Citation Nr: 1804296	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  03-01 854	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to an initial compensable evaluation for erectile dysfunction.

2.  Entitlement to service connection for a bilateral foot disability, claimed as bilateral foot pain.

3.  Entitlement to service connection for an intestinal disability as secondary to medications for service-connected disabilities.

4.  Entitlement to an initial evaluation in excess of 40 percent from July 16, 1999 through September 22, 2002 for a low back disability.

5.  Entitlement to an evaluation in excess of 20 percent from September 22, 2002 through March 7, 2010 for a low back disability.

6.  Entitlement to an evaluation in excess of 40 percent from March 7, 2010 for a low back disability.

7.  Entitlement to a total disability evaluation based upon individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Attorney, Jeany Mark


ATTORNEY FOR THE BOARD

J. Trickey, Associate Counsel


INTRODUCTION

The Veteran had active service from November 1994 to July 1999. 

This matter arises before the Board of Veterans' Appeals (Board) from a September 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction currently resides in Winston-Salem, North Carolina.

In a February 2006 decision, the Board denied entitlement to an initial rating in excess of 20 percent for lumbosacral strain.  In a May 2008 memorandum decision, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's February 2006 decision, and remanded the claim for readjudication.

In an April 2010 rating decision, the RO granted an increased rating of 40 percent for the Veteran's low back disability, now classified as mild degenerative disc disease and facet arthrosis at L5/S1 with annular bulge, effective March 8, 2010. The April 2010 rating decision also assigned separate 10 percent ratings for lumbar radiculopathy of the right and left lower extremities, effective September 23, 2002.

In June 2010, the Board again denied entitlement to an initial rating in excess of 20 percent for the Veteran's low back disability prior to March 8, 2010.  The Board also denied entitlement to a rating in excess of 40 percent for his low back disability beginning March 8, 2010.  In March 2011, the Court issued an order vacating the June 2010 decision and remanding it for further development and adjudication consistent with a March 2011 Joint Motion for Remand.

In November 2014, the Board issued a decision which granted the Veteran a 40 percent rating for his back disorder from July 16, 1999 through September 22, 2002 and denied ratings in excess of 20 percent from September 22, 2002 through March 7, 2010, and in excess of 40 percent from March 7, 2010.  The decision also denied the Veteran's claim for an extraschedular rating and a TDIU.  

In July 2016, the Court issued a memorandum decision in which it vacated the portions of the November 2014 decision that were adverse to the Veteran and remanded the matters to the Board for readjudication.

In April 2017, the Board remanded the claim for VA and Naval Hospital records to be obtained.  Responses were received from Beaufort Naval Hospital in April 2017 and from the Columbia VA Medical Center in May 2017.

The issues of entitlement to an increased evaluation for a lumbar spine disability, service connection for a gastrointestinal disability, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's erectile dysfunction does not result in any deformity of the penis.

2.  A bilateral foot disability, excluding service-connected bilateral lower extremity radiculopathy, is not shown by the record.

CONCLUSIONS OF LAW

1.  The criteria for an initial, compensable rating for erectile dysfunction are not met. 38 U.S.C. §§ 1155, 5107 (2012) 38 C.F.R. §§ 3.102, 4.7, 4.115b, Diagnostic Code 7522 (2017).

2.  A bilateral foot disability was not incurred in or aggravated by active service and was not caused by or aggravated by a service-connected disability.  38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service Connection - Bilateral Foot Disability

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).  

Initially, the Board notes that an April 2010 rating decision granted service connection for radiculopathy of the right and left lower extremities, effective September 23, 2002.  Thereafter, the Veteran submitted a claim for service connection for bilateral foot pain secondary to his service-connected lumbar spine disability in March 2011.  He was afforded a VA examination in February 2012 where the examiner noted imaging results of the Veteran's feet were negative for pathology and that no diagnosis of a foot disability could be made based on a normal examination and lack of any treatment for a bilateral foot disability.
As a lay person, the Veteran is competent to report on that which he has personal knowledge.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  
However, the record lacks evidence showing a current bilateral foot disability, and he has not provided any lay evidence that would suggest the existence of a disease or injury.  Service treatment records do not indicate treatment or complaints of a bilateral foot disability.  See Entrance examination dated September 1994; Separation examination dated November 1998; Medical Board dated December 1998.  Post-service VA and private treatment records contain no indication diagnosis or assessment of bilateral foot pathology.

To the extent that the Veteran's symptoms have been assessed as radiculopathy, he is service-connected for bilateral lower extremity radiculopathy, and consideration of whether a higher evaluation for related bilateral foot neurological symptoms is included in the rating for those disabilities.  See 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1 (noting that neurological abnormalities are to be separately rated under and appropriate diagnostic code).  

The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C. § 1110; see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  Accordingly, where, as here, competent medical evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225   (1992).  As there is no disability, the Board does not reach the issue of whether the claimed disability is related to service.

In the absence of a current disability, service connection cannot be established.  See Holton, 557 F.3d at 1366 (holding that entitlement to service connection requires, among other things, evidence of a current disability); see also Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (upholding VA's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes).  As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Initial Compensable Evaluation - Erectile Dysfunction

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10.  

When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). 

The Veteran's erectile dysfunction is rated as noncompensable pursuant to the criteria of 38 C.F.R. § 4.115b, Diagnostic Code 7522.  Pursuant to Diagnostic Code 7522, a 20 percent disability rating is assigned for deformity of the penis, with loss of erectile power.  38 C.F.R. § 4.115b, Diagnostic Code 7522.

On VA examination in March 2014, the Veteran reported that he experienced loss of libido due to medications for his service-connected lumbar spine disability.  The examiner diagnosed erectile dysfunction and reported a normal physical examination with no history of chronic epididymitis, prostatitis, or epididymo-orhchitis.  Here, the evidence reflects that the Veteran has erectile dysfunction, and that he receives special monthly compensation for loss of use of a creative organ.  In this case, the Veteran's erectile dysfunction is noncompensable under Diagnostic Code 7522 because there is no deformity shown.  The Board has considered the Veteran's VA and private medical records; however, the testes and penis have been shown to be normal.  He does not have atrophy or removal of the testis and therefore rating under Diagnostic Codes 7523 or 7524 are not appropriate.  38 C.F.R. § 4.115b . 

Accordingly, a next-higher, 20 percent rating is not warranted.  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, 370-71 (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)."  

The Board finds that an initial compensable rating for erectile dysfunction must be denied.  In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine.  As the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable.  See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55-57.

CONCLUSION

The Board is grateful for the Veteran's honorable service, and this decision is not meant to detract from that service.  However, as the evidence in this case does not reach the level of equipoise, the Board concludes that service connection for a bilateral foot disability and an initial compensable evaluation for erectile dysfunction is not warranted at this time.  See 38 U.S.C. § 5107(a).  

ORDER

Service connection for a bilateral foot disability is denied.

An initial compensable rating for erectile dysfunction is denied


REMAND

Service Connection - Gastrointestinal Disability

Upon review of the claims file, the Board believes that additional development on the remaining claims is warranted.  The Veteran submitted a claim for service connection for an intestinal disorder as secondary to medication for his service-connected lumbar spine disability in February 2014.  In May 2014, the Veteran was afforded a VA examination where the examiner opined that the Veteran's gastroesophageal reflux disease and irritable bowel syndrome were less likely than not caused or aggravated by his medications of Diclofenac and Non-Steroidal Anti-Inflammatory Drugs (NSAID).

Thereafter, the Veteran's representative submitted a November 2017 statement with accompanying information that asserted that medications for the Veteran's service-connected psychiatric disorder caused or aggravated his gastroesophageal reflux disease and irritable bowel syndrome. The representative noted that buspirone, paroxetine, and gabapentin were prescribed to the Veteran and included drug information with the November 2017 statement.  The Board finds that an additional opinion is necessary to assess the etiology the Veteran's claimed gastrointestinal disability.  See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) (Board may not make independent medical assessments); see also McClendon v. Nicholson, 20 Vet. App. 79 (2006).

Increased Evaluation - Lumbar Spine and TDIU

The Board notes that the Veteran was last afforded a VA examination pertaining to the lumbar spine in March 2016.   Review of these examination reports reveal that range of motion testing in passive motion, weight-bearing, and nonweight-bearing situations were not conducted.  The Court in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing conditions, and, if possible, with range of motion measurements of the opposite undamaged joint.  
Thus, the holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate.  In light of Correia, this VA examination is incomplete, and the Veteran must be provided a new VA examination with respect to the lumbar spine which provides range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing conditions.

Further, the Veteran filed a December 1999 application for VA Vocational Rehabilitation, which indicates that VA records pertinent to the appeal may exist that VA has not attempted to obtain.  Such records may be relevant to the appeal as the Veteran has contended periods incapacitating episodes as well as interference with employment and TDIU.  These records may also be relevant to the Veteran's initial evaluation as they relate to the timeframe shortly after separation.  There is no indication VA has attempted to obtain any Vocational Rehabilitation records, and  the RO should make appropriate attempts to identify and obtain this evidence on remand.  38 U.S.C. § 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Finally, the Board notes that the Veteran has not submitted a VA Form 21-8940.  The Veteran should be advised to submit a VA Form 21-8940 and submit any related employment records, or information and authorization to obtain any relevant records.

Accordingly, the case is REMANDED for the following action:

1.  Undertake appropriate development to obtain ALL outstanding VA treatment records that have not been associated with the claims file.

2.  Undertake appropriate development to obtain the Veteran's vocational rehabilitation records.

3.  The AOJ should forward the appropriate forms, VA Form 21-8940 and VA Form 21-4192 for completion. Any relevant employment records identified should be obtained.

4.  Obtain an additional opinion on the Veteran's claimed gastrointestinal disability.  The examiner is directed to review the claims file, including the May 2014 VA examination and the Veteran's November 2017 statements and drug information and provide the following opinions:

a.  Whether it is at least as likely as not (50/50) the Veteran's gastroesophageal reflux disease and irritable bowel syndrome were caused by medications for his service-connected psychiatric disorder, including buspirone, paroxetine, and gabapentin.

b.  Whether it is at least as likely as not (50/50) the Veteran's gastroesophageal reflux disease and irritable bowel syndrome were aggravated (permanently worsened beyond the normal progression of the disease) by medications for his service-connected psychiatric disorder, including buspirone, paroxetine, and gabapentin.

If the examiner is unable to provide the above opinions without resort to mere speculation in this case, he or she should clearly explain why that is so.

5.  Schedule the Veteran for a VA examination(s) to ascertain the current severity and manifestations of the Veteran's service-connected lumbar spine disability.  The claims file should be made available to the examiner for review in connection with the examination. The examiner is asked to provide the following opinion:




Whether the Veteran's lumbar spine disability, at any time since July 1999, has been manifested by pronounced Intervertebral Disc Syndrome; with persistent symptoms compatible with sciatic neuropathy; with characteristic pain and demonstrable muscle spasm; absent ankle jerk; or other neurological findings appropriate to the site of the diseased disc with little intermittent relief.  The examiner should note imaging results and physical examination results in support of his or her opinion.

Additionally, the examiner must include range of motion testing of the lumbar spine in the following areas:

a.  Active motion;
b.  Passive motion;
c.  Weight-bearing; and
d.  Nonweight-bearing.

The examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the lumbar spine is used repeatedly over a period of time.  The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain.  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 is asked to describe whether pain significantly limits functional ability during flares, or if pain has significantly limited functional ability during flares AT ANY TIME since July 1999, and if so, the examiner must estimate range of motion during flares.  IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES.  EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED.  If there is no pain and/or no limitation of function, such facts must be noted in the report.

The examiner should identify all neurologic manifestations of the Veteran's lumbar spine disability.  If there is neurological impairment, the examiner should identify the nerve or nerves involved and determine the manifestations.  The examiner should also comment on the impact of the Veteran's lumbar spine disability on his ability to work.

6.  After completing any additional notification or development deemed necessary, the Veteran's claims should be readjudicated.  If the claim remains denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response.

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).




______________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs