Citation Nr: 1753367 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-08 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for residuals of frostbitten feet. 2. Entitlement to service connection for residuals of a rectal injury. 3. Entitlement to a rating in excess of 10 percent for lumbar degenerative disc disease. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1987 to April 1990, and from January 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in Columbia, South Carolina in February 2017. The transcript is of record. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. FINDINGS OF FACT 1. The preponderance of the evidence shows the Veteran's bilateral foot disability is etiologically related to service. 2. There is no current diagnosis of a disability related to an in-service rectal tear. 3. Throughout the period on appeal, the Veteran's back disability has not been productive of compensable limitation of motion; or unfavorable or favorable ankylosis; but he has been beset by significant functional impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral foot disability have been met. 38 U.S.C.A. §§ 1101, 1111, 1110, 1153, 5107 (West 2014); 38 C.F.R 3.102, 3.303, 3.304, 3.306, 3.307 (2017). 2. The criteria for service connection for a rectal tear or residuals thereof have not been met. 38 U.S.C.A. §§ 1101, 1111, 1110, 1153, 5107 (West 2014); 38 C.F.R 3.102, 3.303, 3.304, 3.306, 3.307 (2017). 3. The criteria for a rating of 20 percent, but no higher, for a back disability have been met, based on additional compensation for functional impairment. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). The Board has also satisfied its duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. 3.159. VA has obtained all identified and available treatment records for the Veteran. In addition, the Veteran has undergone VA examinations in connection with his claims. The Board finds the examinations adequate, because they included a review of the medical file, an interview of the Veteran, and examination findings supported by rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his appeal. The Veteran has not identified any outstanding evidence that needs to be obtained. Entitlement to service connection for residuals of frostbitten feet Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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 Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309 (2016). Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). December 1988 service treatment records reflect complaints of bilateral foot pain and swelling. The Veteran was assessed with possible frostbite and prescribed bedrest. He has complained of ongoing foot pain since separation, which he attributes to frost bite in service, although he acknowledges he has allayed his symptoms on his own, rather than seeking treatment for a foot condition. The Veteran was afforded a VA examination in March 2013 to explore the etiology of his foot problems. The examiner's notes reflect complaints of foot pain and numbness, the Veteran contending that those symptoms have persisted since service. However, the examiner ultimately furnished a negative nexus opinion, citing the lack of objective evidence of foot problems explicitly related to frost bite. However, the Board finds the examiner failed adequately to consider the Veteran's consistent contentions of foot pain and numbness since service. The Veteran is competent to report his symptoms, including pain and numbness, and, although he is not competent to diagnose frostbite, the Board finds that, coupled with the aforementioned service treatment records, the evidence establishes that the Veteran's current foot problems more likely than not owe to the in-service incurrence of frostbite. As such, and resolving all ambiguity in the Veteran's favor, the Board finds it warranted to grant service connection for a bilateral foot disorder. Entitlement to service connection for residuals of a rectal injury The Veteran asserts that he suffered a rectal injury in service, and that he has been beset by symptoms since that time. Service treatment records show the Veteran was treated for a rectal tear in May 1988. November 1988 service treatment records reflect rectal bleeding "not associated with hemorrhoids," providers noting a degree of rectal swelling likely associated with a rectal mucosal tear. However, the record is silent for post-service complaints of or treatment sought or received for a similar problem, and there is no evidence of a current diagnosis of any disability associated with a rectal tear or residuals thereof. The Veteran was afforded a VA examination to explore the etiology of the claimed disorder in March 2013. The examiner confirmed the Veteran denied any evaluation or treatment for a rectal issue after separation, and denied problems with control of the sphincter. Further, the Veteran conceded he had not seen any blood or experienced any recent rectal tears. In light of the above, and in the absence of any objective evidence to the contrary, the Board finds the Veteran has no current disability related to any in-service rectal tear, and, as such, the preponderance of the evidence is against his claim of entitlement to service connection therefor. The claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A § 5107; 38 C.F.R. § 3.102. Entitlement to a rating in excess of 10 percent for lumbar degenerative disc disease Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying schedular criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As with all claims for VA disability compensation, the Board must assess the credibility and weigh all the evidence, including lay and medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998). The Veteran's lumbar spine disability is currently rated under Diagnostic Code 5242 (degenerative arthritis of the spine), based on limitation of motion as applied under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71(a). He is in receipt of a 10 percent rating for the entire period on appeal. Disability of the spine may be evaluated under either the General Rating Formula or under the formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes (Diagnostic Code 5243), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Id. As there is no evidence of IVDS in the instant case, the criteria of Diagnostic Code 5243 shall not be discussed further. Under the General Rating Formula, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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. Id. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Turning to the evidence of record, the Veteran was afforded a VA examination to assess the nature and severity of his back disability in March 2013. Notes associated with that examination reflect reports of constant pain and frequent flare-ups, the Veteran's low back tender to palpation, with guarding and spasm. However, no radicular symptoms were noted, nor was there weakness or loss of range of motion. The Veteran did report significant pain on range of motion testing. Based on his reports of pain, the Veteran was assessed a 10 percent disability rating for his low back disability. However, the other evidence of record, including the Veteran's credible testimony, reflects symptoms that are more disabling than contemplated by the 10 percent rating assigned. The Veteran has consistently reported to treating providers that his back frequently "locks up," and that he has fallen due to his back symptoms. One documented fall resulted in an elbow fracture. The Veteran has also missed a substantial amount of work due to his back problems, which at one point required an extended unpaid absence under the Family Medical Leave Act. The record reflects a note from a treating provider excusing the Veteran from his work duties during one flare-up in early 2016. The Veteran has treated his back pain with narcotic pain medications, including oxycodone, and has on more than one occasion been prescribed bedrest to allay his symptoms. He also reports he has had to use stool softeners so as to avoid straining and aggravating his low back symptoms. The Board acknowledges that the record is bare of range of motion testing that warrants a compensable rating in this case, and that the 10 percent rating of which the Veteran is already in receipt was assigned in contemplation of his pain symptoms. However, based on recent treatment records showing significant functional loss due to back pain, weakness, and incoordination resulting in multiple falls, the Board finds additional compensation due to functional loss is warranted. The record here reflects frequent, debilitating flare-ups, pain on use, and locking, resulting in obvious and documented functional loss. As such, the Board assigns limited weight to the March 2013 VA examiner's assessments, and more to the consistent, competent, and credible testimony and statements of the Veteran, particularly as they find corroboration in the most recent medical evidence. Thus, the Board finds that an increase to 20 percent, but no higher, is warranted, to accommodate the additional disability caused by functional loss due to the Veteran's service-connected lumbar spine disability. There is no basis for a higher rating. As noted above, the Veteran has never demonstrated a compensable loss of range of motion; rather, he is being compensated for functional loss based on pain during flare-ups and with repeated use over time. Further, there has never been any evidence showing ankylosis at any level of the spine. Hence, the Board finds that an increase to 20 percent, but no higher, is warranted for the entirety of the appeal period. ORDER Entitlement to service connection for a bilateral foot disorder is granted. Entitlement to service connection for a rectal injury is denied. Entitlement to a rating of 20 percent for a lumbar spine disorder, to include compensation for functional loss, is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs