Citation Nr: 1800042	
Decision Date: 01/02/18    Archive Date: 01/19/18

DOCKET NO.  13-06 752	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1.  Entitlement to an evaluation in excess of 20 percent for a lumbar spine disability.

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

3.  Entitlement to service connection for a right foot/ankle disorder, claimed alternatively as reflex sympathetic dystrophy (RSD) and tarsal tunnel syndrome (TTS), to include pes planus.

4.  Entitlement to service connection for Gulf War Syndrome, manifested by conditions including chronic fatigue syndrome; irritable bowel syndrome; fibromyalgia; muscle pain in the legs, arms, and back; headaches; menstrual disorder; total hysterectomy; hypertension; vertigo; residuals of stroke, and sleep disorder.

REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Marcus J. Colicelli, Associate Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The Veteran had active duty service from February 1986 to February 1989, and from March 1990 to May 1997.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2010 and November 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.  

The Veteran initially requested a Board hearing before a Veterans Law Judge in her January 2013 substantive appeal.  However, she withdrew that request for a Board hearing in a November 2014 correspondence, and her prior representative submitted a December 2014 informal hearing presentation instead.

In May 2015, the Board remanded the Veteran's claims for additional development, including VA examinations for the back and right leg disorders, updated medical records, and the issuance of a statement of the case (SOC) with regard to the assorted Gulf War Syndrome related issues.  Subsequently, the Veteran perfected her appeal with the timely filing of a VA Form 9 in December 2016.  The agency of original jurisdiction (AOJ) substantially complied with the May 2015 remand directives, and no further development is necessary.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Veteran's appeal previously included claims for service connection for posttraumatic stress disorder (PTSD), bilateral hearing loss (BLHL), and tinnitus.  In April 2016 and October 2016 rating decisions, the AOJ awarded entitlement for these issues.  The Board finds that these decisions constitute a full award of the benefits sought on appeal and, thus, terminated the appeal with respect to these matters.  See Grantham v. Brown, 114 F.3d 1156, 1158.  

Throughout the appeal, the Veteran has alternatively claimed entitlement to service connection for a right leg/foot/ankle condition manifesting in similar symptomatology, to include diagnoses of tarsal tunnel syndrome (TTS) and reflex sympathetic dystrophy (RSD).  See i.e. December 2014 Argument in Support of NOD ("Less than one year after her discharge from the military, [Veteran] began filing claims for service connection for the symptoms she experiences associated with the right ankle and foot. [Veteran] labeled her disabilities as 'RSD' and 'tarsal tunnel syndrome.'").  As treatment records including the June 2016 VA examination indicates a diagnosis of pes planus relative to the Veteran's right foot/ankle symptoms, the Board has recharacterized the Veteran's claim more broadly as a claim for service connection for a right foot/ankle disorder, in order to encompass the above.  See generally Clemons v. Shinseki, 23 Vet. App. 1 (2009).

Concerning the issue of entitlement to service connection for a sleep disorder, the Board notes that the Veteran was previously denied service connection for this issue in a March 2003 RO decision.  However, subsequent to this ruling, service treatment records that were previously missing from the claims file were procured.  These service treatment records were not associated with the claims file at the time of March 2003 RO decision.  Compare March 2003 Rating decision ("Service Medical Records from December 22, 1989, through June 17, 1997) with January 2010 rating decision ("Service treatment records from February 18, 1986, through May 5, 1997.")  Ordinarily, once a VA decision becomes final, the Veteran must submit new and material evidence to reopen the claim.  38 C.F.R. § 3.156 (2017).  However, where, as here, VA has issued a decision on a claim, and subsequently received relevant official service department records that were not associated with the claims file at the time of the VA decision at issue, VA will reconsider the claim rather than require the submission of new and material evidence.  Service records related to a claimed in-service event, injury, or disease are relevant service department records.  38 C.F.R. § 3.156(c)(1)(i).  Accordingly, because these missing records apparently included the evidentiary critical physical entrance examination of the Veteran from 1986, her original claim of service connection for sleep disorders will be considered on the merits.

The issues of entitlement to a right foot/ankle disorder, and for Gulf War syndrome, to include as manifested by and/or entitlement to chronic fatigue syndrome; irritable bowel syndrome; fibromyalgia; muscle pain in the legs, arms, and back; headaches; menstrual disorder; total hysterectomy; hypertension; vertigo; and residuals of stroke, and a sleep disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's lumbar spine disability is manifested by symptoms of pain and flare-ups that result in functional impairment more nearly approximating limited flexion of the thoracolumbar spine to greater than 30 degrees, but not greater than 60 degrees.

2.  With full consideration of the Veteran's educational and occupational background, the evidence of record supports a finding that her service-connected disabilities combine to render her unable to secure and follow substantially gainful employment.


CONCLUSIONS OF LAW

1.  Throughout the entire period on appeal, the criteria for a disability rating in excess of 20 percent for the Veteran's low back disability have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.14, 4.59, 4.71a, Diagnostic Code (DC) 5243 (2017).

2.  The criteria for TDIU have been met.  38 U.S.C. §§ 511(a), 5107(b) (2012); 38 C.F.R. §§ 3.400, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

VA has a duty to provide specific notification and assistance to the Veteran under the Veterans Claims Assistance Act (VCAA) Pub. L.  No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified as amended at 38 C.F.R. § 3.159 (2016)). 

With respect to the claimed entitlement to an increased rating for the low back disability, the Veteran has not raised any argument with respect to any issue of notice.  Regarding the duty to assist, pursuant to the May 2015 Remand, the Veteran was assisted in the procurement of additional medical records and was afforded a VA medical examination for her low back in May 2016.  The Board notes that the most recent VA examination is arguably are not within the parameters espoused by Correia v. McDonald, 28 Vet. App. 158 (2016).  Specifically, the Board acknowledges that ROM on passive motion was not recorded in the May 2016 examination.  However, the Board finds that active range of motion on weight bearing, which was reported, is intrinsically worse or more limited/difficult than any passive or non-weight bearing testing and, thus, any failure to report those findings is harmless, and thus substantial but not strict compliance can be found.  An examiner's failure to strictly comply with remand instructions does not necessarily render the examination noncompliant.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002) (holding there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order").  Moreover, the Board notes the concept of judicial efficiency weighs against further development of this matter, having been previously examined by the VA two years ago in May 2014, yielding nearly identical findings.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution").

Furthermore, the Board observes that the Veteran has raised no argument in protest against these acknowledged issues, and prior examinations are adequate because they include all information needed to rate the disability and there is no allegation or evidence that the disability has worsened since the most recent VA examination.  Cf. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). 

The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

Increased Rating

In a January 2010 rating decision, the RO considered all pertinent medical evidence received for the year prior to the Veteran's August 2009 increased rating claim, and awarded a 20 percent rating increase for the lumbar spine disability, effective August 28, 2009.  The Veteran seeks an increased rating for her chronic strain of the lumbosacral spine.  She asserts that her disability is more severe than what the current rating represents.

Applicable Laws

Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Separate DCs identify the various disabilities.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history and reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board has considered the entire record, including the Veteran's VA clinical records.  These show complaints and treatment, but will not be referenced in detail.  The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).  Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disabilities.

Under the General Rating Formula for Diseases and Injuries of the Spine, a rating of 20 percent is warranted when there is 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 is 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, DC 5242, General Rating Formula for Diseases and Injuries of the Spine (2017). 

A rating of 40 percent is warranted when there is forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  Id.  

A rating of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a rating of 100 percent is warranted for unfavorable ankylosis of the entire spine.  Id. 

Under 38 C.F.R. § 4.59, painful motion is considered limited motion even though a range of motion is possible beyond the point when pain sets in.  Hicks v Brown, 8 Vet. App. 417, 421 (1995). 

When evaluating a musculoskeletal disability, VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination.  38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995).  These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  The examiner should also determine the point, if any, at which such factors cause functional impairment.  Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59.

In addition to the General Rating Formula, the Formula for Rating IVDS Based on Incapacitating Episodes provides for a 20 percent rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; and a 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, DC 5243.  

An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1).

Any neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes.  See Note (1).

Facts 

VAMC medical treatment records dated throughout the appeal period reflect intermittent complaints of back pain, treated with OTC medication and creams, a back brace, and resulting in tenderness and some diminished range of motion (ROM) without radiation.  See i.e. October 2012 VAMC Orthotics Lab ("requesting a replacement back brace with additional lumbar support... major complaint low back pain, beltline, no radiation, increased with standing / walking / helped with otc creams"); July 2014 VAMC Primary Care note ("Limited lumbar ROM flexion extension due to pain").

The Veteran was afforded a VA examination for her lower back in November 2009.  She reported chronic low back pain without radiation, treated with OTC medication and that she has not been able to work at her cafeteria job because of her pain since October 2009.  The noted no flare-ups, incapacitating episodes during the last year, bowel or bladder incontinence, or the use of assistive devices.  Physical examination revealed normal gait, no ankylosis, other sensory deficit, or other deformity.  The Veteran demonstrated 50 degrees of forward flexion, extension of 10 degrees, with pain throughout on both.  Right and left lateral flexion was to15 degrees and left and right lateral rotation was 20 degrees with pain throughout.  Pain was expressed throughout physical evaluation, but not before or after.  The examiner concluded that the Veteran "is employable in light to [sic] sedentary work capacity.  She does not require ambulatory assistive device.  There is no clinical evidence of any neurological deficit, motor weakness, atrophy due to lumbar strain."

The Veteran was afforded a VA examination in May 2014.  Following a review of the record and in-person examination, the examiner identified a diagnosis of degenerative disc disease with spondylosis.  The Veteran reported shooting pain to the lower back, associated with burning, numbness, and occasional coldness, exacerbated by prolonged walking.  She treated it with ibuprofen, and use of a back brace and walker.  The Veteran reported flare-ups with increased standing and walking.  Physical evaluation revealed abnormal ROM with pain exhibited on forward flexion to 50 degrees, extension, to 10 degrees, right/left lateral rotation and right/left lateral flexion to 25 degrees, and pain on weight bearing and repetitive testing.  Post-test flexion was to 40 degrees, extension to 5 degrees, right/left lateral flexion and rotation to 20 degrees.  Additional functional loss was noted as less movement, pain, tenderness, and interference with sitting, standing, and/or weight bearing.  The examiner noted muscle spasms and guarding with a normal gait.  The examiner identified normal muscle strength, and neurological testing revealed "mild" radiculopathy of the bilateral lower extremities consisting of mild numbness, paresthesias and intermittent pain of the sciatic nerve.  The examiner found no evidence of intervertebral disc syndrome and noted that the Veteran regularly used both a brace and walker.  The examiner opined that the Veteran's low back pain would affect her employability, noting she last worked in 2010 due to her inability to "stand or walk for extended period of time, and cannot lift or bend over."

The Veteran was most recently afforded a VA examination in May 2016.  Following a review of the record and an interview with the Veteran, diagnoses of degenerative disc disease with arthropathy and disc degeneration were noted, as were findings of radiculopathy and/or neurological impact specifically not found.  Medical history as noted in the prior examinations was identified, noting exacerbation due to walking or standing more than a few minutes, with daily flare-ups, of which she gets minimal relief from back brace and walker.  The Veteran reported flare-ups resulting in "increased pain and stiffness."  Physical evaluation revealed abnormal ROM with pain exhibited on forward flexion to 55 degrees, extension to 10 degrees, right lateral flexion to 25 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees and left lateral rotation to 10 degrees.  The examiner identified tenderness in the L3 vicinity and muscle spasms, guarding and tenderness without abnormal gait or contour.  

Neurological testing revealed no radiculopathy of the lower extremities.  The examiner found no IVDS or ankylosis, but acknowledged her regular use of a wheelchair and brace and constant use of a walker.  The examiner identified that her back pain would impact her employability, identifying that she worked as a food and home aid assistant until 2010, but "lost her job from both locations because of her back pain."  

Regarding the queries posited in the Board remand, the examiner identified that there was no vertebral fracture present, thus no loss of height, and while there is tenderness and guarding in the L3 locale, it is not enough to cause an abnormal gait or contour.  The examiner further explained that the Veteran did not have any ankylosis, IVDS, radiculopathy, or other neurological dysfunction.  Regarding radiculopathy, the examiner identified the seemingly contradictory findings of the 2014 examiner, but opined that such findings were not present otherwise in the medical history, nor were they present on the current exam.  The examiner noted that these symptoms could be a function of her RSD diagnosis which "can certainly cause neuropathic pain that can radiate down the right leg."  As to employability, the examiner cited to "contradictory evidence in her SSA forms and medical records" postulating that "the veteran's back condition alone would preclude employment but it is more likely than not that it would restrict her to sedentary work without lifting, bending and stooping."  

Analysis

The Veteran is competent to give evidence about what she experiences; for example, she is competent to discuss current pain and other symptoms experienced.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Furthermore, the Board finds the Veteran's testimony to be credible.  See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  However, the totality of evidence indicates that the Veteran does not meet the criteria to warrant a rating higher than 20 percent for her lumbar spine disability. 

For a 40 percent evaluation, forward flexion of the thoracolumbar spine must be actually or functionally limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine must be present.  As identified above, VA examinations conducted in 2009, 2014, and 2016, and medical treatment records throughout the period on appeal fail to demonstrate any ROM findings reflective of 30 degrees or less, to include functional limitation.  Although additional functional limitation was noted, the Veteran's forward flexion was never demonstrated to less than 50 degrees; nor was ankylosis was present.  There is no other evidence which indicates that the Veteran has forward flexion of the thoracolumbar spine to at least 30 degrees or less, or any ankylosis involving the thoracolumbar spine.  Thus, the Board finds that the current 20 percent evaluation appropriately contemplates the degree of limited range of motion that may exist during periods of exacerbation, even considering the principles of 38 C.F.R. § 4.40 and 4.45. 

In reaching this determination, the Board has considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§ 4.40 and 4.59, as well as the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment attributable to pain, particularly in light of the fact that the Veteran contends her disability is essentially manifested by daily pain and limited movement. 

Alternatively, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes allows a rating of 40 percent where there is intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  However, such a finding has not been noted on any of the three VA examinations of record, nor in the medical documentation associated with the claims file.  As there has been no documentation in the post-service medical records of incapacitating episodes requiring bed rest, which were prescribed by a physician, for at least a period of 4 weeks, a higher rating based on intervertebral disc syndrome is not warranted.

The current regulations also allow for separate neurological evaluations.  Note (1) to the General Rating Formula for Disabilities of the Spine, indicates that associated objective neurological abnormalities should be rated separately under an appropriate Diagnostic Code.  In this regard, the Board notes the May 2014 VA examiner's finding of bilateral lower extremity radiculopathy.  However, this finding is an unsupported outlier when compared to the October 2009 and May 2016 VA examinations and the Veteran's treatment history which fail to corroborate a finding of radiculopathy.  Moreover, the Board finds significant the May 2016 VA examiner's explanation regarding the past diagnosis of radiculopathy.  The May 2016 VA examiner indicated in his report that there were no symptoms due to radiculopathy in the lower extremities, nor were such findings present anywhere other than the May 2014 VA examination.  He opined that these symptoms were most likely due to the Veteran's other neurological diagnoses which could cause similar symptoms.  The Board finds that the 2016 VA examination, as well as the clinical records showing no evidence of radiculopathy of the lower extremities, to be highly probative.  The record does not otherwise include a competent and credible diagnosis of radiculopathy.  In addition, the Veteran has consistently denied any bowel or bladder dysfunction related to her service-connected lumbar spine disability.  Therefore, a separate rating for associated neurological abnormalities is not warranted.

In conclusion, the Board finds that a schedular rating in excess of 20 percent is not warranted for the service-connected lumbar spine disability at any time during the appeal period.  The Veteran's currently assigned 20 percent rating is commensurate with the symptoms manifested during the period of appeal.

Other Considerations

Lastly, neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record with regard to the claim for increased rating of the low back.  See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)."

TDIU

The Board finds that the Veteran is entitled to TDIU due to the combined impact of her service connected disabilities on her employability.   

At the time of the application for TDIU in December 2009, the Veteran's service-connected disabilities included: posttraumatic stress disorder (PTSD), rated as 70 percent disabling from August 28, 2009; chronic strain of the lumbosacral spine, rated as 20 percent disabling from August 28, 2009; and a noncompensable evaluation for her history of right lower extremity cellulitis.  The combined evaluation for compensation as of August 28, 2009 was 80 percent.

A total disability rating may be assigned, where the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  As such, she meets the schedular rating threshold for a TDIU at the time of her application.  Thus, the main question before the Board is whether the Veteran's service-connected disabilities alone render her unable to obtain substantially gainful employment. 

In December 2009, the Veteran submitted a TDIU application (VA Form 21-8940).  She indicated that she had a high school education and three years of college.  She also indicated that she was last employed full-time in 2005 as a corrections facility administrator, and left her last job in food service for Baltimore County due to disability in October 2009.  The Veteran listed "chronic back pain" as the disability resulting in her unemployability as it hindered her standing, walking and sitting.  

Regarding the impact of her disabilities on her daily life, as identified above the record includes multiple VA medical examination reports which consistently show that the Veteran cannot maintain gainful employment at least in part because of her chronic low back pain and resulting inability to stand, walk, or sit for any prolonged period of time.  Regarding her service-connected psychiatric disability, a June 2017 private psychiatrist opined that the Veteran's psychiatric condition rendered her totally impaired both socially and occupationally as "the combination of all the symptoms of each disorder render this patient totally impaired for any give occupation or social pursuit."  Similarly, the physician who authored an August 2010 Maryland State Medical Director Workability Evaluation found that the Veteran was unable to continue her current position as a cafeteria working, opining that due to her disabilities including her lower back and lower extremity pain, "she will not likely be able to perform the essential duties of her position on a consistent and reliable basis in the foreseeable future."  

As commented upon by the May 2016 VA examiner, the Board acknowledges that the June 2012 SSA disability decision did not determine that the Veteran's service-connected low back disability was the predominate reason for the decision.  However, the pain from her service-connected low back and her service connected lower right extremity were factors discussed in the determination.  Regardless, the decision of whether a veteran is employable is a legal determination, rather than a medical determination.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (holding that "applicable regulations place responsibility for the ultimate TDIU determination on the VA [adjudicator], not a medical examiner.").  The Board has the ultimate authority to decide whether or not the Veteran is employable and finds that the evidence indicates the Veteran was unable to maintain employment due to her service-connected disabilities, including low back pain, cellulitis, and PTSD.  

Considering the Veteran's education, job history, and the severity of her service-connected disabilities, the Board finds that the evidence is at least in equipoise, and entitlement to TDIU is granted.


ORDER

Entitlement to a rating in excess of 20 percent disabling for lumbar spine disability, is denied.

Entitlement to TDIU is granted, subject to the laws and regulations governing the award of monetary benefits.
REMAND

The Veteran is seeking entitlement to service connection for a right foot/ankle disorder, and for Gulf War syndrome and/or illnesses and symptoms associated with exposure to environmental hazards during the Persian Gulf War including, chronic fatigue syndrome; irritable bowel syndrome; fibromyalgia; muscle pain in the legs, arms, and back; headaches; menstrual disorder; total hysterectomy; hypertension; vertigo; residuals of stroke, and a sleep disorder.

Regarding her claimed right foot/ankle disorder, as noted in the Introduction the Veteran was afforded a VA examination recently in June 2016.  The examiner concluded that the Veteran suffered from a pre-existing diagnosis of pes planus, not tarsal tunnel or RSD.  Despite this conclusion, the electronic claims file does not, in fact, include the Veteran's 1986 entrance examination, and it is unclear from the examination report that her entrance physical was reviewed prior to this determination.  

Nevertheless, although the examiner found the Veteran's bilateral pes planus to be a congenital disease, he did not determine whether it clearly and unmistakably preexisted service.  He opined that this congenital disease preexisted service, but noted the symptoms in her feet started after service.  The service treatment records show treatment for hallux valgus, and various complaints in the right foot/ankle.  Additionally, although the examiner provided a negative secondary opinion regarding the Veteran's right foot complaints and her service-connected lumbar spine and right leg disabilities, he failed to provide a rationale for this opinion.  In sum, the opinions provided by the 2016 examiner are insufficient to decide the claim for a disability of the right foot/ankle.  

With regard to the remaining claims for service connection for Gulf War Syndrome, including as due to undiagnosed illness, on a direct basis, or as a medically unexplained chronic multisymptom illness (MUCMI), the Board finds that a medical opinion is needed as to whether the Veteran's claimed signs and symptoms may be considered a MUCMI.  A medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  38 C.F.R. § 3.317(a)(2)(i)(B).  A medical opinion should be obtained upon remand that specifically considers whether the claimed signs or symptoms of a chronic fatigue syndrome; irritable bowel syndrome; fibromyalgia; muscle pain in the legs, arms, and back; headaches; menstrual disorder; total hysterectomy; hypertension; vertigo; residuals of stroke, and sleep disorder are due to a MUCMI that is defined by a cluster of signs or symptoms, or are individual pathologies which are or are not traceable to active duty service.  

As articulated by the Veteran's prior counsel, to date, she has not been afforded a VA examination to discuss the issue of MUCMI and how it related both to her current condition and her in-service complaints and treatments for variously diagnosed pain syndromes.  See December 2014 BVA Hearing memorandum ("since filing her first claim in 1997, [Veteran] has been describing her disability as a cluster of symptoms consistent with Section 3.137's description of a chronic multisymptom illness including: signs/symptoms involving skin, muscle pain, joint pain, neurological signs/symptoms and sleep disturbance...in addition to all of the evidence pointing to a chronic multisymptom illness, further substantiates the fact that the VA had an obligation to evaluate [Veteran] claim under 38 C.F.R. 3.317...furthermore, after years of workup by various specialists, leg ankle and foot symptoms were finally diagnosed as fibromyalgia, which is specifically defined by the regulations as one example of a medically unexplained chronic multisymptom illness.")

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Associate with the claims file any and all outstanding service treatment records, to include the February 1986 induction examination and all treatment records dated prior to 1989 not already associated with the record.  All attempts should be documented, including a formal finding of unavailability of any missing records.

2.  Obtain updated VA and private medical records of treatment or evaluation of right leg/ankle/foot, chronic fatigue syndrome; irritable bowel syndrome; fibromyalgia; muscle pain in the legs, arms, and back; headaches; menstrual disorder; total hysterectomy; hypertension; vertigo; and residuals of stroke, and a sleep disorder, that are not already on file, and associate them with the electronic claims file.

3.  Schedule the Veteran for an appropriate VA examination as to her claimed GWS and right leg/ankle/foot for opinions as to whether such are related to military service, including as due to her documented in-service complaints of variously diagnosed extremity pain and discomfort.  The Veteran contends her GWS is manifested by chronic fatigue syndrome; irritable bowel syndrome; fibromyalgia; muscle pain in the legs, arms, and back; headaches; menstrual disorder; total hysterectomy; hypertension; vertigo; and residuals of stroke, and a sleep disorder. 

The VA examiner should conduct all necessary testing to rule out a diagnosis for the claimed signs and symptoms: right leg/ankle/foot, chronic fatigue syndrome; irritable bowel syndrome; fibromyalgia; muscle pain in the legs, arms, and back; headaches; menstrual disorder; total hysterectomy; hypertension; vertigo; and residuals of stroke, and a sleep disorders.

The VA examiner should characterize the Veteran's claimed disabilities as belonging to one of four disability patterns: (1) undiagnosed illness, (2) a diagnosable, but medically unexplained chronic multisymptom illness of unknown etiology, (3) a diagnosable chronic, multisymptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology. 

With regard to any diagnosed disorder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current disability is related to service, to include the Veteran's service and chemical exposure in the Persian Gulf.

With regard to the right foot/ankle/leg disorder the examiner is asked to reconcile the various diagnoses of record, which RSD and tarsal tunnel, and pes planus, among others.  In reconciling these diagnoses the examiner is asked

a) Does the evidence clearly and unmistakably show (i.e., it is undebatable) that the Veteran's right leg disorder existed prior to service?  The examiner is reminded that lay statements by a Veteran concerning a pre-existing condition are not sufficient to rebut the presumption of soundness, even when such is recorded by medical examiners.

b) If the answer to a) is yes, does the evidence clearly and unmistakably show (i.e., it is undebatable) that the pre-existing condition was not aggravated by service or that any increase in disability was due to the natural progression of the disorder?  The examiner must consider the Veteran's lay statements and in-service diagnoses.  Whether these statements make sense from a medical point-of-view must be considered and discussed in the opinion, to include a discussion of the June 2016 VA examination. 

c) If the answer to either a) or b) is no, then answer the following:

Is it at least as likely as not (50 percent probability or greater) that the Veteran's disorder(s) had its onset in service or is otherwise attributable to the complaints and treatments of right leg/ankle/foot pain in service? 

Is it at least as likely as not that any right ankle/foot disorder is caused or aggravated by her service-connected lumbar spine disability or residuals of right leg cellulitis?  Again, the Veteran's lay statements in this regard must be considered.

Any opinions expressed by the examiner must be accompanied by a complete rationale.

4.  Readjudicate the claims on appeal in light of all of the evidence of record, including evidence received since the supplemental statements of the case.  If the appeal remains denied, the Veteran should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period of time within which to respond.

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).



______________________________________________
H.M. WALKER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs