Citation Nr: 1804212 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 11-33 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected lumbosacral strain with degenerative changes of the spine and intervertebral disc syndrome (low back disability). 2. Entitlement to an initial rating in excess of 10 percent prior to June 19, 2012, and in excess of 20 percent thereafter, for service-connected low back disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1984 to November 1986. This matter comes before the Board of Veterans' Appeals (Board) from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a right ankle disability and awarded an initial disability rating of 10 percent for a low back disability effective July 8, 2010. The issues were previously before the Board in November 2014 and March 2017, where they were remanded for additional development. During the pendency of the appeal, the RO increased the Veteran's noncompensable evaluation for his low back disability to 10 percent, effective April 30, 2012, in a July 2012 rating decision. In a February 2015 rating decision, the 10 percent evaluation was increased to 20 percent, effective December 18, 2014. An August 2017 rating decision assigned an earlier effective date of June 19, 2012, for the 20 percent rating. Since the maximum schedular rating has not been assigned from the date of the original claim, this issue remains in appellate status as reflected on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). In a May 2017 statement, the Veteran alleged that his low back disability and associated symptomology has resulted in lost employment. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part and parcel of an, increased rating claim for that disability when raised by the record. As such the additional issue of entitlement to a TDIU is properly before the Board and has been added to the title page of this decision. Also in his May 2017 statement, the Veteran noted issues with his mid-back and reports an X-ray identified cervical spine problems. If the Veteran wishes to file a claim for entitlement to service connection for a mid-back disability, he should provide the RO with a VA Form 21-526 or VA Form 21-526EZ. See 38 C.F.R. § 3.155 (2017). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have a right ankle disability that was caused or aggravated by military service or a service-connected disability. 2. For the period prior to June 19, 2012, the Veteran's service-connected low back disability was manifested by pain and limitation of motion with flexion greater than 60 degrees and a combined range of motion greater than 120 degrees; incapacitating episodes of Intervertebral Disc Syndrome (IVDS) were not present. 3. From June 19, 2012, the Veteran's service-connected low back disability was manifested by pain and limitation of motion with flexion greater than 30 degrees; neither ankylosis nor incapacitating episodes of IVDS have been present. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for an initial rating in excess of 10 percent prior to June 19, 2012, and in excess of 20 percent thereafter, for a service-connected low back disability, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any 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 a duty to assist argument). Service Connection The Veteran asserts that he has a current right ankle disability as a result of his military service or as secondary to his service-connected low back disability. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if shown to be manifest to a degree of 10 percent or more within one year following a veteran's separation from active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Additionally, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Further, it is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the Veteran is service-connected for radiculopathy of the right lower extremity, secondary to his service-connected low back disability. In the present claim, he asserts that he also has a right ankle disability, separate from his radiculopathy, which is also related either to his service or his service-connected low back disability. The Board, however, finds that the evidence is against a finding that he has a separate ankle disability for service connection purposes. Service treatment records show no complaints, treatment or diagnosis of a right ankle disability. Upon VA examination in October 2010, X-ray images of the right ankle showed a tiny bone density at the tip of the lateral malleolus, but were otherwise negative for a disease process. The Veteran also denied the presence of a chronic right ankle disability, and stated that he was only aware of the right ankle when he experienced symptoms of pain secondary to flare-ups of his low back disability. The examiner was unable to diagnose an ankle condition that was separate from his radiculopathy after physical evaluation. At a VA examination in June 2012, the Veteran denied a direct injury to his right ankle and stated that pain correlates with flare-ups of his back pain. The examiner, however, noted a right ankle sprain sustained in a motor vehicle accident many years after service, and opined that any current ankle symptoms were related to that accident. Pursuant to Board remands, two additional VA examinations were afforded to the Veteran in December 2014 and May 2017. Both examiners opined that the Veteran's reported right ankle pain was related to his already service-connected right lower extremity radiculopathy. As explained by the December 2014 examiner, VA treatment records showed no complaints, findings, or diagnosis of a right ankle disability. Regarding the June 2012 VA examiner's finding of an ankle strain secondary to a past motor vehicle accident, the examiner noted that, physiologically, the symptoms described by the Veteran - ankle pain with prolonged sitting - would be inconsistent with any type of ankle sprain or strain since ankle pain should instead be present on standing or walking. As the Veteran reported that his pain was down the entire right leg, this was consistent with his radiculopathy. Moreover, the examiner noted there was no limp or altered gait associated with the back disability that might cause some additional ankle disability on a secondary basis. The rationale of the May 2017 examiner was not dissimilar, stressing that no intrinsic, distinct, right ankle condition separate from his radiculopathy was identified. There is no medical evidence in significant conflict with the findings of the VA examiners. Thus, the most probative medical evidence is against a finding that the Veteran has a separate right ankle disability that is related to his active service or his service-connected low back disability. Congress specifically limits entitlement for a service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1131. In the absence of proof of current diagnoses of the above asserted disabilities, service connection for these disabilities cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau, 492 F.3d 1372; Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In that regard, the Veteran has reported experiencing ankle pain that is caused or aggravated by his low back disability. However, the statements do not establish a current disability separate from his already service-connected radiculopathy. The Veteran, as a lay person, has not shown that he has specialized training sufficient to render such an opinion. See Jandreau 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). Accordingly, his opinion as to the diagnosis of an ankle disability and its etiology is not competent medical evidence. See also Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 55-57. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Veteran's low back disability is evaluated under Diagnostic Code 5242, which assigns ratings based upon the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or, muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar to 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Alternatively, the Veteran's degenerative disc disease can be rated as Intervertebral Disc Syndrome, which is rated under Diagnostic Code 5243 and provides for disability ratings based on the duration of incapacitating episodes of IVDS. 38 C.F.R. § 4.71a. An "incapacitating episode" for purposes of totaling the cumulative time 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, Code 5243, Formula for Rating IVDS Based on Incapacitating Episodes, Note 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided, as this would constitute pyramiding. See 38 C.F.R. § 4.14. However, this does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's service-connected low back disability is currently evaluated at 10 percent disabling prior to June 19, 2012, and 20 percent thereafter. For the reasons that follow, the Board finds that higher ratings during the entire appeal period are not warranted. Upon VA examination in October 2010, it was noted that the spine was straight and forward flexion was limited to 90 degrees and the combined range of motion was 215 degrees. Three repetitions of flexion and extension were negative for additional pain, fatigue, weakness, lack of endurance, or incoordination. In fact, range of motion improved. While the examiner could not offer an opinion as to whether there would be additional limitation of motion after repetitive use or during flare-ups as the examination was not performed during such circumstances, when asked, the Veteran reported limitations during flare-ups as follows - increased pain on a scale of 3 to 4 out of 10 occurring when the weather changes, and increased pain of 6 to 7 out of 10 occurring several times a year which lasts 1 to 2 days without any precipitating factors, with both types of flare-ups resulting in additional limitation of motion and difficulty moving from a seated position to a standing position. The Veteran also reported intermittent radicular pain in the right lower extremity. Strength testing was normal and there was no muscle atrophy. A lumbosacral strain with degenerative changes was diagnosed. The Board notes that, although a diagnosis of IVDS was not addressed, the Veteran denied any incapacitating episodes requiring bed rest by a physician. During a June 2012 VA examination it was noted that there was no ankylosis of the spine, with flexion limited to, at most, 45 degrees, to include during repetitive use testing. While the examiner did not offer an opinion as to whether there would be additional limitation of motion during flare-ups as the examinations were not performed during such circumstances, the Veteran reported his limitations during flare-ups as aching and stiffness in the morning, as well as when seated in one position of a long period of time. There was no guarding or muscles spasm of the spine. While mild radiculopathy was noted in the right lower extremity, strength reflex, and sensory testing were normal. The examiner indicated that IVDS was not present. The Board notes that the examiner observed a lack of effort by the Veteran during range of motion testing, and estimated that, had the Veteran put for full and true effort during testing, he would achieve flexion of 80 degrees. This was based on observation of the Veteran, such as when he was putting on his socks and shoes. Pursuant to Board remand, an additional VA examination of the spine was afforded to the Veteran in May 2017. It was noted that there was no ankylosis of the spine, with flexion limited to, at most, 50 degrees, to include during repetitive use testing. The examiner noted that the examination was being conducted during a flare-up. There was no guarding or muscles spasm of the spine. Strength and sensory testing were normal, although lower extremity reflexes were absent and mild radiculopathy was noted in the right lower extremity only. The examiner indicated that IVDS was not present. As with the examination in 2012, the VA examiner here also noted a lack of effort on the Veteran's part, this time during strength testing of the lower extremities. The examiner also noted that the Veteran's difficulty undressing for the examination was not congruent with the findings on examination, diagnostic imaging, or the examiner's observations of his mobility such as getting out of a chair, on and off the exam table, squatting, and heel and toe walking. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran's low back disability warrants higher ratings. Upon VA examination in 2010, flexion was to 90 degrees with pain on motion, which is consistent with no more than a 10 percent disability rating. Examinations in June 2012 and May 2017 noted no ankylosis, with flexion, at worst, to 45 degrees, which is consistent with no more than a 20 percent disability rating. IVDS was not diagnosed at any VA examination. While the Veteran has reported flare-ups of his back disability, the 2017 examination was conducted during a flare-up and reflects forward flexion of the spine to no less than 50 degrees. This is strong evidence that range of motion more nearly approximating a higher rating is not present during the second period at issue (20 percent rating) even during flare-up. As to the first period at issue (10 percent rating) the Board finds the Veteran's statements regarding his flare-ups to lack credibility. At two examinations it was noted that the Veteran's effort was less than optimal, with the examiner's noting conflicts between what the Veteran achieved when he knew he was being tested versus when he was simply being observed undertaking activities. The Board finds this to be evidence of exaggeration of symptoms which diminishes the credibility of reported symptoms not directly observed by medical practitioners. Thus, a rating higher than 10 percent for the period prior to June 19, 2012, or in excess of 20 percent for the period thereafter, is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243. The Board has also considered whether separate ratings could be assigned to the Veteran based on any neurological symptomatology. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). As noted previously, the Veteran has already been awarded service connection for radiculopathy of the right lower extremity. Additional neurological disability associated with the Veteran's low back disability is not shown by the medical evidence or the Veteran's statements. Thus, a separate rating is not warranted. As noted above, the Veteran is competent to attest to things he experiences through his senses, such as pain. See Jandreau, 492 F.3d 1372. In this case, the Veteran has stated his low back disability results in pain, stiffness, and limitations on sitting, walking, and climbing stairs. The lay statements do not indicate that the Veteran had ankylosis, IVDS, or forward flexion so limiting that higher ratings would be warranted during any period on appeal. The Board acknowledges that the Veteran brought to his May 2017 VA examination a multi-page list of dates that he claims he suffered "incapacitating" back pain, which is currently of record. As the VA examiner observed, however, several of the dates are inconsistent, as VA treatment records show that the Veteran sought treatment on these dates for other medical reasons, yet made no mention of incapacitating back pain to physicians. Coupled with the Veteran's observed lack of effort upon VA examination, the Board finds the list of incapacitation to be lacking credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility). As it related to rating IVDS, no episodes of physician prescribed bed rest are demonstrated. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Thus, as the preponderance of the evidence is against a finding that the Veteran's disability more nearly approximates the criteria for higher ratings, higher ratings are not warranted. 38 C.F.R. §§ 4.3, 4.7, 4.71. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). ORDER Entitlement to service connection for a right ankle disability, to include as secondary to service-connected low back disability, is denied. Entitlement to an initial rating in excess of 10 percent prior to June 19, 2012, and in excess of 20 percent thereafter, for service-connected low back disability, is denied. REMAND The Board finds that the Veteran's claim for a TDIU is not yet ripe for review and must be remanded for additional development. See VAOPGCPREC 6-96. The Veteran has not submitted a formal application for a TDIU and has not been provided with notice appropriate for his claim for entitlement to a TDIU. Such must be remedied on remand. Accordingly, the case is REMANDED for the following actions: 1. Request that the Veteran complete a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), and issue the Veteran notice consistent with his claim of entitlement to a TDIU. 2. Undertake any additional development deemed warranted, to include obtaining any necessary VA examinations and/or opinions and determining whether the criteria for referral for extraschedular TDIU consideration, pursuant to 38 C.F.R. § 4.16(b), have been met. 3. After completing the above actions, and any other development deemed necessary, the AOJ should adjudicate the Veteran's TDIU claim, to include referral to VA's Director, Compensation Service, if appropriate, for consideration of a TDIU on an extraschedular basis. If the benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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 or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs