Citation Nr: 1802991 Decision Date: 01/16/18 Archive Date: 01/29/18 DOCKET NO. 11-16 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease, degenerative joint disease of the thoracic and lumbar spine prior to December 22, 2015 and in excess of 20 percent thereafter. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from January 1979 to January 1982 and from November 1982 to July 2002. He retired at the rank of chief warrant officer. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction currently resides at the VA RO in Montgomery, Alabama. On the Veteran's substantive appeal dated June 2011, he requested a hearing before a Veterans Law Judge. However, in a statement dated March 2016, he cancelled his hearing request. Accordingly, his request for a hearing is considered to be withdrawn and his claims will be reviewed based on the evidence of record. See 38 C.F.R. § 20.704(e) (2017). The record reveals that the Veteran's claim for entitlement to an initial increased rating for degenerative disc disease, degenerative joint disease of the thoracic and lumbar spine was readjudicated by a January 2016 rating decision wherein the RO increased the disability evaluation for the service-connected back disability from 10 percent disabling to 20 percent disabling with an effective date of December 22, 2015. However, as the increase did not constitute a full grant of the benefits sought, the Veteran's claim for a higher initial evaluation remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The issue of entitlement to an increased disability rating for degenerative disc disease, degenerative joint disease of the thoracic and lumbar spine is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A right ankle disability was not manifest in service and is not otherwise attributable to service. CONCLUSION OF LAW A right ankle disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA's duty to notify was satisfied by a November 2008 letter. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence. The Veteran's service treatment records, VA treatment records, private treatment records and evidence submitted by the Veteran and other individuals have been associated with the claims file. The Veteran has also been provided with a VA examination for his claimed right ankle disability in December 2015. As will be discussed in detail below, the VA examiner declined to diagnose the Veteran with a right ankle disability and then opined that the Veteran does not have residuals of a right ankle disability related to service. The Board acknowledges the statement of the Veteran's representative in the November 2017 Informal Hearing Presentation (IHP) indicating that the Veteran's right ankle symptoms have worsened since the December 2015 VA examination. However, the Veteran's representative did not provide any further detail as to how or why the ankle symptoms have worsened. Moreover, the December 2015 VA examiner provided a thorough examination and nexus opinion that considered the Veteran's relevant medical history and current condition. The Board further finds that any residuals of a right ankle disability would have been documented on the VA examination report as well as other medical evidence currently of record. As such, the Board finds that remand of the Veteran's right ankle disability claim for another VA examination is not warranted. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board will therefore proceed to the merits of the appeal. Service connection for a right ankle disability The Veteran contends that he has a right ankle disability that is related to service. Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The Board notes that the Veteran has not claimed that his right ankle disability on appeal is the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has carefully evaluated the evidence and finds that a preponderance of the evidence of record is against a finding that the Veteran has a current right ankle that is related to his service. The Veteran's service treatment records document treatment for right ankle symptoms. Specifically, a May 1987 treatment record documents the Veteran's treatment for right ankle swelling and tenderness from an injury while playing basketball. The treating physician ruled out a bone fracture but suspected some tendon or ligament damage. In November 1993, the Veteran received treatment for a twisted right ankle and he was assessed with an ankle sprain. While he noted on his March 2002 report of medical history in conjunction with his retirement examination that he had a history of wearing a brace on his right ankle, the remainder of his service treatment records is absent complaints of or treatment for his right ankle. Indeed, his March 2002 retirement examination indicated a normal examination of the right ankle. Postservice treatment records document the Veteran's treatment for right ankle pain. See, e.g., a private treatment record from Therafit Physical Therapy/Fitness Center dated June 2011. Pertinently, the Veteran was provided a VA examination for his right ankle in December 2015. He reported right ankle pain with prolonged weight bearing. Notably, the examiner documented the Veteran's in-service treatment for his right ankle in 1987 and 1993. However, the examiner noted no ankle pain during the examination including on weight bearing. After examination of the Veteran and consideration of his medical history, the VA examiner declined to diagnose the Veteran with a current right ankle disability. However, the examiner thereafter opined that it is less likely than not that the Veteran has residuals of a right ankle disability that are related to service. The examiner's rationale for her conclusion was based on her finding that while the Veteran had in-service treatment for his right ankle, he did not have any postservice problems with the ankle until 2011. She further indicated that if his current symptoms were due to the in-service ankle treatment, he would not have been asymptomatic until many years after service. The December 2015 VA examination was based on upon thorough review of the record and analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Additionally, the VA examiner's opinion is consistent with the Veteran's documented medical history, which is absent any report of symptomatology consistent with right ankle symptomatology for more than 5 years after active service. The examiner also noted the Veteran's in-service ankle treatment which she determined to be less likely as not related to any current right ankle symptoms. The Veteran has not submitted a medical opinion to contradict the VA examiner's opinion that he has a current right ankle disability that is related to service. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C. § 5107(a) (2012) [it is the claimant's responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C. 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran has submitted statements from R.S. who served with the Veteran as well as his ex-wife, G.W., who indicated that the Veteran has a right ankle disability that is related to service. To the extent the Veteran, R.S., and G.W. assert that he has a current right ankle disability that is related to his service, the Veteran and these individuals are competent to report that he has current right ankle symptoms (as that is documented in the record). He is also competent to report that he has had symptoms since service. However, his March 2002 retirement examination revealed a normal ankle examination. Indeed, the lay evidence is inconsistent with the report of good health and generally silent history of symptoms associated with the right ankle until 2008 when he filed his claim for VA benefits. The Board also finds that the Veteran's statements as well as the statements of R.S. and G.W. do not outweigh the opinion of the VA examiner who provided a thorough examination of the Veteran, considered his medical history and thereafter indicated that the Veteran does not have a current right ankle disability that is related to service. Thus, these arguments do not outweigh the specific findings of the VA examiner who is a skilled neutral professional. In short, the more credible and probative evidence establishes that the Veteran does not have a current right ankle disability that was manifested during service. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right ankle disability. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for a right ankle disability is denied. REMAND As to the Veteran's claim of entitlement to a disability rating in excess of 10 percent for degenerative disc disease, degenerative joint disease of the thoracic and lumbar spine, the Court recently held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. § 4.59 (2017) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. However, this information is not found in the report from the Veteran's most recent VA examination of record for his back which is dated December 2015. Further, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court addressed the adequacy of a VA examiner's opinion concerning additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must "[E]licit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why [he or] she c[an] not do so." Sharp, 29 Vet. App. at 35. Therefore, the Board finds that this issue must be remanded to provide the Veteran with a new VA examination to obtain the required medical evidence. See 38 U.S.C. § 5103A(d) (2012). Further, when adjudicating this claim, the AOJ should be mindful of the Court's holdings in Coreia, Sharp, DeLuca, and Mitchell v. Shinseki, 25 Vet. App. 32 (2011) regarding painful motion. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to assess the orthopedic manifestations of service-connected degenerative disc disease, degenerative joint disease of the thoracic and lumbar spine. The claims file must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Regarding the orthopedic manifestations, the examiner is asked to indicate the point during range of motion testing that motion is limited by pain. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the lumbar spine. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. If the examination was not performed during a flare-up, the examiner must elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why he or she cannot do so. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 2. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative with the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). ______________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs