of the veteran's records reflecting treatment since July 2006, from the St. Albans and New York VA Medical Centers in New York. If the RO is unable to secure records which are maintained by a Federal office, then the RO must specifically document what attempts were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. After all records are associated with the claims file, the veteran should be scheduled for a VA examination to ascertain the severity and manifestations of his cervical and lumbar degenerative disc disease, in accordance with the applicable rating criteria. The claims files must be made available to and reviewed by the examiner prior to the examination. The examiner is to conduct all necessary testing and evaluation needed to evaluate the nature and extent of these disorders, including x-ray studies if clinically appropriate. The examiner should review the results of any testing prior to completion of the report and should detail the veteran's complaints and clinical findings, clinically correlating his complaints and findings to the disorder. In the report the examiner must address the following: a) Conduct range of motion studies of the lumbosacral and cervical spine. The examiner should opine whether such ranges of motion indicate mild, moderate or severe limitation of motion in both the lumbosacral and cervical spines. The examiner should determine whether the appellant's low back and neck exhibit weakened movement, excess fatigability, or incoordination attributable to the service connected low back disability and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. The examiner should express an opinion on whether pain could significantly limit functional ability during flare-ups or when the low back is used repeatedly over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. (b) State whether either the veteran's cervical and/or lumbosacral degenerative disc disease is manifested by an intervertebral disc syndrome, and if so whether he has documented incapacitating episodes. If incapacitating episodes are documented, the examiner should state the total duration during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. In the case of intervertebral disc syndrome, if any, the examiner should also state whether the veteran experiences mild, moderate, or severe recurring attacks. The basis for any findings of intervertebral disc syndrome and associated incapacitating episodes should be fully explained. c) The examiner should state whether there is any neurological impairment due to either the veteran's cervical or lumbosacral degenerative disc disease. Such tests as the examining physician deems necessary should be performed. All findings should be reported in detail. If any neurological impairment is found, the examiner should specifically identify the nerve or nerves that are affected by the particular spinal segment, and discuss the severity of the impairment caused by the affected nerve(s). In this regard, please state whether there is any paralysis of the affected nerve, and if so whether it is complete or incomplete, and whether such paralysis is mild, moderate or severe. d) After review of the record, state the periods (if any) in which the veteran's lumbosacral degenerative disc disease was manifested by symptoms, or ranges of motion indicating mild, moderate or severe limitation of motion, or intervertebral disc syndrome characterized by mild, moderate with recurring attacks, or severe recurring attacks with intermittent relief. e) After review of the record, state the periods (if any) in which the veteran's cervical degenerative disc disease was manifested by symptoms, or ranges of motion indicating mild, moderate or severe limitation of motion, or intervertebral disc syndrome characterized by mild, moderate with recurring attacks, or severe recurring attacks with intermittent relief. 3. Schedule the veteran for a VA examination to ascertain the severity and manifestations of the his bilateral shoulder osteoarthritis. The claims files must be made available to and reviewed by the examiner prior to the examination. The examiner is to conduct all necessary testing and evaluation needed to evaluate the nature and extent of this disorder, including range of motion studies. Conduct all testing, including range of motion. The examiner should review the results of any testing prior to completion of the report and should detail the veteran's complaints and clinical findings, clinically correlating his complaints and findings to each diagnosed disorder. Please provide a rationale for all opinions provided. 4. Schedule the veteran for a VA examination to determine the etiology of any right hand disorder. The claims folder should be reviewed by the examiner prior to the examination of the veteran. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. Following the examination the examiner must opine whether it is at least as likely as not, i.e., is there a 50/50 chance that any diagnosed right hand disorder is related to any aspect of the veteran's service- connected cervical degenerative disc disease, and/or his right shoulder osteoarthritis. The examiner should specifically comment on the January 2005 VA examination, the March 2005 magnetic resonance imaging of the right shoulder, and the August 2006 opinion. A complete rationale for any and all opinions provided must be made. 5. The RO should review all medical examination reports to ensure that they are in complete compliance with the directives of this remand. If it is deficient in any manner, the RO must implement corrective procedures at once. 5. The veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. Thereafter, the RO should readjudicate the claims. If either benefit is not granted, the veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs