Citation Nr: 1328612 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 09-46 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral knee disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for a headache disability. 4. Entitlement to service connection for a psychiatric disability manifested by panic attacks. 5. Entitlement to an initial evaluation in excess of 20 percent for right ankle degenerative changes, status post fracture, to include whether a separate compensable evaluation is warranted for right ankle neurological symptoms. 6. Entitlement to an initial evaluation in excess of 10 percent for right shoulder rotator cuff impingement with arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from November 1995 to March 1998. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Jurisdiction of the claim has been transferred to the Winston-Salem, North Carolina (RO). Bifurcation of a claim generally is within the Secretary's discretion. See Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions); Holland v. Brown, 6 Vet. App. 443, 447 (1994). In this case, the Board chooses to decide the issue of entitlement to an evaluation in excess of 20 percent for the orthopedic manifestations of the Veteran's right ankle disability and remand the issue as to whether the Veteran is entitled to a separate compensable evaluation for any neurological manifestations of the right ankle disability. As such, the issue of entitlement to a separate evaluation is warranted for right ankle neurological symptoms is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have a bilateral knee disability that is in any way related to her active duty service. 2. The Veteran does not have a low back disability that is in any way related to her active duty service. 3. The Veteran does not have a headache disability that is in any way related to her active duty service. 4. The Veteran does not have a psychiatric disability manifested by panic attacks that is in any way related to her active duty service. 5. At no time during the appeal period has the Veteran's service-connected right ankle disability been manifested by ankylosis. 6. At no time during the appeal period has the Veteran's service-connected right shoulder disability been manifested by limitation of arm motion at shoulder level or below, or ankylosis. The Veteran is right handed. CONCLUSIONS OF LAW 1. A bilateral knee disability was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 2. A low back disability was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 3. A headache disability was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 4. A psychiatric disability manifested by panic attacks was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 5. The criteria for an initial evaluation in excess of 20 percent for right ankle degenerative changes, status post fracture, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5270, 5271 (2012). 6. The criteria for an initial evaluation in excess of 10 percent for a right shoulder disorder have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5024 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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). With respect to the service-connection issues, the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in April 2008 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, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recent readjudicated in January 2013. With respect to the increased rating issues, as service connection, initial ratings, and effective dates have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. She was provided the opportunity to present pertinent evidence and testimony although she did not report for her hearing. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Service Connection Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The service treatment records are absent knee, low back, headache, or psychiatric complaints, findings or diagnoses during service. On the clinical examination for separation from service, the Veteran's head, spine, lower extremities, and psychiatric health were all evaluated as normal. On the Report of Medical History completed by the Veteran in February 1998 in conjunction with her separation physical, the Veteran denied ever having swollen or painful joints, frequent or severe headaches, arthritis, rheumatism, or bursitis, and nervous trouble of any sort. Thus, there is no medical evidence that shows that the Veteran suffered from a chronic knee disability, a chronic low back disability, a chronic headache disability, or a chronic psychiatric disability during service. When a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Such evidence is lacking here. As noted above, there is no evidence of psychosis during service or at any time thereafter. Thus, a psychiatric or psychotic disorder was not noted during service. In light of the lack of any relevant history reported between the Veteran's date of discharge from service and current symptomatology, service connection is not warranted under 38 C.F.R. § 3.303(b). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The post-service medical records are absent any complaints of or treatment for her knees or low back. Thus, the medical evidence fails to show that the Veteran currently suffers from a current knee disability or low back disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In the absence of competent medical evidence that a current chronic knee disability or a current chronic low back disability exists and that either was caused by or aggravated by the Veteran's military service, the criteria for establishing service connection for a bilateral knee disability and a bilateral low back disability have not been established. 38 C.F.R. § 3.303. The Veteran has been diagnosed with chronic headaches and migraine headaches. The Veteran has also been diagnosed with bipolar affective disorder, intermittent explosive disorder, and PTSD. The Board notes that service connection for PTSD was denied by a January 2010 rating decision that was not appealed. Thus, service connection for PTSD is not before the Board. The remaining question, therefore, is whether there is medical evidence of a relationship between the Veteran's current diagnoses and her military service. In this case, no medical professional has ever related either of these conditions to the Veteran's military service. There is no evidence establishing that the Veteran had migraines or psychiatric symptoms in service. As noted above, the Veteran denied ever having frequent or severe headaches and nervous trouble of any sort. Thus, the record is absent evidence of in-service headaches and psychiatric symptoms as well as competent evidence of a nexus between her active military service and currently diagnosed migraines and mood disorder. The Board must also consider the Veteran's own opinion that she has headaches and psychiatric symptoms related to her active service. The Board notes that VA treatment records indicate that the Veteran reported in September 2012 that she had had chronic headaches for at least 10 years. In this case, the Board does not find her competent to provide an opinion regarding the etiology of her chronic headaches, migraines, or psychiatric disorders as this question is of the type that the courts have found to be beyond the competence of lay witnesses. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and the statements of the Veteran cannot be accepted as competent medical evidence. Moreover, her 10 year history does not date the onset in service. The Board does find the Veteran competent to report on such observable symptomatology as headaches and feelings of panic and anxiety, but in light of the Veteran's denial of symptoms during service as well as the lack of evidence of headaches and psychiatric symptoms for years following service, her statements are not considered probative. Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. Increased 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. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. The Veteran is appealing the original assignments of disability evaluations following awards of service connection for right ankle degenerative changes, status post fracture, and right shoulder rotator cuff impingement with arthritis. As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Right Ankle The Veteran's service-connected right ankle disability has been assigned the maximum evaluation of 20 percent disabling, pursuant to 38 C.F.R. § 4.71a, Diagnostics Code 5271. Under this code, marked limited motion of the ankle warrants a 20 percent rating. 38 C.F.R. § 4.71a. Normal range of motion for the ankle is from 0 to 20 degrees dorsiflexion and from 0 to 45 degrees plantar flexion. 38 C.F.R. § 4.71, Plate II. In order for an evaluation higher than the assigned 20 percent to be warranted, there must be ankylosis of the right ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2012). By definition, ankylosis contemplates a total absence of joint mobility. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint", Stedman's Medical Dictionary 87 (25th ed. 1990)). On VA examination in November 2008, the Veteran demonstrated right ankle dorsiflexion of zero degrees with pain at the end range and plantar flexion of 50 degrees without pain. Inversion was 15 degrees with pain at 10 degrees, and eversion is 20 degrees without pain. There was no change in active or passive range of motion following repeat testing times three in the right ankle against resistance. On VA examination in September 2012, the Veteran demonstrated right ankle dorsiflexion to 15 degrees with pain at 10 degrees and plantar flexion to 30 degrees with pain at 25 degrees. After a minimum of three repetitions, right ankle dorsiflexion was to 15 degrees and plantar flexion to 30 degrees. The VA examiner noted no ankylosis. Thus, the record does not warrant assignment of a disability rating in excess of 20 percent at any time during the rating period on appeal as the evidence does not demonstrate that the Veteran has ankylosis of her right ankle to warrant a 30 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5270. Consideration has also been given to whether an increased rating is warranted on the basis of functional impairment and pain. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012); DeLuca, 8 Vet. App. at 204 -06. The Board acknowledges the Veteran's complaints of pain, stiffness, and swelling. At the November 2008 VA examination, the Veteran complained of pain, worse in the winter, morning stiffness, and swelling with prolonged standing. At the November 2008 VA examination, the Veteran denied any specific flares in the right ankle for the prior year. At the September 2012 VA examination, the Veteran did not report flare-ups impacting the function of the right ankle. Most importantly, there is no objective clinical indication that the Veteran has right ankle symptoms causing functional limitation to a degree that would support an evaluation in excess of 20 percent. As such, the Board finds that an initial evaluation in excess of 20 percent for the Veteran's service-connected right ankle disability is not warranted at any time during the appeal period. Right Shoulder The Veteran's right shoulder disability has been evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010. Arthritis due to trauma under Diagnostic Code 5010 substantiated by x-ray findings is rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under Diagnostic Code 5003, degenerative arthritis 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, with a minimum rating of 10 percent to be assigned for each major joint affected. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. A distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes. The Veteran is reported to be right handed. Thus, the Veteran's right shoulder will be considered the major (dominant) shoulder. 38 C.F.R. § 4.69 (2012). Limitation of motion of the major shoulder to shoulder level warrants a 20 percent evaluation. Motion to midway between the side and shoulder level warrants a 30 percent evaluation. Motion no more than 25 degrees from the side warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal (full) range of motion of the shoulder is forward elevation (flexion) to 180 degrees; abduction to 180 degrees, external rotation to 90 degrees and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. On VA examination in November 2008, the Veteran demonstrated flexion and abduction to 150 degrees and extension and adduction to 35 degrees. Internal rotation was to zero degrees and external rotation was to 50 degrees with pain. The examiner noted, "DeLuca was not performed in the right shoulder due to the degree of pain which the patient was already experiencing with the first set of repetitions." On VA examination in September 2012, the Veteran demonstrated right shoulder flexion and abduction to 180 degrees with no objective evidence of painful motion and no additional loss of motion after repetitive testing. The Veteran did not report flare-ups impacting the function of the shoulder or arm. The examiner noted no diagnosis for the right shoulder and that the right shoulder was without any symptoms. The Veteran denied any pain, and right shoulder examination was normal. Thus, the record does not warrant assignment of a disability rating in excess of 10 percent at any time during the rating period on appeal as the evidence does not demonstrate that the Veteran's right shoulder has motion limited to shoulder level to warrant a 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5201. There is also no evidence of ankylosis of the right shoulder. 38 C.F.R. § 4.71a, Diagnostic Code 5200 (2012). Consideration has also been given to whether an increased rating is warranted on the basis of functional impairment and pain. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012); DeLuca, 8 Vet. App. at 204 -06. The Board acknowledges the Veteran's complaints of pain on examination in November 2008. There is, however, no objective clinical indication that the Veteran has right shoulder symptoms causing functional limitation to a degree that would support an evaluation in excess of 10 percent. As such, the Board finds that an initial evaluation in excess of 10 percent for the Veteran's service-connected right shoulder disability is not warranted at any time during the appeal period. Other considerations The Board has given consideration to whether an extra schedular rating is warranted pursuant to 38 C.F.R. § 3.321(b). The Board cannot assign such rating and further sees no reason to recommend referral of the matter. The rating criteria used to evaluate the right shoulder and ankle contemplate the complaints entered and there is no showing of extraordinary symptoms or complaints. Similarly there is nothing to suggest that application of the regular schedular provisions is rendered impractical. As such, further extraschedular consideration is not indicated. Additionally, there is no argument that the appellant is unemployable due to the service connected disorders at issue. She has reported trouble with the left shoulder and with other disorders, but it is not alleged or demonstrated that the service connected disorders at issue herein render her unemployable. As such the total rating issue is not raised. ORDER Entitlement to service connection for bilateral knee disability is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a headache disability is denied. Entitlement to service connection for a psychiatric disability manifested by panic attacks is denied. Entitlement to an initial evaluation in excess of 20 percent for right ankle degenerative changes, status post fracture is denied. Entitlement to an initial evaluation in excess of 10 percent for right shoulder rotator cuff impingement with arthritis is denied. REMAND With respect to whether a separate compensable evaluation is warranted for any right ankle neurological symptoms, it is the Board's opinion that the Veteran be scheduled to undergo an additional VA examination. At the November 2008 VA examination, the examiner noted that there was decreased sensation to pinprick, light touch, and monofilament testing in the right sural nerve distribution along the lateral aspect of the lower leg and the lateral aspect of the foot. In addition, the examiner noted that there was an equivocal Tinel over the sural nerve above the ankle. At the September 2012 VA examination, muscle strength testing during ankle motion showed slightly diminished strength but did not indicate if there were any neurological symptoms related to the right ankle. A separate compensable rating based on neurological impairment, if there is a showing of separate functional impairment, may be warranted. It is unclear here whether there is separate functional impairment related to neurological abnormality. Thus, examination is indicated to determine if there is foot or toe impairment separate from that contemplated in the service connected orthopedic ankle disorder. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to ascertain the existence and severity of any neurological symptoms of the Veteran's service-connected right ankle degenerative changes, status post fracture. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should identify any neurological manifestations of the Veteran's service-connected right ankle disability, identify all nerve(s) involved and degree of impairment to include all symptoms and manifestations (whether the involvement is only sensory (neuralgia), or if it is characterized by organic changes such as loss of reflexes, muscle atrophy, sensory disturbances, constant pain (neuritis) as well as a characterization of the symptoms as to whether they represent complete paralysis or incomplete paralysis. If no significant neurological impairment is found, or if it does not cause a separate functional impairment, that should also be explained. The Veteran is hereby notified that it is her responsibility to report for the examinations 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 claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 2. After the above development requested has been completed, the RO should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner documents his/her consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 3. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs