Citation Nr: 1622348 Decision Date: 06/03/16 Archive Date: 06/13/16 DOCKET NO. 14-05 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a left wrist disability. 3. Entitlement to service connection for a right elbow disability. 4. Entitlement to service connection for a right shoulder disability. 5. Entitlement to service connection for a left foot disability. 6. Entitlement to service connection for a left lower leg disability. 7. Entitlement to an initial compensable rating for residuals, left ankle fracture, post open reduction internal fixation. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from February 2004 to September 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran has claimed service connection for PTSD, the record reflects he has recently been diagnosed with an anxiety disorder. Accordingly, the issue has been revised as indicated on the cover page. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). The Board also notes that the Veteran has filed notices of disagreement (NOD) at the RO concerning increased ratings for allergic rhinitis and sinusitis and service connection for sleep apnea as shown in the electronic claims file (VBMS). Such appeals are contained in the VACOLS appeals tracking system as active appeals at the RO. While the Board is cognizant of the Court's decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has fully acknowledged the NODs and is currently in the process of considering the appeals. Action by the Board at this time may serve to actually delay the RO's action on the appeals. As such, no action will be taken by the Board at this time, and the issues presently before the RO pertaining to allergic rhinitis, sinusitis, and sleep apnea will be the subject of a later Board decision, if ultimately necessary The issues of service connection for a psychiatric disability and a left wrist disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A current disability of the right elbow is not shown. 2. A current disability of the right shoulder is not shown. 3. A current disability of the left foot is not shown. 4. A current disability of the left lower leg, separate from the service-connected left fibula (ankle) fracture, is not shown. 5. During the period on appeal, the Veteran's post-operative residuals of left ankle fracture was manifested by almost full range of motion and no functional loss. CONCLUSION OF LAW 1. The criteria for service connection for a right elbow disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2015); 38 C.F.R. § 3.303 (2015). 2. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2015); 38 C.F.R. § 3.303 (2015). 3. The criteria for service connection for a left foot disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2015); 38 C.F.R. § 3.303 (2015). 4. The criteria for service connection for a left lower leg disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2015); 38 C.F.R. § 3.303 (2015). 5. The criteria for an initial compensable rating for residuals, left ankle fracture, status post open reduction internal fixation have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 4.71, Diagnostic Codes 5262, 5271 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). Here, the Veteran's increased rating claim arises from his disagreement with the initial evaluation and that was assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) ((section 5103(a) notice is no longer required after service-connection is awarded). As to the service connection claims, the notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2015). Compliant VCAA notice was provided in October 2010. In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records, and VA examination reports. The Board notes that the Veteran has not been given a VA examination for his claims for service connection for a right elbow disability, right shoulder disability, left foot disability, and left lower leg disability. However, as will be discussed more fully below, there is no competent lay or medical evidence showing current disability pertaining to the right elbow, right shoulder, left foot, or left lower leg (other than service-connected left ankle fracture symptoms). In the absence of evidence of a current disability, a VA examination is not required. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Claims Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2015); 38 C.F.R. §§ 3.307, 3.309 (2015). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that he has disabilities of the right elbow, right shoulder, left foot, and the left lower leg. Service treatment records demonstrate the Veteran had a surgically repaired left distal fibula fracture, which is service connected as residuals, left ankle fracture, post open reduction internal fixation. The Veteran's entrance physical examination noted he had asymptomatic moderate pes planus. There were no complaints, findings, or treatment for pes planus or any left foot or left leg condition during service, other than as related to his service-connected left ankle fracture. In March and April 2007, the Veteran sought treatment for right elbow pain. The diagnosis was tennis elbow. In July 2009, the Veteran complained of symptoms concerning his right elbow for what he believed was tennis elbow. He also complained of right shoulder pain because of extra use of the shoulder to compensate for the elbow. Although the document indicated the Veteran could report to a subsequent sick call for evaluation, there are no further treatment records relating to any of the above-mentioned conditions. Following service, treatment records show no complaints, treatment, findings, or diagnosis for a right elbow disability, right shoulder disability, left foot disability or left lower leg disability (other than the left ankle fracture residuals). Separate and apart from the Veteran's service connected left ankle fracture and its residuals, which is discussed below, the Board finds that the medical evidence does not establish any current right shoulder, right elbow, left foot or left lower leg disability. The cornerstone of any claim for service connection is the presence of a current disability. Although the Veteran received treatment in service for the right elbow symptoms and mentioned right shoulder complaints, establishing service connection requires that a disability be manifested at some point during the course of the claim. Here, despite numerous medical records dated during the course of the claim, there are no complaints, treatment, or findings of any right elbow, right shoulder, left foot, or left lower leg disability other than the left ankle fracture residuals. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). In sum, the preponderance of the competent and probative evidence is against a finding that the Veteran suffers from current disabilities of the right elbow, right shoulder, left foot and left lower leg. Accordingly, the claims for service connection must be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Increased Rating for Residuals of a Left Ankle Fracture The Veteran's service connected residuals, left ankle fracture, post open reduction internal fixation (left ankle disability) is currently rated as noncompensable. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2015); see also 38 C.F.R. §§ 4.45, 4.59 (2015). 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 (2011). The Veteran's left ankle disability is considered under Diagnostic Codes 5262 (impairment of tibia and fibula) and 5271 (limited motion of ankle). Under Diagnostic Code 5262, a 10 percent rating is warranted when a malunion is productive of a slight knee or ankle disability, a 20 percent rating is warranted when malunion is productive of moderate knee or ankle disability; and a 30 percent rating is warranted when malunion is productive of marked knee or ankle disability. Nonunion of the tibia and fibula, with loose motion requiring a brace, warrants a 40 percent rating. Under Diagnostic Code 5271, moderate limitation of motion warrants a 10 percent disability rating and marked limitation of motion warrants a 20 percent disability rating. 38 C.F.R. § 4.71a. The rating schedule does not define the terms "moderate" and "marked." Rather than applying a mechanical formula to make a determination, the Board evaluates all of the evidence such that decisions are "equitable and just." 38 C.F.R. § 4.6. Normal range of motion of the ankle is dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The Veteran was provided a VA examination in August 2011. Following service, the Veteran reported that he had no treatment. The Veteran worked in construction and played semi-pro football the prior summer. He states he did not wear any brace or support other than taping his ankles for football. The Veteran did not report any swelling in the left ankle and was nonspecific as to any localizing ankle pain symptoms. He specifically stated the left ankle does not restrict him from any activity and nothing "hurts real bad." Upon examination, the Veteran's gait is normal. His dorsiflexion 20 degrees, plantar flexion 40 degrees, and inversion and eversion were both 20 degrees. The VA examiner noted the left ankle range of motion was the same as the right ankle. There was no change in motion with repetition. There was no pain, fatigability of endurance, or incoordination of the left ankle. Calf circumference was 41 cm on the left and 39 cm on the right indicating no atrophy on the left. There was no swelling on the left and no localized tenderness. There was no varus or valgus stress of the left ankle. Strength was normal and no ligament laxity was found. X-rays did not show arthritis but instead a normal mortise with the residual of a screw removal across the distal fibula and tibia. The examiner concluded there was no functional impact upon the Veteran's activities of daily living, work, or sports activities because of the left ankle. Treatment records do not show any worsening of the left ankle disability since the VA examination cited above. Based on the above evidence, the Board finds that the Veteran's left ankle disability should be rated as noncompensable at all relevant times. While the Veteran had a 5 degree loss of left ankle plantar flexion, this is also the same range of motion for his plantar flexion for the right ankle. The Veteran did not have ankle tenderness, pain, swelling, abnormal muscle strength, laxity, ankylosis, stress fractures, malalignment, inversion, or eversion. As there also is no evidence of any painful motion or functional impairment, especially considering his ability to work in construction and play semi-pro football without problem, the disability does not more nearly approximate moderate limitation of motion warranting a 10 percent rating under Diagnostic Code 5271. 38 C.F.R. § 4.59; Burton v. Shinseki, 21 Vet App. 1 (2011). As to Diagnostic Code 5262, X-rays do not demonstrate a nonunion or malunion of either the tibia or the fibula as demonstrated by the postoperative X-ray and then again at the VA examination in August 2011. Therefore, the Veteran's left ankle disability does not warrant a compensable rating under Diagnostic Code 5262. The medical evidence does not demonstrate, and the Veteran has not asserted, that his left ankle disability is productive of ankylosis, malunion of the os calcis or astragalus, or astragalectomy. As such, Diagnostic Codes 5270, 5272, 5273, and 5274 are not applicable. In sum, the preponderance of the competent and probative evidence is against the claim for an increased rating for the left ankle disability. The Board has considered whether the Veteran's left ankle disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Peake, 22 Vet. App. 111, 118 (2008). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased, or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, supra. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, including the Veteran's reported symptomatology, the Board concludes that the schedular rating criteria reasonably describe his lumbar spine disability picture. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Court has held that a claim for total disability based upon individual unemployability (TDIU) is part of a claim for an increased rating for a disability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the instant case, as noted the evidence establishes that the Veteran's left ankle disability does not have any functional limitation, including on employment. Accordingly, a claim for TDIU as due to his left ankle disability has not be reasonably raised, and no further action pursuant to Rice is warranted. In reaching the above conclusions 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, that doctrine is not applicable in this case. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57 (1990). ORDER Entitlement to service connection for a right elbow disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for a left lower leg disability is denied. Entitlement to an initial compensable rating for residuals, left ankle fracture, status post open reduction internal fixation is denied. REMAND In service, the Veteran was seen for left wrist pain in July 2009 after a boxing injury. After service, the Veteran complained of and received treatment for the left wrist in November 2010 with a diagnosis of possible neuropathy or left wrist tendonitis. The Veteran received a VA examination in August 2011. The VA examiner diagnosed a left wrist sprain but did not provide an opinion as to whether such disability was related to service. Accordingly, a new examination is warranted. Furthermore, as to the claim for service connection for a psychiatric disability, during service, the Veteran checked off anxiety in a 2005 smoking cessation questionnaire, but on a post deployment questionnaire in 2006, he denied feeling down, depressed, or hopeless. When the Veteran first had a VA examination in 2011, the examiner did not find any mental health disability. Since that time, the Veteran has been diagnosed with an anxiety disorder, including an evaluation by a private mental health psychologist in a December 2015 report, and there is some suggestion in the record that the Veteran may have some PTSD symptoms. Moreover, the private examiner has suggested that the Veteran's service connected disabilities have aggravated his anxiety disorder. However, no rationale was provided. Thus, a new examination is warranted. Additionally, medical records also indicate the Veteran has been treated at the Vet Center, but those records have not been obtained and associated with the file. Relevant ongoing medical records should also be requested. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers, including the Vet Center, who have recently treated him for his claimed psychiatric and left wrist disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After the record development is completed to the extent possible, schedule the Veteran for a VA PTSD and mental disorders examination. The claims file must be reviewed by the examiner in conjunction with the examination. All necessary testing should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should indicate whether the Veteran meets the diagnostic criteria for PTSD, to include as due to the fear of hostile military activity from service in the Persian Gulf. The examiner should also provide a diagnosis for any other psychiatric disability identified. For each disability diagnosed, to include previously diagnosed anxiety disorder, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service or is causally related to service. In explaining the reason for this decision, the examiner should address the Veteran's positive response to anxiety on the smoking cessation questionnaire in 2005, and the December 2015 opinion by a private therapist, as well as medical literature provided by that therapist. If the examiner determines that the Veteran's psychiatric disorder is not related to service, then the examiner should offer an opinion as to whether it is at least as likely as not that the disability was caused by the Veteran's service connected disabilities. If not caused by the service-connected rhinitis, sinusitis, and left ankle fracture residuals, the examiner is asked to provide an opinion as to whether the psychiatric disability has been permanently worsened beyond normal progression (versus a temporary exacerbation of symptoms) by the service connected conditions. If the psychiatric disability is permanently worsened beyond normal progression, the examiner should attempt to identify the baseline level of psychiatric disability and quantify the level of worsening due to the service-connected conditions. A rationale for all opinions expressed should be provided. 3. After the record development is completed, provide the Veteran with a VA wrist examination. The claims file must be reviewed by the examiner in conjunction with the examination. All necessary testing should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner is asked to provide a diagnosis for any left wrist disability identified. For each such disability diagnosed, including the strain diagnosed in 2011, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service or is causally related to service, to include the in-service complaints concerning the left wrist. The examiner should explain the reasons for the opinions provided. 4. After the development requested is completed, readjudicate the claims for service connection. If the benefit sought remain denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. The Veteran 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 2014). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs