Citation Nr: 1759901 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 10-01 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for residuals of a left wrist fracture. 2. Entitlement to service connection for diabetes mellitus (diabetes). 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for a low back disability, to include a herniated disc. 5. Entitlement to service connection for bilateral pes planus. 6. Entitlement to service connection for peripheral neuropathy. 7. Entitlement to service connection for a heart condition. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1977 to June 1984. The Veteran also had National Guard service from May 1976 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction of the Veteran's claims file now resides with the Roanoke, Virginia RO. In March 2015, the Board remanded the case for further development. The case is now again before the Board for appellate review. The Board finds that there has been substantial compliance with its March 2015 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) The issue of entitlement to service connection for bilateral pes planus is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. At no time during the claim period did the Veteran display ankylosis of the left wrist. 2. Although the Veteran currently has hypertension, hypertension was not shown in service, did not manifest to a degree of 10 percent or more within one year from the date of separation from service, and is not otherwise related to service. 3. The Veteran currently has diabetes. However, diabetes was not shown in service, did not manifest to a degree of 10 percent or more within one year from the date of separation from service, and is not otherwise related to service. 4. The Veteran currently suffers from a disability of the low back. However, a low back disability was not shown in service, did not manifest to a degree of 10 percent or more within one year from the date of separation from service, and is not otherwise related to service. 5. The competent evidence of record fails to show that the Veteran currently has peripheral neuropathy. 6. The competent evidence of record fails to show that the Veteran currently suffers from a heart condition. CONCLUSION OF LAW 1. The criteria for a disability rating in excess of 10 percent for residuals of a left wrist fracture have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5214, 5215-5010 (2017). 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for diabetes have not been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 5. The criteria for service connection for peripheral neuropathy have not been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017); Brammer v. Derwinski, 3 Vet. App. 223 (1992). 6. The criteria for service connection for a heart condition have not been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017); Brammer v. Derwinski, 3 Vet. App. 223 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSION Left Wrist As indicated above, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for his service-connected residuals of a left wrist fracture. In support of this determination, the Board first notes that the Veteran's disability is rated as 10 percent disabling under Diagnostic Code 5215-5010. Diagnostic Code 5010 is the code for arthritis due to trauma. This code directs VA to rate such disabilities as degenerative arthritis. Diagnostic Code 5003 for degenerative arthritis directs VA to rate the disability on the basis of limitation of motion pursuant to an appropriate diagnostic code for the specific joint involved. In this case, the Veteran's 10 percent rating was assigned due to limitation of motion of the wrist under Diagnostic Code 5215. A 10 percent rating is the maximum rating under Diagnostic Code 5215. As the Veteran currently is in receipt of a maximum rating on the basis of limitation of motion of the wrist, the only way he could receive an even higher rating is pursuant to Diagnostic Code 5214-applicable for wrist ankylosis. Under Diagnostic Code 5214, favorable ankylosis in 20 to 30 degrees dorsiflexion will warrant the assignment of a 30 percent rating for the major (dominant) wrist and a 20 percent rating for the minor (non-dominant) wrist. Ankylosis in any other position except favorable will warrant the assignment of a 40 percent rating for the major wrist and a 30 percent rating for the minor wrist. Lastly, unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation, will warrant the assignment of a 50 percent rating for the major wrist and a 40 percent rating for the minor wrist. The evidence of record demonstrates that the Veteran's left wrist is his minor wrist. In light of the above principles, the Board finds the record devoid of evidence demonstrating that the Veteran has had ankylosis of the left wrist at any time during the claim period. For this reason, the Board cannot assign a disability rating in excess of 10 percent. The Board emphasizes in this regard that because 10 percent is the maximum rating for limitation of motion, as opposed to favorable or unfavorable ankylosis, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not applicable. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Accordingly, the Board must deny the Veteran's increased rating claim. Peripheral Neuropathy and Heart Condition Firstly, as a general matter, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Further, peripheral neuropathy and heart disabilities may be classified as "chronic diseases" eligible for presumptive service connection under 38 C.F.R. § 3.309(a). The Board may consider presumptive service connection for "chronic diseases" on three bases: (1) chronicity during service, (2) continuity of symptomatology since service, and (3) manifestations to a degree of 10 percent disabling or more within one year of the Veteran's separation from service. 38 C.F.R. §§ 3.303(b), 3.307(a)(3) (2016); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Regarding the first requirement of service connection, there must be evidence of a present disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability . . . in the absence of a proof of present disability there can be no claim."). The requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). In this case, after reviewing the evidence of record, the Board finds that the Veteran's peripheral neuropathy and heart condition claims must be denied as there is no evidence that he has a current diagnosis of either peripheral neuropathy or a heart condition. Specifically, the evidence of record does not show an active diagnosis or treatment for peripheral neuropathy or a heart condition at any time during the pendency of the appeal, or at any time proximate to the filing of the claim. As such the appeal must be denied and the benefit of the doubt principle is not for application as there is no doubt to be resolved. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hypertension, Diabetes, Low Back Disability Unlike the Veteran's peripheral neuropathy and heart condition claims, the evidence of record does demonstrate that the Veteran currently has diagnoses of hypertension, diabetes, and a low back disability. Specifically, the Veteran has repeatedly been diagnosed with hypertension and diabetes throughout recent VA treatment records. Additionally, in an October 2008 VA treatment record, the Veteran was diagnosed with osteoarthritis. A separate February 2004 VA treatment record illuminates that this osteoarthritis was of the lumbar spine. However, moving beyond the Veteran's current diagnoses, the record is absent: (1) any treatment or complaints of hypertension, diabetes, and a low back disability in service; (2) a showing of any manifestations of these disabilities to a degree of 10 percent or more within the first post-service year; or (3) a showing of a continuity of symptoms since service. Accordingly, the Board cannot grant service connection for these disabilities on a direct or presumptive basis. See 38 C.F.R. §§ 3.303, 3.307, 3.309. In specific regard to his hypertension claim, a January 1994 VA treatment record indicated that the Veteran was first diagnosed and treated for hypertension in 1992-approximately 8 years after service. Further, the record reveals that the Veteran first received treatment for diabetes in approximately 1994-about 10 years after discharge. Lastly, a January 1994 VA treatment record indicates that the Veteran first reported back problems in January 1992 as a result of work injury. In sum, as the record does not demonstrate that (1) the Veteran complained of or received treatment for hypertension, diabetes, and a low back disability in service; (2) he displayed manifestations of these disabilities to a degree of 10 percent or more within the first post-service year; or (3) he showed a continuity of symptoms since service, the preponderance of the evidence is against granting these claims. Accordingly, they must be denied. ORDER A disability rating in excess of 10 percent for residuals of a left wrist fracture is denied. Service connection for hypertension is denied. Service connection for diabetes is denied. Service connection for a low back disability is denied. Service connection for peripheral neuropathy is denied. Service connection for a heart condition is denied. REMAND Although the Board regrets the additional delay, further development is required prior to adjudication of the Veteran's claim for service connection for bilateral pes planus. Specifically, throughout the pendency of the claim, the Veteran was not provided a VA medical opinion or examination regarding pes planus. The Board finds that remand is warranted so that a medical opinion may be obtained. Firstly, the evidence of record demonstrates that the Veteran currently has pes planus. Specifically, a March 2011 VA treatment record noted that the Veteran suffered pes planus as a foot deformity. Next, there is an indication that the Veteran's pes planus may be associated with his military service. Specifically, May 1976 and February 1977 examinations conducted while the Veteran was serving in the National Guard did not list any medical issues except a scar on the Veteran's right wrist. However, following his National Guard service, a clinician marked pes planus as a now-existent medical problem during the Veteran's Army entrance examination a mere few months later in September 1977. Accordingly, the Board finds that VA has not yet satisfied its duty to assist and must provide the Veteran with a medical opinion to determine the etiology of his pes planus. Lastly, given the need to remand the foregoing claim for a VA medical opinion, any outstanding VA treatment records should also be obtained-particularly those dated since April 2015. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file-particularly those dated since April 2015. If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such. 2. After the above is completed to the extent possible, have an appropriate VA clinician review the entire claims file, including a copy of this Remand, to determine the nature and etiology of the Veteran's pes planus. If the clinician determines an examination is needed, one should be scheduled. Following review of the claims file, the clinician should address whether it is at least as likely as not (50 percent probability or more) that the Veteran's pes planus was incurred in, caused by, or is otherwise related to service. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. For any opinion provided, a complete rationale must be provided. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if in order. 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. §§ 5109B, 7112 (2012). ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs