Citation Nr: 1343434 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 12-09 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to an undiagnosed illness. 2. Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to an initial rating in excess of 10 percent for left sacroiliac injury. 4. Entitlement to an initial rating in excess of 10 percent for residuals of a left ankle fracture. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty from January 1987 to March 1990, from September 1990 to May 1991, and from September 1991 to March 1992. These matters come before the Board of Veterans' Appeals (BVA or Board) from August 2011 and October 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In May 2013 the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. During the course of this appeal, in a December 2013 RO decision, the Veteran was denied entitlement to a TDIU, and a notice of disagreement in response to that decision is not of record. As such, the issue of entitlement to a TDIU is not before the Board. The issues of entitlement to an initial rating in excess of 10 percent for PTSD and entitlement to an initial rating in excess of 10 percent for left sacroiliac injury 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. COPD is a known clinical diagnosis, and there has been no demonstration by competent clinical evidence, or credible lay evidence, that COPD was present in service or is related to the Veteran's active service. 2. Throughout the rating period on appeal, the Veteran's left ankle disability has been manifested by complaints of pain and functional impairment comparable to marked limitation of motion. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD have not been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013). 2. The criteria for an initial rating of 20 percent for left ankle disability have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5271 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Duty to Notify Proper notice from VA must inform the claimant and representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The Veteran was notified via a March 2011 letter of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. The Veteran has also been informed of the criteria for establishing service connection due to undiagnosed illness. As the October 2011 rating decision granted service connection for residuals of a left ankle fracture, that claim is now substantiated. As such, the filing of a notice of disagreement as to the disability ratings assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3) (no VCAA notice required because of filing of NOD); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007) (noting that once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, 38 U.S.C. § 5103(a) notice is no longer required). As for rating the Veteran's disability, the relevant disability rating criteria have been provided to the Veteran, including in the April 2012 statement of the case. In a March 2011 VCAA letter the Veteran received notice regarding the assignment of a disability rating and effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson,19 Vet. App. 473 (2006). VCAA notice was completed prior to the initial AOJ adjudications. Pelegrini. Duty to Assist Service treatment records are associated with the claims file, as are identified VA medical records. The Veteran has undergone a VA examination that addresses the issue of service connection for COPD. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to that issue, the Board finds that the VA opinion obtained in this case is more than adequate. The opinion considered the pertinent evidence of record, the Veteran's personal/lay history, and provided a rationale for its conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has also undergone VA examinations that addressed the rating matter presented by this appeal. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examinations obtained in this case are adequate, as they considered the pertinent evidence of record, and included an examination of the Veteran and elicited his subjective complaints and clinical measures and observations reported. The examinations described the Veteran's disability in sufficient detail so that the Board is able to fully evaluate the claimed disability. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). During the May 2013 Board hearing, to assist the Veteran, the undersigned asked questions to determine when the Veteran's breathing problems had first begun and which environmental hazards he had encountered during the Gulf War. The undersigned also essentially informed the Veteran that submitting medical literature could be beneficial to his COPD claim. The undersigned also asked the Veteran to state his dates of treatment to ensure that the record was complete. The undersigned also informed the Veteran that the record would be held open for 60 days in an effort to give the Veteran additional time to submit evidence in support of the appeal. These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. Applicable Laws-Service connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Hickson v. West, 12 Vet. App. 247, 253 (1999). VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability became manifest during service in the Southwest Asia theater of operations, or to a degree of 10 percent or more, not later than December 31, 2016, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): An undiagnosed illness; a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: chronic fatigue syndrome; fibromyalgia; functional gastrointestinal disorders (excluding structural gastrointestinal diseases). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: Fatigue; signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The Board notes that although all the evidence has been reviewed, only the most salient and relevant evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Analysis The Veteran's service treatment records do not reflect any complaints or diagnoses of respiratory disability. The Veteran's April 1991 service separation examination reveals that his lungs were clinically evaluated as normal, and the Veteran specifically denied that he had any shortness of breath or a chronic cough on the corresponding report of medical history. A February 2010 VA treatment record noted that the Veteran had been diagnosed with COPD in February 2008. At a September 2011 VA respiratory examination the Veteran indicated that he currently had a chronic cough that was productive of clear sputum. The Veteran stated that during his service in the Gulf he was exposed to environmental toxins that included dust, sand, exhaust fumes, fuel vapors, and burn pit smoking debris. The Veteran had quit smoking two years prior from a 20 pack a year history. He complained of shortness of breath and dyspnea with moderate exertion. A chest X-ray revealed no active cardiopulmonary process, and PFT revealed a moderately severe airflow obstruction. The diagnosis was COPD. The examiner stated as follows: With regards to the veteran's claimed respiratory condition, secondary to the Gulf War, it is noted that this veteran has been diagnosed with COPD, which is a diagnosable entity with a known pathogenesis in etiology. Diagnosis of the condition was within the past four to five years, which is a number of years following his service in the Gulf War. There is no evidence of COPD being evaluated or treated while on active military duty. The veteran does have a history of cigarette smoking, which is at least as likely as not was a major contributor to his diagnosis of COPD. This examiner can find no specific evidence to support that the veteran's currently diagnosed COPD, claimed as respiratory condition, is due to or a result of any specific environmental or toxic exposure that occurred while on active duty in the service within the Gulf War. At his May 2013 Board hearing, the Veteran indicated that he had breathing issues ever since returning from Saudi Arabia. His commander had a similar problem that was possibly apparently due to chemical toxicity. The Veteran indicated that he had been told that he had a type of breathing problem that was usually found in desert climates. He also stated that he had been near oil wells and an ammunition dump. The Veteran noted that the only time that he had been stationed in the desert was California for a month and a half and his time in Saudi Arabia. He was currently being treated with an inhaler and nebulizers three or four times a day as needed. VA medical records confirm that the Veteran has COPD. As COPD is a known clinical diagnosis, the Veteran does not have an undiagnosed respiratory illness. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a). The Veteran's service treatment records do not tend to show that the Veteran's COPD had its onset during service. As for post-service medical evidence, the medical records do not show or contain any evidence suggesting a relationship between COPD and the Veteran's service. The September 2011 VA examiner's opinion specifically stated that the Veteran's COPD was not related to the Veteran's military service. The Board affords the September 2011 VA examiner's opinion considerable probative value because the examiner provided a compelling and logical rationale for the ultimate conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (explaining that most of the value of a medical opinion comes from its reasoning). Further lending weight to the September 2011 VA examiner's opinion is the fact that the opinion was based on a contemporaneous examination and a review of the Veteran's claims file. The Veteran's assertions that his COPD is related to his active service has been considered. To the extent that this is an opinion of a nexus between COPD and his service, the Board finds his statement is not competent evidence. Whether a layperson opinion as to a nexus or a diagnosis is competent evidence depends on the facts of the particular case. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor for consideration is the complexity of the question to be determined. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example in footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not competent to diagnose a form of cancer). Another factor is whether the question can be answered by personal observation alone. See Layno v. Brown, 6 Vet. App. 465, 496 (1994) (explaining that a layperson is competent to report only that which he or she observed). Whether service in certain geographical areas or exposure to certain hazards can cause COPD is not a question that can be determined by mere observation. The Veteran has provided no explanation as to the nature of such alleged relationship. Given that there is no logical or obvious relationship, it is not a simple question. For these reasons, the Board finds that his opinion in this regard is not competent evidence and therefore not probative of any fact in this case. As for assertions of breathing problems during and since service, the Board notes that the Veteran specifically denied such symptoms on his April 1991 service separation examination. A review of the evidence has revealed that the Veteran's COPD did not have onset during his active service and was not caused by his active service. As the preponderance of evidence is unfavorable to his claim, the Board must deny the claim of entitlement to service connection for COPD. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Increased initial Rating Claim Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Because the instant appeal is from the initial rating assigned with the grant of service connection, the possibility of "staged" ratings for separate periods during the appeal period, based on the facts found, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Left ankle fracture The October 2011 rating decision, in pertinent part, granted service connection for left ankle fracture and assigned a 10 percent rating, effective March 24, 2011. The Veteran's left ankle disability is rated under Diagnostic Code 5271. Under Diagnostic Code 5271, moderate limitation of motion of the ankle warrants a 10 percent disability rating, and marked limitation of motion of the ankle warrants a 20 percent disability rating. The average normal range of motion of the ankle is from zero to 20 degrees of dorsiflexion, and from zero to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. At his September 2011 VA examination, the Veteran indicated that he had ongoing ankle problems including weakness, pain, swelling, and popping with range of motion. He would take Ibuprofen upon flare-ups, which could last for hours with two to three days of mild to moderate severity. He would avoid high-impact activities. Range of motion testing of the left ankle revealed 0 to 15 degrees dorsiflexion (with pain at 15 degrees), and 0 to greater than 45 degrees plantar flexion. The Veteran was able to perform repetitive use testing, but the examiner noted that such testing resulted in some functional loss of 10 degrees of left ankle plantar flexion. Strength testing of the left ankle was 5/5. It was noted that the Veteran had a left lower extremity stress fracture. X-rays of the left ankle revealed a tiny osteophyte of the anterior aspect of the distal tibia. The examiner indicated that the Veteran's left ankle disability impacted his ability to work in that prolonged weight bearing was difficult. At his May 2013 Board hearing, the Veteran indicated that his knee and ankle problems made it difficult for him to walk on flat surfaces. He also indicated that he would need assistance going up and coming down stairs (by using a railing). The pain would also wake him up at night. He had ankle swelling and arthritis but no ankle joint deformity. He did not usually wear an ankle brace and had continual pain. He was unable to push a lawn mower and would have to take breaks when doing weeding around the house. When considering additional limitation of function of the left ankle due to factors such as pain, weakness, incoordination and fatigability, 38 C.F.R. §§ 4.40, 4.45 and 4.59 and DeLuca, 8 Vet. App. at 202, the Board finds that the additional left ankle functional limitation approximates marked limitation of motion of the left ankle and warrants a 20 percent disability rating under Diagnostic Code 5271. The September 2011 VA examiner noted that the Veteran's left ankle disability impacted his work, in that prolonged weight bearing was made difficult by left ankle disability. Also, the Board notes that the Veteran has provided credible testimony concerning left ankle flare-ups that seem to be in excess of those that are consistent with a 10 percent rating. By this decision the Veteran is now in receipt of the highest rating available under Diagnostic Code 5271, and there is no evidence of ankylosis so as to warrant a rating in excess of 20 percent under Diagnostic Code 5270. The evidence shows that significant motion remains in the left ankle, and as such, the left ankle is not ankylosed. The Board notes that there is no evidence of flatfoot, claw foot, malunion or nonunion of tarsal or metatarsal bones or moderately severe foot injuries, and Diagnostic Codes 5276, 5278, 5283, and 5284 are not for application. The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit a more favorable determination. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If so, then the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation fails to reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. Id. At 116. If additional factors are found, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extra-schedular rating. Id. The evidence of record does not reveal that the Veteran's disability picture is so unusual or exceptional in nature as to render the schedular rating inadequate. The Veteran's disability on appeal has been evaluated under the applicable Diagnostic Code that has specifically contemplated the level of occupational and social impairment caused by service-connected left ankle disability. The Veteran's symptoms such as pain and limitation of motion are specifically enumerated under the diagnostic code used to evaluate the disability on appeal. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Service connection for COPD is denied. An initial rating of 20 percent for residuals of a left ankle fracture is granted, subject to the applicable law governing the award of monetary benefits. REMAND As for the issue of entitlement to an initial rating in excess of 10 percent for PTSD, at his May 2013 Board hearing the Veteran essentially indicated that his PTSD had been worsening since his last VA examination for that disability in June 2011. In particular, the Veteran indicated that he had been having recent outburst of anger. When a Veteran asserts that the severity of a disability has increased since the most recent rating examination, as in the present case, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995). Given the Veteran's claims of increased symptomatology since his last VA examination, a new VA examination is warranted to determine the current severity of his PTSD. As for the issue of entitlement to an initial rating in excess of 10 percent for left sacroiliac injury, the Board finds that the September 2011 VA examination is not adequate to rate the Veteran's low back disability. The September 2011 VA examination contains little other than range of motion testing, and did not address the Veteran's symptoms such as complaints of lower extremity radiation. A complete VA examination is warranted to determine the current severity of his left sacroiliac injury disability. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain and associate the Veteran's complete VA treatment records since December 21, 2013. 2. The Veteran should be afforded VA examinations to determine the severity of his service-connected PTSD and left sacroiliac injury disability. The claims file must be made available to the examiners for review in connection with the examinations. All necessary tests and studies should be accomplished, and complaints and clinical manifestations should be reported in detail. 3. Thereafter, readjudicate the issues currently on appeal. If any of the benefits sought on appeal remain denied, the Veteran and representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs