Citation Nr: 1320801	
Decision Date: 06/27/13    Archive Date: 07/05/13

DOCKET NO. 10-09 632	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1. Entitlement to service connection for a thoracolumbar spine disorder. 

2. Entitlement to service connection for a cervical spine disorder. 

3. Entitlement to service connection for a right hip disorder. 

4. Entitlement to service connection for a left hip disorder. 

5. Entitlement to an initial compensable disability rating for bruxism. 

6. Entitlement to an initial compensable disability rating for chronic right ankle sprain. 

7. Entitlement to an initial compensable disability rating for bilateral inguinal hernias. 



ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel


INTRODUCTION

The Veteran served on active duty from February 1996 to May 2008.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Salt Lake City, Utah Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction has since been transferred to the Pittsburgh, Pennsylvania RO. 

This case was remanded by the Board in March 2012 for additional development. 

A review of the Virtual VA paperless claims processing system reflects that additional records have not been added to the present appeal. 


FINDINGS OF FACT

1. The probative weight of the evidence is against a finding of a current diagnosis of a thoracolumbar spine disorder. 

2. The probative weight of the evidence is against a finding of a current diagnosis of a cervical spine disorder. 

3. The probative weight of the evidence is against a finding of a current diagnosis of a right hip disorder. 

4. The probative weight of the evidence is against a finding of a current diagnosis of a left hip disorder. 

5. Throughout the duration of the appeal, the Veteran's bruxism symptoms have been productive of teeth grinding, the use of a mouth guard and subjective reports of unspecified damage. 

6. Throughout the duration of the appeal, the Veteran's chronic right ankle sprain symptoms have been productive of the use of a brace and subjective complaints of pain, popping and instability. 

7. Throughout the duration of the appeal, the Veteran's bilateral inguinal hernia symptoms have been productive of minimal residual scar tissue palpable in left inguinal area and subjective complaints of mild aching and a left inguinal lump. 


CONCLUSIONS OF LAW

1. The criteria for the establishment of service connection for a thoracolumbar spine disorder are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 

2. The criteria for the establishment of service connection for a cervical spine disorder are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 

3. The criteria for the establishment of service connection for a right hip disorder are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 

4. The criteria for the establishment of service connection for a left hip disorder are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 

5. The criteria for an initial compensable disability rating for bruxism have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.150, Diagnostic Code 9913 (2012). 

6. The criteria for an initial compensable disability rating for chronic right ankle sprain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012).

7. The criteria for an initial compensable disability rating for bilateral inguinal hernias have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7338 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).


The Veterans Claims Assistance Act (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012).

The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Prior to the initial adjudication of the Veteran's claims in the June 2008 rating decision, he was provided notice consistent with the requirements of the VCAA in August 2007. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Veteran also received information in February 2009 and July 2012 about the establishment of disability ratings and effective dates if a claim of service connection was successful. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra.




Service connection for bruxism, a chronic right ankle sprain and bilateral inguinal hernias has been established and initial ratings for these conditions have been assigned. The claims have therefore been substantiated. See Dingess, 19 Vet. App. at 490-491. Notice under the VCAA is no longer required as to this matter, because the purpose for which such notice was intended to serve has been fulfilled. Id. 

This case was remanded by the Board in March 2012 to request from the Veteran any outstanding private or VA medical treatment and to provide the Veteran with adequate VA examinations for all of the disabilities on appeal. In April 2012 and July 2012 letters, the Veteran was asked to provide information on any private and VA medical treatment received. To date, no response was received indicating the Veteran had post service private or VA medical treatment. 

The April 2012 letter also informed the Veteran that the VA medical facility nearest to him would schedule him for an examination and notify him of the date, time and place of the examination. Records reflect that a VA medical center (VAMC) attempted to schedule the Veteran for VA examinations; however, a June 2012 note in the VAMC records reflects that a letter had been mailed to the Veteran and asking him to call to schedule a VA examination but no response was received. In the July 2012 letter, the Veteran was informed that VA had tried to schedule him for examinations in April 2012 and again in June 2012 and that each time he had not responded to the requests. He was then informed that no further attempts would be make to scheduled him for an exam unless he contacted them and a phone number was provided. In a July 2012 VCAA response, the Veteran checked a box indicating that he had enclosed all the remaining information or evidence that would support his claim or that he had no other information or evidence to give VA to support his claim and that VA should decide his claim as soon as possible. The Veteran's address was confirmed in July 2012 as the same address to which the VA notice letters had been mailed. 

The United States Court of Appeals for Veterans Claims has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is clear from the Veteran's July 2012 VCAA notice response that he received the VA notices regarding requests for his private and VA medical treatment and was aware of the attempts to schedule him for an examination. In addition, the Veteran specified that he had enclosed all the remaining information or evidence that would support his claim or that he had no other information or evidence to give VA to support his claim and that VA should decide his claim as soon as possible, indicating no desire to reschedule his examinations or provide additional information, as no attachments had been received along with this response. Thus, the Board finds that the duty to assist the Veteran in obtaining post service private and VA medical evidence and scheduling VA examinations has been fulfilled and VA has made reasonable efforts to identify and obtain these relevant records in support of his statements. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). 

Therefore, the development requested by its March 2012 remand has now been satisfactorily attempted and substantially complied with, to the degree possible, with respect to the claims on appeal. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 where Board's remand instructions were substantially complied with). 

All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records, a VA examination and statements from the Veteran. The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2012).





The Merits of the Appeal

A. 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.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).

The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2012). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365.

With regard to VA examinations, the Board notes that the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v. West, 13 Vet. App. 31, 35 (1999).

In statements presented throughout the duration of the appeal, the Veteran has maintained that his thoracolumbar spine, cervical spine, right hip and left hip disorders are all related to his active service, specifically, to his years of parachute duty and carrying heavy loads in service. 

The Veteran's Certificate of Release or Discharge from Active Duty (DD Form 214) reflects that his military occupational specialties (MOSs) included a psychological operations specialist and a vehicle maintenance supervisor. His military education included Airborne and Special Forces training. Thus, his service information supports his statements of parachuting and carrying heavy loads in service. 

Service treatment records reflect that upon entrance into active service, a November 1995 entrance examination revealed normal findings of the neck, spine, other musculoskeletal and lower extremities. In April 1997, the Veteran was treated for complaints of upper back pain for the previous three days after a road march with a ruck sack. He was diagnosed with back strain. A July 2000 periodic examination revealed no abnormalities of the neck, spine, other musculoskeletal or lower extremities. In a July 2000 Report of Medical History he denied any history of swollen joints, painful joints, the use of a back brace for support, bone deformity, joint deformity, other deformity, recurrent back pain or any back injury and the service medical officer noted that the Veteran denied all significant medical history. A February 2006 Post Deployment Health Assessment reflects that the Veteran reported symptoms of muscle aches and denied any symptoms of back pain or swollen, stiff or painful joints. In a May 2006 Post Deployment Health Assessment the Veteran denied any symptoms of swollen, stiff or painful joints, back pain or muscle aches. 

A July 2006 Post Deployment Health Assessment reflects that the Veteran reported he was in excellent health during the previous month and that he had no health concerns or conditions related to his deployment. In an August 2006 Pre-Deployment Health Assessment, the Veteran reported being in excellent health and that he had no questions or concerns about his health at that time. A September 2007 separation examination revealed normal findings of the neck, spine, other musculoskeletal and lower extremities. The Veteran reported having a history of recurrent back pain or any back problem, swollen or painful joints and bone, joint or other deformity in the September 2007 Report of Medical History. These reports were specified as recurring back pain, recurring ankle injury and a right ankle injury. No neck or hip problems were specified at that time. In a September 2007 Report of Medical Assessment, the Veteran reported his overall health was worse since his last medical assessment and physical examination and indicated his back hurt more. He also reported that he intended to seek VA disability for back and neck pain and hips cracking, among other disabilities. 

In a January 2008 VA examination, the Veteran reported that his bilateral hips "popped" when fully flexed and with extreme range of motion for the previous three to four years. He stated that when his hips popped, he felt a vibration sensation up his spine. Current subjective complaints of the hips were summarized to include no real pain, just a popping sensation. No current treatment or surgical treatment was reported for the hips. With respect to his back pain, the Veteran reported having infrequent faint spasms in the lower back for a few years. No current treatment or surgical treatment was reported for the back. The Veteran reported that his neck cracked with range of motion and he had mild neck pain when he slept in an awkward position for the previous five years. No current treatment was reported for the neck. 

A physical examination of the neck revealed normal findings. In addition, physical examinations of the lumbar spine, hips and neck revealed a full range of motion with no effects on joint range of motion due to pain, weakness, fatigue or incoordination following repetitive use or flare ups. There were no findings of swelling, effusion, tenderness, muscle spasm, joint laxity, muscle atrophy or fibrous or bony residual of fracture. In the diagnosis the examiner noted that no disability was found of the hips, back and neck. 

While the January 2008 VA examination did not include any objective range of motion measurements for the thoracolumbar spine, cervical spine or bilateral hips, the June 2008 rating decision included range of motion findings for each claimed disability, indicating a full range of motion for all disabilities, which were attributed to the January 2008 VA examination. A review of the Virtual VA paperless claims processing system did not reveal another copy of the examination report with the range of motion findings. 

Service connection for a thoracolumbar spine disorder, a cervical spine disorder, a right hip disorder and a left hip disorder is not warranted as the preponderance of the evidence is against these claims. While the service information of record supports his statements of parachuting and carrying heavy loads in service and reflects treatment for back strain in April 1997, complaints of muscle aches in February 2006 and reports of back pain, neck pain and hips cracking upon separation from active service in September 2007, following his initial filing of claims for service connection, there is no probative objective evidence of a current thoracolumbar spine disorder, cervical spine disorder, right hip disorder or left hip disorder. 

The post service medical evidence consists of the January 2008 VA examination in which the Veteran complained of a popping sensation in the hips, back pain with faint spasms and neck cracking with mild neck pain when he slept in awkward positions. The examiner found that there was no disability found of the hips, back and neck following a physical examination. 

While the January 2008 VA examination was incomplete, attempts to reschedule the Veteran for new VA examinations in April 2012 and July 2012, per the Board's March 2012 remand instructions, yielded no response from the Veteran. Based on his July 2012 VCAA notice response, it was clear that the Veteran received the notice informing him of the attempts to schedule him for an examination; however he indicated no desire to reschedule his examinations or provide additional information, as no attachments had been received along with this response. 

With respect to the Veteran's statements regarding symptoms of back, neck and bilateral hip pain and that he had years of parachute duty and carrying heavy loads in service, his is competent to report lay observable events in the military and his current symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). However, the Veteran is not competent to specify to specify that he has a current thoracolumbar spine, cervical spine, right hip or left hip disorder or that his back, neck, and bilateral hip symptoms, in fact, represent a current thoracolumbar spine, cervical spine, right hip or left hip disorder, as this would constitute medical conclusions which he is not competent to make. See Jandreau, 492 F.3d at 1377 n.4 ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue).

Therefore, there is no competent medical evidence of a current thoracolumbar spine disorder, cervical spine disorder, right hip disorder or left hip disorder. 

VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997). The Court since has clarified that this requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of the claim, even if the disability resolves prior to VA's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 , 312 (2007). The probative evidence of record clearly demonstrates that the Veteran does not have a current diagnosis of a thoracolumbar spine disorder, cervical spine disorder, right hip disorder or left hip disorder at any time during the pendency of his claim. 

In Brammer v. Derwinski, 3 Vet. App. 223  (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in disability. See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection may not be granted unless a current disability exists]. A "current disability" means a disability shown by competent evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997).

In Degmetich, it was observed that the law only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit Court observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability, namely a thoracolumbar spine disorder, a cervical spine disorder, a right hip disorder and a left hip disorder, there can be no valid claim.

The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims for service connection for a thoracolumbar spine disorder, a cervical spine disorder, a right hip disorder and a left hip disorder, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 





B. Increased Initial Ratings

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

In order to evaluate the level of disability and any changes in the disorder, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 

Where the question for consideration is the propriety of the initial evaluation assigned after the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found - this practice is known as "staged ratings." Id. 

1. Bruxism

Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, for the reasons discussed below, the Board finds that the preponderance of the evidence is against the claim. 38 U.S.C.A § 5107 (West 2002); Alemany v. Brown, 9 Vet. App. 518 (1996).

The dental conditions for which service-connected compensation benefits are available are set forth under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Diagnostic Code 9900 contemplates chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible. Diagnostic Codes 9901 and 9902 address loss of the mandible. Diagnostic Codes 9903 and 9904 concern nonunion and malunion of the mandible, respectively. Diagnostic Code 9905 addresses temporomandibular articulation and limited jaw motion. Diagnostic Codes 9906 and 9907 contemplate loss of the ramus, and Diagnostic Codes 9908 and 9909 address loss of the condyloid and coronoid processes. Diagnostic Codes 9911 and 9912 concern loss of the hard palate. Loss of teeth due to loss of substance of the body of the maxilla or mandible without loss of continuity is contemplated under Diagnostic Code 9913, and loss of the maxilla is addressed under Diagnostic Codes 9914 and 9915. Diagnostic Code 9916 concerns malunion or nonunion of the maxilla. See 38 U.S.C.A. § 1712 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.381, 4.150, 17.161 (2012).

The Veteran's bruxism was rated by analogy under Diagnostic Code 9913, which establishes a disability evaluation for tooth loss due to loss of substance of the body of the maxilla or mandible without loss of continuity. Where the lost masticatory surface cannot be restored by a suitable prosthesis, a maximum 40 percent disability rating is warranted for the loss of all teeth, a 30 percent rating for the loss of all upper teeth or all lower teeth, a 20 percent rating for the loss of all upper and lower posterior or upper and lower anterior teeth, a 10 percent rating for the loss of all upper anterior or lower anterior teeth, or a 10 percent rating for the loss of all upper and lower teeth on one side. A noncompensable rating is assigned where the loss of masticatory surface can be restored by suitable prosthesis. Note to Diagnostic Code 9913 indicates these ratings apply to bone loss through trauma or disease, such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling. 38 C.F.R. § 4.150 (2012). Thus, compensation is available for loss of teeth only if such is due to substance loss of the body of the maxilla or mandible due to trauma or disease such as osteomyelitis, but not due to periodontal disease. 

The Veteran contends that bruxism is more severe than is contemplated by the initially-assigned rating. He reported that permanent damage had been done to his teeth which was largely due to the daily stress in the Army. See Notice of Disagreement (NOD), dated December 2008. He reported that his Army dentists remarked about the damage even after he began wearing a mouth guard and he could not wear his mouth guard during field training. Id. The Veteran also reported that the damage was irreversible. Id. 

Medical evidence dated within a year of the Veteran's August 2007 claim includes some service treatment records and service dental records. An April 2006 service dental record reflects that the Veteran was treated for bruxism and issued a night guard. In the September 2007 separation examination, the Veteran was assessed with acceptable dental defects and disease upon clinical evaluation. In the September 2007 Report of Medical History, the Veteran denied any severe tooth or gum trouble. A January 2008 service dental record reflects that the Veteran was using a night guard. 

At a January 2008 VA examination, the Veteran reported he had a history of teeth grinding since 2000 and current symptoms included grinding his teeth at night. His current reported treatment included wearing a mouth guard. The Veteran was diagnosed with bruxism. 

The symptoms of the Veteran's bruxism do not warrant an initial compensable disability rating at any time during the pendency of the appeal. The evidence of record, including lay statements, service treatment and dental records and the January 2008 VA examination, demonstrates that the Veteran's bruxism was productive of teeth grinding, the use of a mouth guard and subjective reports of unspecified damage. This disability has not been productive of the loss of any teeth, including the loss of all upper anterior or lower anterior teeth, or the loss of all upper and lower teeth on one side, so as to warrant an initial compensable disability rating under Diagnostic Code 9913. 38 C.F.R. § 4.150. 

While the January 2008 VA examination was incomplete, attempts to reschedule the Veteran for new VA examinations in April 2012 and July 2012, per the Board's March 2012 remand instructions, yielded no response from the Veteran. Based on his July 2012 VCAA notice response, it was clear that the Veteran received 2012 notice informing him of the attempts to schedule him for an examination; however he indicated no desire to reschedule his examinations or provide additional information, as no attachments had been received along with this response. 

Other appropriate diagnostic codes for application have been considered. However, as the Veteran's service-connected bruxism does not demonstrate findings of, chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion and malunion of the mandible, temporomandibular articulation and limited jaw motion, loss of the ramus, loss of the condyloid process, loss of the coronoid process, loss of the hard palate, loss of the maxilla, or malunion or nonunion of the maxilla at any time during the pendency of the appeal, Diagnostic Codes 9900, 9901, 9902. 9903, 9904, 9905, 9906, 9907, 9908, 9909, 9911, 9912, 9914, 9915 and 9916 do not apply. 38 C.F.R. § 4.150. 

In reaching the above conclusions, the Board has considered the lay statements by the Veteran with regard to the severity of his service-connected bruxism and in large part has relied on his reports in determining an appropriate disability rating under the benefit-of-the-doubt doctrine. The Veteran is competent to report on factual matters of which he had firsthand knowledge and thus, he is competent to report his current symptomatology as it pertains to his bruxism. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Thus, the Veteran's reports with respect to experiencing symptoms of bruxism, including teeth grinding and the use of a mouth guard, have been considered in evaluating his disability rating in this decision. 

Absent loss of any teeth, an initial compensable disability rating is not warranted under Diagnostic Code 9913. See 38 C.F.R. § 4.150, Diagnostic Code 9913. 

The preponderance of the evidence is against the claim as it does not approximate findings equal or approximate to the criteria for an initial compensable disability rating at any time since the date service connection was awarded on May 6, 2008, the day following his discharge from military service. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's disability has been no more than 0 percent disabling since the effective date of his award, so his rating cannot be "staged" because this represents his greatest level of functional impairment attributable to this condition. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The benefit sought on appeal is accordingly denied.

2. Chronic Right Ankle Sprain 

Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, for the reasons discussed below, the Board finds that the preponderance of the evidence is against the claim. 38 U.S.C.A § 5107 (West 2002); Alemany v. Brown, 9 Vet. App. 518 (1996).

When evaluating musculoskeletal disabilities, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The Veteran's chronic right ankle sprain has been rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012). 

Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II (2012). 

Diagnostic Code 5270 provides ratings for ankylosis of the ankle. Ankylosis of the ankle in plantar flexion less than 30 degrees is to be rated 20 percent disabling; ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, is to be rated 30 percent disabling; ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity, is to be rated 40 percent disabling. 38 C.F.R. § 4.71a.

Diagnostic Code 5271 provides ratings based on limitation of extension of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling; and marked limitation of motion of the ankle is rated as 20 percent disabling. 38 C.F.R. § 4.71a.

Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Id. 

When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Id. 

When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. 

When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. Id. 

Medical evidence dated within a year of the Veteran's August 2007 claim includes a September 2007 Report of Medical History reflecting that the Veteran noted a history of swollen or painful joints and bone, joint or other deformity, which were specified as a recurring right ankle injury. In a September 2007 Report of Medical Assessment, the Veteran stated that his overall health was worse than compared to his last medical assessment and he had suffered additional ankle injuries. The September 2007 separation examination revealed normal findings of the lower extremities upon clinical evaluation. 

At a January 2008 VA examination, the Veteran reported his right ankle then popped with range of motion activities and he had to run with a brace. He stated his right ankle occasionally ached mildly when he exercised a lot or in cold weather. Current treatment included bracing as needed. A physical examination revealed that the left ankle, not the right ankle, was examined and demonstrated a full range of motion and there were no effects on joint range of motion due to pain, weakness, fatigue or incoordination following repetitive use or flare ups. In addition, in answering whether there were any findings of swelling, effusion, tenderness, muscle spasm, joint laxity, muscle atrophy or fibrous or bony residual of fracture, the examiner stated "yes" and specified that there was minimal tenderness over the lateral anterior talofibular (ATF) ligament. It is still unclear as to why the left ankle, rather than the right ankle was evaluated or whether such was a typographical error. The Veteran was diagnosed with recurrent right ankle sprains and the examiner noted that he would need to use a brace as needed with excessive physical activity. 

While the January 2008 VA examination indicated that the objective range of motion measurements were for the left ankle, it is clear that the Veteran's right ankle measurements were obtained. The body of the report clearly indicates that the examiner was focused on the right, and not the left ankle; and the June 2008 rating decision included range of motion findings for the right ankle, indicating a full range of motion for all disabilities, which were attributed to the January 2008 VA examination. A review of the Virtual VA paperless claims processing system did not reveal another copy of the examination report with the range of motion findings. 

In all events, the Veteran has not responded to the RO's directives and inquiries as to further clarification of this issue. The symptoms of the Veteran's chronic right ankle sprain do not warrant an initial compensable disability rating at any time during the pendency of the appeal. The evidence of record, including lay statements, service treatment records and the January 2008 VA examination, demonstrates that the Veteran's chronic right ankle sprain was productive of the use of a brace and subjective complaints of pain, popping and instability. This disability has not been productive any limitation of motion, including moderate or marked, so as to warrant an initial compensable disability rating under Diagnostic Code 5271. 38 C.F.R. § 4.71a. 

Other appropriate diagnostic codes for application have been considered. However, as the Veteran's service-connected chronic right ankle sprain does not reflect findings of ankylosis, malunion of the os calcis or astragalus, or astragalectomy at any time during the pendency of the appeal, Diagnostic Codes 5270, 5272, 5273 and 5274 do not apply. 38 C.F.R. § 4.71a. 

Absent degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, which is not the case here, a higher disability rating is not warranted under Diagnostic Codes 5003 and 5010. See 38 C.F.R. §§ 4.45, 4.71a, Diagnostic Codes 5003, 5010.  

While the January 2008 VA examination was incomplete, attempts to reschedule the Veteran for new VA examinations in April 2012 and July 2012, per the Board's March 2012 remand instructions, yielded no response from the Veteran. Based on his July 2012 VCAA notice response, it was clear that the Veteran received notice requesting informing him of the attempts to schedule him for an examination; however he indicated no desire to reschedule his examinations or provide additional information, as no attachments had been received along with this response. 

Absent limitation of motion of the right ankle, a compensable disability rating is not warranted under Diagnostic Codes 5271. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. 

The preponderance of the evidence is against the claim. The Veteran's disability has been no more than 0 percent disabling since the effective date of his award, so his rating cannot be "staged" because this represents his greatest level of functional impairment attributable to this condition. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The benefit sought on appeal is accordingly denied.

3. Bilateral Inguinal Hernias

Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, for the reasons discussed below, the Board finds that the preponderance of the evidence is against the claim. 38 U.S.C.A § 5107 (West 2002); Alemany v. Brown, 9 Vet. App. 518 (1996).

The Veteran's bilateral inguinal hernias have been rated as noncompensable under 38 C.F.R. § 4.114, Diagnostic Code 7338 (2012). Under Diagnostic Code 7338, a noncompensable rating is assigned for a hernia that is small, reducible, or without true hernia protrusion, or a hernia which has not been operated on but is remediable. 38 C.F.R. § 4.114, DC 7338. A 10 percent rating is assigned for post-operative recurrent inguinal hernia which is readily reducible and well supported by truss or belt. Id. A 30 percent rating is assigned for a small postoperative recurrent or unoperated irremediable inguinal hernia which is not well supported by a truss or not readily reducible. Id. A 10 percent is added for bilateral involvement, provided the second hernia is compensable. This means that the more severely disabling hernia is to be evaluated, and 10 percent, only, added for the second hernia, if the latter is of compensable degree. See Note following 38 C.F.R. § 4.114, Diagnostic Code 7338. 

In December 2006 the Veteran was hospitalized for bilateral laproscopic hernia repair, with convalescence for 7 days thereafter. A September 2007 Report of Medical History reflects that the Veteran noted a history of rupture/hernia, which was specified as a hernia surgery in 2001 and double hernia in 2006. In a September 2007 Report of Medical Assessment, the Veteran stated that his overall health was worse than compared to his last medical assessment and he had suffered from an additional hernia operation. The September 2007 separation examination revealed normal findings of the abdomen and viscera (including hernia) upon clinical evaluation. 

At a January 2008 VA examination, the Veteran reported having an onset of left inguinal hernia in 2001 and bilateral inguinal hernia repair in December 2006. His current subjective symptoms included having a left inguinal "lump" since his second repair. He stated he was evaluated since then and was told it was normal although it would mildly ache occasionally. No current treatment was reported. A physical examination revealed minimal scar tissue palpable in the inguinal area, however no scar itself was found. The Veteran was diagnosed with status post inguinal hernia repairs with minimal residual scar tissue, otherwise normal. 

The symptoms of the Veteran's bilateral inguinal hernias do not warrant an initial compensable disability rating at any time during the pendency of the appeal. The evidence of record, including lay statements, service treatment records and the January 2008 VA examination, demonstrates that the Veteran's bilateral inguinal hernias were productive of productive of minimal residual scar tissue palpable in left inguinal area and subjective complaints of mild aching and a left inguinal lump. This disability has not been productive of any post operative recurrent, readily reducible hernias which are well supported by truss or belt so as to warrant an initial compensable disability rating under Diagnostic Code 7338. 38 C.F.R. § 4.114. 

As noted, attempts to reschedule the Veteran for new VA examinations in April 2012 and July 2012, per the Board's March 2012 remand instructions, yielded no response from the Veteran. Based on his July 2012 VCAA notice response, it was clear that the Veteran received the notice informing him of the attempts to schedule him for an examination; however he indicated no desire to reschedule his examinations or provide additional information, as no attachments had been received along with this response. 

Other appropriate diagnostic codes for application have been considered. However, as the Veteran's service-connected bilateral inguinal hernia does not demonstrate findings of, a postoperative ventral hernia or femoral hernia and no evidence of other disabilities of the digestive or other organs, rectum or anus, Diagnostic Codes 7203 to 7337 and 7339 to 7354 do not apply. 38 C.F.R. § 4.114. 

Absent any post operative recurrent, readily reducible hernias which are well supported by truss or belt, an initial compensable disability rating is not warranted under Diagnostic Code 7338. See 38 C.F.R. § 4.114, Diagnostic Code 7338. 

The preponderance of the evidence is against the claim. The Veteran's disability has been no more than 0 percent disabling since the effective date of his award, so his rating cannot be "staged" because this represents his greatest level of functional impairment attributable to this condition. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The benefit sought on appeal is accordingly denied.

Extra-schedular Consideration

At no point since May 6, 2008, the date of the Veteran's discharge from military service, have the Veteran's disabiities on appeal, including bruxism, chronic right ankle sprain and bilateral inguinal hernias, been shown to be so exceptional or unusual as to warrant the assignment of a rating, higher than that assigned above, on an extra-schedular basis. See 38 C.F.R. § 3.321.

The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); see also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedural Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008).

If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra.

The schedular criteria are adequate to rate the disability under consideration. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than those assigned based on more significant functional impairment should his disability worsen, which, as discussed above, the Veteran's symptoms do not meet. See 38 C.F.R. §§ 4.71a, 4.114, 4.150, Diagnostic Codes 5271, 7338 and 9913. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).


ORDER

Service connection for a thoracolumbar spine disorder is denied. 

Service connection for a cervical spine disorder is denied. 

Service connection for a right hip disorder is denied. 

Service connection for a left hip disorder is denied. 

An initial compensable disability rating for bruxism is denied. 

An initial compensable disability rating for chronic right ankle sprain is denied. 

An initial compensable disability rating for bilateral inguinal hernias is denied. 




____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs