Citation Nr: 1751140 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 09-04 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for bilateral leg disability, to include as secondary to service-connected disabilities. 3. Entitlement to service connection for bilateral foot disability, to include as secondary to service-connected disabilities. 4. Entitlement to a rating in excess of 20 percent for lumbosacral strain. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1995 to December 1999. He was honorably discharged. This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In September 2010, the Veteran testified at a videoconference hearing before Judge Shane Durkin, who has since retired. A transcript of that hearing is of record. By correspondence dated June 2017, the Veteran was informed that he had 30 days to request an appeal with a different judge. No response was received. In August 2011, the Board remanded the Veteran's claims in order to obtain VA examinations and additional medical records. There has been substantial compliance with these remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance"); Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Thus, the Board will proceed to review and decide the claim with respect to the issues now on appeal based on the evidence that is of record. In a May 2017 rating decision, the RO continued the Veteran's 20 percent disability rating for lumbosacral strain and held that evidence submitted regarding service connection for a bilateral foot disorder as secondary to service-connected lumbosacral strain was not new and material. The Veteran has not filed a notice of disagreement for those issues. FINDINGS OF FACT 1. The weight of the evidence is against a finding of a nexus between the Veteran's service and a left ankle disability. 2. The weight of the evidence is against a finding of a nexus between the Veteran's service and a bilateral leg disability, to include as secondary to service-connected disabilities. 3. The weight of the evidence is against a finding of a nexus between the Veteran's service and a bilateral foot disability, to include as secondary to service-connected disabilities. 4. The Veteran's lumbosacral strain is not characterized by forward flexion of the thoracolumbar spine of 30 degrees or less or ankylosis of any part of the spine. 5. The Veteran's service-connected disabilities alone are not of sufficient severity to produce unemployability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2016). 2. The criteria for service connection for bilateral leg disability, on a direct basis or secondary to service-connected disabilities, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016). 3. The criteria for service connection for bilateral foot disability, on a direct basis or secondary to service-connected disabilities, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016). 4. The criteria for a disability rating in excess of 20 percent for lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.71a, Diagnostic Code 5237 (2016). 5. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the Veteran's claims for service connection, by correspondence, including that dated March 2009, the Veteran was informed of the evidence and information necessary to substantiate the service connection claims, the information required of the Veteran to enable VA to obtain evidence in support of the claims, the assistance that VA would provide to obtain evidence and information in support of the claims, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. This notice was completed prior to the initial RO adjudication of the claims. The duty to notify has been met. Regarding the Veteran's claim for increased rating, the claim arises from disagreement with a disability rating that was assigned following the grant of service connection. Courts have held that 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). The Veteran's service treatment records are associated with the claims file, as are VA and private medical records. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. Further, the VA medical examinations and opinions are adequate, as they are predicated on a substantial review of the record and medical findings, and consider the Veteran's complaints and symptoms. 38 C.F.R. § 3.159(c)(4); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the Board finds VA's duty to assist has been met. 38 C.F.R. § 3.159(c)(4). II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-14 (1998). An increase in severity of a nonservice-connected disease or injury shall not be service-connected if it is due to the natural progression of the nonservice-connected condition. See Allen v. Brown, 7 Vet. App. 439 (1995). Regarding a left ankle disability, a January 2015 VA medical opinion states that it is less likely than not that this condition was incurred in or caused by service. The rationale for this opinion is that there is no evidence of chronicity or continuity and that the Veteran's in-service ankle injury required no further treatment, suggesting that the condition was acute, transitory, and resolved. Regarding secondary service connection, the examiner further states that there is "[n]o past or present leg or foot condition present." These medical opinions are probative because they are based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). Consequently, the Board finds that the evidence weighs against granting service connection for a left ankle disorder, to include as secondary to service-connected disabilities. Regarding a bilateral leg and bilateral foot disability, a January 2015 VA medical opinions states that these conditions are less likely than not incurred in or caused by service. The primary basis for this assessment is that there is no evidence of a past or current bilateral leg or bilateral foot disability. For the same reason, the examiner opines that these conditions were not proximately due to or the result of service and were not aggravated beyond their natural progression by an in-service event, injury, or illness. Also, there is no evidence of a right knee injury prior to service. The lack of a current disability is also fatal to the Veteran's claim of entitlement to service connection for a bilateral leg and bilateral foot disability on a direct basis and as secondary to service-connected disabilities. These medical opinions are probative because they are based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez, 22 Vet. App. at 301-02. Therefore, the Board finds that the Veteran is also not entitled to service connection for a bilateral leg and bilateral foot disability, on a direct basis or a secondary to service-connected disabilities. In reaching these conclusions, the Board has considered the Veteran's lay statements, as contained in VA examinations and the September 2010 hearing, about the pain he experiences in his feet, legs, and ankles. The Veteran is considered competent to testify about these symptoms because such symptoms are within their knowledge and personal observations of lay witnesses. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Unfortunately, lay testimony is not sufficient to establish a nexus in this case because a left ankle disability, bilateral leg disability, and bilateral foot disability are not the types of conditions about which a lay witness can opine as to nexus and etiology. Because the preponderance of the evidence is against service connection, the Board it is without authority to grant the claims. See 38 U.S.C.A. § 7104 (West 2014); Taylor v. West, 11 Vet. App. 436, 440-41 (1998). III. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under the current rating criteria, disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. Evaluations for intervertebral disc syndrome are to be performed either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, Note 6. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. A 60 percent disability rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. The Veteran is rated for lumbosacral strain at an initial rating of 10 percent under Diagnostic Code 5237 from December 22, 1999. In May 2008, the RO granted the Veteran an increased rating of 20 percent from January 30, 2008, the date that the claim was filed, and the Veteran is appealing that decision. Because the claim is a non-initial claim, the Board will consider evidence of symptomatology from one year prior to when the claim was filed. 38 C.F.R. § 3.400(o). See A.B. v. Brown, 6 Vet. App. 35 (1993) (holding that a claim remains in controversy where less than the maximum available benefit is awarded unless the Veteran expresses an intent to limit the appeal to a specific disability rating). A March 2008 VA examination indicates forward spinal flexion of 87 degrees and no indications of ankylosis. An April 2009 VA examination indicates forward spinal flexion of 70 degrees, also with no indication of ankylosis. A January 2015 VA back examination indicates forward spinal flexion of 90 degrees, no ankylosis, no arthritis, and no intervertebral disc syndrome. An April 2017 VA back examination indicates forward spinal flexion of 70 degrees, no ankylosis, and no intervertebral disc syndrome. These symptoms are not consistent with a rating in excess of 20 percent under Diagnostic Code 5237 or Diagnostic Code 5243. When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016). 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). Such inquiry is not to be limited to muscles or nerves. Limitation-of-motion determinations are, if feasible, to be expressed in terms of the degree of any additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint's range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). If a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In the March 2008 VA examination, the examiner reports "lower back pain, stiffness, and fatigability" but "[n]o lower back weakness or lack of endurance." Additionally, "[f]lare-ups cause moderate additional limitation of motion and moderate functional impairment." Also in this examination, as previously noted, forward flexion of the Veteran's back is 87 degrees. In summary, the Veteran's forward flexion is only three degrees less than normal, which would normally only qualify him for a 10 percent rating, there is no weakness or lack of endurance, and the severity of any negative DeLuca symptoms are either moderate or unspecified. Taken together, this evidence weighs against an additional increased rating under DeLuca. In the April 2009 VA examination, the examiner states that the "DeLuca provisions cannot be evaluated with medical certainty. The examiner notes that the Veteran "may have further decrease in active range of motion during flare-ups" and that "the degree will depend on how much discomfort the patient feels at that time." The examiner also indicated "some variation of range of motion with repetitive range," although how much was not specified, no "poor endurance," and "no apparent poor incoordination." There is some indication of pain with repetitive use. Forward spinal flexion is 87 degrees. In summary, there is an unspecified degree of pain and possible limitation of motion with flare-ups and repetitive use, but the Veteran's forward flexion is ten degrees outside of the range appropriate for a 20 percent rating, there is a finding of no "poor endurance," and there is a finding of "no apparent poor incoordination." Taken together, this evidence weighs against an additional increased rating under DeLuca. In the January 2015 VA back examination, the Veteran reports pain during flare-ups but no functional loss or functional impairment. The examiner indicates no evidence of pain with weight bearing, that the Veteran is able to perform repetitive use testing without loss of function or range of motion after three repetitions, and that neither pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time. The Veteran displays normal forward spinal flexion. This evidence weighs against an additional increased rating under DeLuca. In the April 2017 VA back examination, the Veteran reports severe pain during flare-ups but no functional loss or functional impairment. The Veteran is able to perform repetitive use testing without loss of function or range of motion after three repetitions. There is no indication of less movement than normal, more movement than normal, weakened movement, instability of station, or disturbance of locomotion. Forward spinal flexion is 70 degrees. All of this evidence weighs against an additional increased rating under DeLuca. The strongest evidence supporting an increased rating under DeLuca is the evidence of pain on weight bearing. Taken together, the evidence as a whole weighs against an additional increased rating under DeLuca. The evidence does not support additional staged ratings for any time period on appeal. For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. Lastly, the Board finds that the issue of an extraschedular rating has not been raised by the record, and will not consider referral. Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). IV. TDIU The Veteran is claiming entitlement to individual unemployability due to service-connected disability (TDIU). VA regulations indicate that when a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, constitutes a single disability under § 4.16(a). The same is true for disabilities resulting from common etiology or a single accident. In addition to the foregoing, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Marginal employment is not considered to be the same as substantially gainful employment. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16(b) for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). The Veteran's service-connected disabilities are lumbosacral strain at 20 percent, strain with chronic right hip pain at 20 percent, left wrist sprain at 10 percent, right testicle cyst at 10 percent, right lower extremity radiculopathy associated with lumbosacral strain at 10 percent, and right lower extremity radiculopathy associated with lumbosacral strain at 10 percent with a combined rating of 60 percent. The lumbosacral strain, right hip strain, right testicle cyst, right lower extremity radiculopathy, and left lower extremity radiculopathy all relate to the same incident. See April 2009 VA joints and spine examination; March 1999 service treatment record. With the bilateral factor associated with Veteran's radiculopathy, the total disability rating for these incidents comes to 60 percent. See 38 C.F.R. §§ 4.16(a), 4.26 (2016). The Veteran meets the percentage rating standards to be considered eligible for individual unemployability. 38 C.F.R. § 4.16(a). In June 2015, the Veteran filed a formal application for TDIU, stating that he became too disabled to work in October 2009. However, the evidence suggests that the Veteran was gainfully employed around the time that he made that statement and that his unemployment was not due to service-connected disabilities. According to a February 2010 VA vocational rehabilitation note: "The [V]eteran states he is not working, having been fired from his job in the summer. He states he was underpaid and decided not to go to work one day. When he showed up the next day, he was terminated." His unemployment, then, was not due to service-connected disabilities. A January 2011 VA social work note states that "[h]e is currently unemployed and has had contact with a vocational counselor." He appears to have remained unemployed through 2014. See November 2014 VA social work note. One reason for continued unemployment was the need for surgery. See September 2011 VA medical note. For at least part of this period, the Veteran was a stay-at-home dad. See February 2011 VA podiatry note. The Veteran was working again in 2015, according to the following note in a January 2015 VA back examination report: "Veteran states he is an electrician by trade. His current job is heavy manual labor. He lifts, pulls and climbs. . . . Moderate to light as well as sedentary employement [sic] is reasonable." Similarly, a January 2015 VA ankle examination states: "Veteran does martial arts regularly to stay stretched out and strengthen his ankles. . . . [V]eteran states he has pain with his current position of an electrician." An April 2017 VA back examination indicates that the Veteran's current occupation is "electrician" and that he experienced "2-4 weeks work time lost in last 12 months," although he "has not worked in the last 6 months." This last statement suggests that he was working in October 2016. A May 2017 VA psychology note states: "he reports that he is . . . currently searching for a job as an electrician." These records indicate that the Veteran is not unemployable solely because of his service-connected disabilities. The loss of this job in 2009 was not due to service-connected disabilities. He worked consistently from January 2015 to October 2016. He regularly does karate and as of May 2017 is actively looking for work. Additionally, the January 2015 VA back examination states that "[m]oderate to light as well as sedentary employement [sic] is reasonable." Given the overall disability picture and the Veteran's history of employment, the evidence as a whole establishes that the Veteran retains the ability to obtain and maintain employment. Entitlement to TDIU is not warranted. ORDER Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for bilateral leg disability, to include as secondary to service-connected disabilities, is denied. Entitlement to service connection for bilateral foot disability, to include as secondary to service-connected disabilities, is denied. Entitlement to a rating in excess of 20 percent for lumbosacral strain is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs