Citation Nr: 1754966	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  11-08 784A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to service connection for left knee disability.

2.  Entitlement to service connection for a cervical spine/ neck/ upper back condition to include degenerative joint disease of the cervical spine, to include as secondary to pes planus and low back disabilities. 

3.  Entitlement to service connection for a left shoulder condition to include as secondary to low back and pes planus disability.

4.  Entitlement to service connection for left upper extremity numbness to include as secondary to low back and pes planus disability.

5.  Entitlement to service connection for seizures to include as secondary to lipoma right temple.

6.  Entitlement to service connection for dizziness, to include as secondary to pes planus and low back disabilities.

7.  Entitlement to service connection for urinary problems/ benign prostatic hypertrophy (BPH), to include as secondary to low back disability.

8.  Entitlement to service connection for skin rashes to include as due to radiation exposure.

9.  Entitlement to service connection for a right knee disability.  

10.  Entitlement to service connection for headaches, to include as secondary to service-connected lipoma right temple, hearing loss, low back and foot disabilities.

11.  Entitlement to a rating in excess of 10 percent for bilateral pes planus.

12.  Entitlement to a compensable rating for bilateral hearing loss.

13.  Entitlement to a compensable rating for lipoma, right temple.

14.  Entitlement to a 20 percent rating for hemorrhoids prior to December 8, 2016.

15.  Entitlement to a rating in excess of 10 percent for low back strain.

16.  Entitlement to a rating in excess of 10 percent for left ankle sprain.

17.  Entitlement to a rating in excess of 10 percent for right ankle sprain.

18.  Entitlement to a total disability rating based on individual unemployability (TDIU).

REPRESENTATION

Appellant represented by:	Daniel Krasnegor, Attorney



ATTORNEY FOR THE BOARD

M.G. Mazzucchelli, Counsel


INTRODUCTION

The Veteran served on active duty from November 1971 to August 1974, December 1980 to December 1985, and February 1986 to February 1992.  

The case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Huntington, West Virginia Regional Office (RO).

The case was previously before the Board in May 2016, when several of the issues on appeal were remanded.

In a February 2017 rating decision, the RO, in pertinent part, granted service connection for depressive disorder and radiculopathy of the right and left lower extremities.  To the extent that the Veteran has filed a notice of disagreement with the initial ratings assigned for his depressive disorder and radiculopathy of the right and left lower extremities, such appeal is contained in the VACOLS appeals tracking system as an active appeal 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 NOD and is currently in the process of adjudicating the appeal.  Action by the Board at this time may serve to actually delay the RO's action on that appeal.  As such, no action will be taken by the Board at this time, and the issues presently before the RO pertaining to the ratings assigned for the awards of service connection for depressive disorder and radiculopathy of the right and left lower extremities, will be the subject of a later Board decision, if ultimately necessary.

Additional evidence added to the claims file after the appeal was recertified to the Agency of Original Jurisdiction (AOJ) in April 2017 is not relevant on the issues decided herein.  See 38 C.F.R. § 20.1304 (c) (2017).

The issues of entitlement to increased ratings for low back strain, right ankle sprain, and left ankle sprain, and entitlement to TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In September 2017, prior to the promulgation of a decision in the appeal, the Board received a request from the Veteran's representative to withdraw the issues of entitlement to service connection for left knee disability; right knee disability; cervical spine/neck/upper back disability; left shoulder disability; left upper extremity numbness; seizures; dizziness; urinary problems/benign prostatic hypertrophy (BPH); skin rashes; and headaches.  

2.  The Veteran's service-connected bilateral pes planus more closely approximates a moderate, rather than severe, level of disability.

3.  Throughout the appeals period, the Veteran's hearing loss was manifested by no worse than level II hearing in the right ear and level III hearing in the left ear.

4.  Throughout the appeals period, the Veteran's right temple lipoma has been essentially asymptomatic, without any of the eight characteristics of disfigurement of the head, face, or neck.

5.  Throughout the appeals period, the Veteran's hemorrhoids have been manifested by persistent bleeding.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the issues of entitlement to service connection for left knee disability; right knee disability; cervical spine/neck/upper back disability; left shoulder disability; left upper extremity numbness; seizures; dizziness; urinary problems/benign prostatic hypertrophy (BPH); skin rashes; and headaches have been met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2.  The criteria for a rating higher than 10 percent for the service-connected bilateral pes planus have not been met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2017).

3.  The criteria for a compensable rating for a bilateral hearing loss disability have not been met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017). 

4.  The criteria for a compensable rating for lipoma of the right temple have not been met.  38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7819 (2017).  

5.  The criteria for a rating of 20 percent for hemorrhoids for the entire appeals period have been met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.114, Diagnostic Code 7336 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b) (2017).  Here, VCAA notice regarding the claims for increased ratings was provided in September 2008.

VA also has a duty to provide assistance to substantiate a claim.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c).  VA has fulfilled its duty to assist the Veteran by obtaining identified and available evidence needed to substantiate the claim, including service treatment records and VA and private treatment records.  In addition, the Veteran was afforded VA examinations in October 2010 and December 2016.  The examinations, taken together, are sufficient evidence for deciding the claims.  The reports are adequate and based upon consideration of the Veteran's prior medical history, describe the disabilities in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations. Thus, VA's duty to assist has been met.

Withdrawn Claims

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105 (2012).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

In a written statement dated in September 2017, the Veteran's representative specifically stated that he wished to withdraw the issues of entitlement to service connection for left knee disability; right knee disability; cervical spine/neck/upper back disability; left shoulder disability; left upper extremity numbness; seizures; dizziness; urinary problems/benign prostatic hypertrophy (BPH); skin rashes; and headaches.  There remain no allegations of errors of fact or law for appellate consideration with regard to those issues.  The Board does not have jurisdiction to review those issues, and dismissal is warranted.

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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  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.  38 C.F.R. § 4.7.

VA has a duty to consider the possibility of assigning staged ratings in all claims for increase.  See Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the 'present level' of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the rating claim has been pending).

Bilateral Pes Planus

Pes planus is rated under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5276 (flatfoot, acquired) as follows.  Mild pes planus (symptoms relieved by built-up shoe or arch support) is rated as noncompensable for unilateral or bilateral disability.  Moderate pes planus (weight-bearing line over or medial to the great toe, inward bowing of the Achilles tendon, pain on manipulation and use of the feet) is rated at 10 percent for unilateral or bilateral disability.  Severe pes planus (objective evidence of marked deformity such as pronation or abduction, accentuated pain on manipulation and use, indication of swelling on use, callosities) is rated at 20 percent if unilateral and 30 percent if bilateral.  Pronounced pes planus (marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances) is rated at 30 percent if unilateral and at 50 percent if bilateral.   

On VA examination in October 2010, the examiner noted examination of "bilateral feet without objective evidence of pes planus.  Small plantar calcaneal spur on the right."

On VA examination in December 2016, the Veteran reported that he now had shoe inserts (orthotics).  He reported that his feet did not bother him when he wore the orthotics; when he did not wear them he had severe pain.  The Veteran reported his foot pain was accentuated on use.  There was no pain on manipulation of the feet, no swelling on use, and no calluses.  The Veteran did not have extreme tenderness of plantar surfaces on one or both feet.  He had decreased longitudinal arch height of both feet on weight-bearing.  There was no objective evidence of marked deformity of either foot and no marked pronation of either foot.  The weight-bearing line did not fall over or medial to the great toe of either foot.  There was "inward" bowing of the Achilles tendon (i.e., hindfoot valgus, with lateral deviation of the heel) of the left foot.  There was no marked inward displacement or severe spasm of the Achilles tendon (rigid hindfoot) on manipulation of either foot.  The examiner noted pain on weight bearing of both feet and pain of both feet with overuse.  The examiner noted that the Veteran would have difficulty walking or standing for long periods of time.

Review of the evidence above shows that the Veteran has not had "severe" pes planus as defined by the rating criteria for a rating higher than the currently-assigned 10 percent at any time during the appeals period.  Specifically, while the December 2016 VA examiner noted complaints of accentuated pain on use, there was no objective evidence of marked deformity such as pronation or abduction, and no objective indication of swelling on use or callosities.  The examiner further noted that the Veteran reported that his feet did not bother him when he used his arch supports.  For these reasons, the Board concludes the Veteran's pes planus disability more closely approximates a "moderate" level of severity than a "severe" level of severity as defined by Diagnostic Code 5276.

The Board notes at this point that the rating schedule provides for numerous ratings for disabilities of the foot under 38 C.F.R. § 4.71a, DCs 5276 through 5284.  The rating schedule specifically provides for pes planus to be rated under DC 5276, and there is no clinical indication that the Veteran's pes planus has caused or contributed to any of the disorders cited in DCs 5277 through 5283.  Further, because there is a specific DC for pes planus, rating under DC 5284 (foot injuries, other) is not appropriate.

The Board has considered the regulations regarding pain.  Pes planus is not rated on the basis of limitation of motion, but DC 5276 provides that "pain on manipulation or use of the feet" is a criterion for the 10 percent rating.  Accordingly, the currently-assigned 10 percent rating appropriately compensates the Veteran for his symptoms of pain on use.

Bilateral Hearing Loss

The Veteran contends that he is entitled to a compensable disability rating for his bilateral hearing loss.  He has been in receipt of a noncompensable rating for that disability since February 1992.  

Hearing loss is rated under Diagnostic Code 6100.  The assigned evaluations for hearing loss are determined by mechanically, so nondiscretionarily, applying the rating criteria to certified test results.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second.  "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four.  This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA.  38 C.F.R. § 4.85, Diagnostic Code 6100.  

On the authorized audiological evaluation in October 2008, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
20
45
55
LEFT
5
5
15
35
60

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 80 percent in the left ear.  The Veteran reported difficulty hearing and understanding conversational speech, especially where background noise was present.

Applying the results from the October 2008 audiogram to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II hearing loss in the right ear and Level III hearing loss in the left ear.  Combining those levels, a zero percent (noncompensable) rating is assigned under Table VII.  38 C.F.R. § 4.85.

On the authorized audiological evaluation in December 2016, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
30
65
70
LEFT
10
15
30
60
70

Speech audiometry revealed speech recognition ability of 96 percent in each ear.  The Veteran described his hearing loss:  "It's hard to understand people.  I can't understand, I can't comprehend. I don't hear the officers call me.  I've gotten into trouble for that.  It's so noisy in there, even in my cell area. I've missed appointments." 

Applying the results from the December 2016 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in each ear.  When both ears have Level I hearing loss, a zero percent (noncompensable) rating is assigned under Table VII.  38 C.F.R. § 4.85.

After a review of the record, the Board finds that the evidence for the entire appeals period reveals a hearing impairment consistent with the currently assigned noncompensable evaluation.  That evaluation is based on the Veteran's average pure tone thresholds and speech recognition scores from the two audiograms of record, and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85.  The evaluation of hearing loss is predicated upon the results of the audiology studies of record.  See Lendenmann, 3 Vet. App. at 349.  In the absence of any additional evidence showing a more severe hearing loss disability, the Veteran's hearing loss has not approximated the criteria for a compensable evaluation.  Accordingly, a compensable disability rating is denied.  

The above determination is based upon consideration of applicable rating provisions.  The October 2008 and December 2016 VA examination reports describe the effects of the Veteran's hearing impairment on his daily life.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  It was noted by the examiners that he has difficulty with understanding speech.  Moreover, the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA's audiometric tests are designed to measure.  Doucette v. Shulkin, 28 Vet. App. 377 (2017).  The Veteran's hearing loss does not produce any other functional effects not contemplated by the rating schedule.  See id.   

For the foregoing reasons, the Board finds that the claim for a compensable disability rating for hearing loss is not warranted.  In reaching this 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, this doctrine is inapplicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Lipoma, Right Temple

The Veteran contends that he is entitled to a compensable rating for lipoma of the right temple.  A noncompensable rating has been assigned for that disability since February 1992.

On VA examination in May 2008 the Veteran reported he had no current complaints related to his previous lipoma of the right temple.  Examination showed tiny, pear-shaped mobile swelling with firm to hard consistency which was nontender under the skin of the right temple area.  This was noted to involve less than one percent of the Veteran's total body surface area and less than one percent of his exposed body surface area.  

On VA examination in December 2016, the examiner noted that the Veteran's lipoma of the right temple had "resolved; I could not visualize or palpate the lesion."

The VA rating schedule contains no Diagnostic Code specifically applicable to rating lipomas.  As such, the Veteran's skin disorder must be rated by analogy to a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  38 C.F.R. § 4.20.

In this case, the Veteran's lipoma is rated under Diagnostic Code 7819-7800.  38 C.F.R. § 4.118.  Pursuant to 38 C.F.R. § 4.27, hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  Diagnostic Code 7819 provides ratings for benign skin neoplasms, which are rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or impairment of function.  38 C.F.R. § 4.118.

Diagnostic Code 7800 provides ratings for scars or other disfigurement of the head, face, or neck.  A 10 percent rating is warranted where there is one characteristic of disfigurement.  Note (1) specifies that the 8 characteristics of disfigurement are as follows: (1) scar 5 or more inches (13 or more cm) in length; (2) scar at least one-quarter inch (0.6 cm) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding 6 square inches (39 square cm); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 square cm); (7) underlying soft tissue missing in an area exceeding 6 square inches (39 square cm); and (8) skin indurated and inflexible in an area exceeding 6 square inches (39 square cm).  Under Diagnostic Code 7800, higher ratings of 30 percent, 50 percent, and 80 percent disabling are warranted for more severe scars or disfigurement.

The Board finds that the Veteran's lipoma of the right temple does not satisfy the criteria for a compensable evaluation.

As noted, the Veteran's lipoma is rated as noncompensable under Diagnostic Code 7819-7800.  38 C.F.R. § 4.118.  A 10 percent rating under that Diagnostic Code requires scarring or disfigurement of the head, face, or neck with one characteristic of disfigurement.  Here, the Veteran denied any complaints related to his previous lipoma on the May 2008 VA examination, and the December 2016 VA examiner found no current objective evidence of the lipoma.  While the May 2008 examiner noted "tiny, pear-shaped mobile swelling with firm to hard consistency which was nontender under the skin of the right temple area," there has been no showing of head scarring or disfigurement that would justify a compensable rating under Diagnostic Code 7800.  

For the foregoing reasons, the Board finds that the claim for a compensable disability rating for lipoma of the right temple is not warranted.  In reaching this 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, this doctrine is inapplicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Hemorrhoids

Service connection for hemorrhoids has been in effect since February 1992; an initial noncompensable rating was assigned in a July 1992 rating decision.  The Veteran did not perfect an appeal of that decision and it became final by operation of law.  The Veteran filed a claim for an increased rating in April 2008.  A February 2017 rating decision increased the rating for hemorrhoids to 20 percent, effective December 8, 2016.  

The Veteran's attorney contends that a 20 percent rating is warranted prior to December 8, 2016, and for 'the entire claims period.'  In a Brief in Support of Claims submitted in September 2017, the Veteran's attorney averred that the 'entire claims period' dates back to February 1992.  Based on a review of the record, the Board finds that the date of the current claim is April 2008, when the Veteran filed an increased rating claim, not February 1992.  

The Veteran's service connected hemorrhoids disability is rated under Diagnostic Code 7336.  

A noncompensable rating is warranted for mild or moderate external or internal hemorrhoids.  A 10 percent rating is warranted where the hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences.  The current 20 percent rating is assigned for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures.  That is the highest rating available under this Code.  38 C.F.R. § 4.114, Diagnostic Code 7336.

In January 2005, the Veteran was seen with rectal bleeding.  A colonoscopy showed moderately large internal hemorrhoids.  

On a May 2008 VA examination, the Veteran reported anal itching, pain and swelling, but denied tenesmus as well as perianal discharge.  He denied fecal incontinence as well as involuntary bowel movements.  The Veteran reported that he had bleeding from the hemorrhoid every two to three days.  He usually saw bright red blood on his tissue paper.  He had been using hemorrhoid suppositories which helped.  The Veteran denied hospitalization or surgery.  On examination, he had two mildly enlarged hemorrhoids, without thrombosis, bleeding, or infection.  Rectosphincteric tone was intact.  The examiner could not feel any internal hemorrhoids, and the examining finger did not contain fecal matter or blood.

On an October 2010 VA examination, the Veteran reported fecal incontinence secondary to hemorrhoids.  He stated this began three to four years earlier with a brownish discharge in his pants when hemorrhoids were swollen.  He reported that the prison doctor took away his suppositories and would not give him pads or diapers.  The Veteran stated that he had to put toilet paper in his rectum.  Digital rectal examination showed normal external sphincter tone.  No obvious stool was noted to outside of the rectum or anus or on clothing.  There was a one centimeter hemorrhoid noted without thrombosis.  The Veteran reported that this was tender, and it was also tender on the actual digital examination.  The assessment was of single hemorrhoid, without objective evidence of fecal incontinence.  

In a statement dated in November 2011 reporting lack of adequate medical attention in prison, the Veteran referred to persistent bleeding and seepage from his rectum.

In a June 2012 inmate request statement, the Veteran reported that:

When I eat even one meal a day I have to keep toilet paper jammed into my rectum to keep my slacks clean and wearable.  Sometimes the toilet paper has to stay there all day and sometimes it is only for a couple of hours.  I have to wash out almost every pair of underwear in the shower before I can send them to the laundry because of the embarrassment this causes and because of the unsanitary conditions it causes.

On VA examination in December 2016, the Veteran reported bleeding daily with frequent seepage.  He had to use pads to keep from staining his underwear.  He also had a history of colon polyps.  The Veteran stated that he had been told he had a large hemorrhoid externally.  The examiner stated that the Veteran's hemorrhoids were large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, and were manifested by persistent bleeding.  Examination showed large external hemorrhoids with excessive redundant tissue.

Resolving reasonable doubt in favor of the Veteran, the Board finds that the 20 percent rating for hemorrhoids is warranted for the entire appeals period.  The evidence of record demonstrates that his level of disability for the entire period is more nearly approximates the criteria for the 20 percent rating as he has consistently reported persistent bleeding due to his hemorrhoid disability.  Thus, a 20 percent rating pursuant to Diagnostic Code 7336 is warranted for the entire appeals period.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7.  This is the maximum schedular rating for hemorrhoids.

There are no additional expressly or reasonably raised issues presented on the record.


ORDER

The issues of entitlement to service connection for left knee disability; right knee disability; cervical spine/neck/upper back disability; left shoulder disability; left upper extremity numbness; seizures; dizziness; urinary problems/benign prostatic hypertrophy (BPH); skin rashes; and headaches, are dismissed.

A rating in excess of 10 percent for bilateral pes planus is denied.

A compensable rating for bilateral hearing loss is denied.

A compensable rating for lipoma, right temple, is denied.

A 20 percent rating for hemorrhoids is granted for the appeals period prior to December 8, 2016.

REMAND

The Veteran contends that he is entitled to increased ratings for his service connected low back and right and left ankle disabilities.  He was provided with a VA examination of those disabilities in December 2016.  The Veteran reported having flare-ups of those disabilities.  The examiner indicated that speculation would be required as to whether pain, weakness, fatigability, or incoordination could significantly limit functional ability with repeated use over a period of time.  

The Veteran's representative has noted that in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims (Court) addressed the adequacy of "mere speculation" opinions.  The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion.  Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of veterans.  If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion.  It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. 

Accordingly, it is not clear that the examiners considered all procurable information before declining to render an opinion as to additional limitation of motion caused by functional loss.  Remand for a new VA examination is required.  38 C.F.R. § 4.2.

Review of the claim for TDIU is deferred pending the adjudication of the increased ratings claims.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to assess the current severity of his low back strain, right ankle sprain, and left ankle sprain disabilities.  The examiner must review the claims file in conjunction with the examination.

The joints involved should be tested for pain on both active and passive motion and in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  These findings are required by VA regulations as interpreted by courts.  If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, or is not medically appropriate, in this case; he or she should clearly explain why that is so.

The examiner should also express an opinion as to whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups.  The examiner should assess the additional functional impairment in terms of the degree of additional range-of-motion loss, if possible.  If the Veteran is not being observed after repetitive use or during a flare-up, the examiner should still estimate any additional functional loss during flare-ups or on repeated use, based on the Veteran's description of his flares' severity, frequency, duration, and/or functional loss manifestations. 

If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups, without resorting to speculation, the examiner must provide an explanation for why this is so.  The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. 

A complete rationale must be provided for all opinions expressed.

2.  Then, readjudicate the appeal.  If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board.

The appellant 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 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).



______________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs