Citation Nr: 18142455 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-10 740 DATE: October 15, 2018 ORDER Entitlement to service connection for compensation purposes for loss of teeth and gum disease secondary to medications prescribed for the Veteran’s service-connected lumbar spine degenerative disc disease (lumbar spine disability) is denied. Entitlement to an increased rating in excess of 40 percent for a lumbar spine disability is denied. Entitlement to an evaluation in excess of 10 percent for right lower extremity radiculopathy is denied. Entitlement to an increased rating in excess of 10 percent for epididymitis and prostatitis is denied. REMANDED Entitlement to an increase rating in excess of 70 percent for depression is remanded. FINDINGS OF FACT 1. The Veteran is diagnosed with periodontal disease and carious teeth. 2. The Veteran does not have unfavorable ankylosis of his lumbar spine. 3. The Veteran’s right lower extremity radiculopathy is mild. 4. The Veteran does not have urinary tract or kidney infections, urine leakage, or increased urinary frequency. While he has marked obstructive symptomatology, he does not have obstructed voiding with urinary retention requiring intermittent or continuous catherization. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for loss of teeth and gum disease have not been met. 38 U.S.C. §§ 1131, 1712, 5107(b), (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.381 (2017). 2. The criteria for entitlement to an increased rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (Code) 5242 (2017). 3. The criteria for entitlement to an evaluation in excess of 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Code 8620 (2017). 4. The criteria for entitlement to an increased rating in excess of 10 percent for epididymitis and prostatitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115b, Code 7527 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1979 to May 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA). After the Veteran filed his January 2014 notice of disagreement, the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was granted in a February 2015 rating decision. Thus, the issue is not before the Board. Service Connection Entitlement to service connection for compensation purposes for loss of teeth and gum disease secondary to medications prescribed for the Veteran’s service-connected lumbar spine disability. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). Compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. See 38 C.F.R. § 4.150. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities, but may be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 U.S.C. § 1712; 38 C.F.R. § 3.381. When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt must be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the issue, the issue is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran’s private dentist noted that he was in need of multiple extractions, restorations, and periodontal treatment, as well as a full upper denture and lower permanent partial. See February 2013 statement. During an August 2013 VA dental examination, the Veteran was diagnosed with periodontal disease and rampant dental caries. See August 2013 VA examination. Considering the evidence in light of the above, the Board finds that the Veteran does not have a compensable dental disability because he has only been diagnosed periodontal disease and carious teeth, which are dental disabilities that cannot be service-connected. See 38 C.F.R. § 3.381. Because he has not been diagnosed with a disability of the teeth for which service connection may be granted, the claim for service connection for a dental condition for compensation purposes must be denied. To the extent to which he seeks service connection for outpatient dental treatment, the Board notes that the Agency of Original Jurisdiction (AOJ) referred this issue for appropriate action. See September 2013 rating decision. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating 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, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999). 1. Entitlement to an increased rating in excess of 40 percent for a lumbar spine disability. The Veteran is currently rated at 40 percent pursuant to Code 5242, for degenerative arthritis of the spine, and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 40 percent rating is warranted for flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. “Unfavorable ankylosis” is defined, in pertinent part, as “a condition in which... the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” See id., Note (5). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The Board notes that remand pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), is not necessary because the Veteran must show unfavorable ankylosis to be entitled to an increased rating. The considerations in Correia do not apply to the symptoms that must be shown for unfavorable ankylosis, such as restricted opening of the mouth and a limited line of vision, and thus remand for a new examination would provide little probative value. The record does not reflect, nor has the Veteran stated that he has any of the requisite symptoms. Accordingly, the Board finds that remand for a new VA examination is unnecessary. During an April 2012 VA examination, the Veteran reported that his primary care doctor has prescribed him pain medication for his lower back. The examiner noted that the Veteran could not climb stairs, except in short episodes as in a single flight of stairs, and that he should not climb ladders. He could not stand for more than 20 to 30 minutes without needing a break; he could not walk more than a few hundred yards; he could not carry, push or pull more than 20 to 30 pounds. The Veteran did not report flare-ups, but the examiner opined that he had intervertebral disc syndrome (IVDS) with no incapacitating episodes within the last 12 months. See April 2012 VA examination. As previously noted, the Veteran’s back disability is currently rated as 40 percent, which contemplates findings of flexion limited to 30 degrees or less, or favorable ankylosis of the thoracolumbar spine. To warrant a disability rating in excess of 40 percent, the evidence would need to show unfavorable ankylosis of the thoracolumbar spine or the entire spine. There is no evidence in the record that the Veteran suffers from the symptoms associated with unfavorable ankylosis. In fact, the record shows the Veteran, while limited, has retained movement of his back at all times during the appeal period. Accordingly, an increased rating in excess of 40 percent must be denied. The Board has considered whether the Veteran would be entitled to an increased rating pursuant to a different Code. IVDS is rated pursuant to the Formula for Rating IVDS Based on Incapacitating Episodes. The evidence reflects that the Veteran has IVDS, but that he has not had incapacitating episodes. See April 2012 VA examination. Accordingly, the Veteran would not be able to obtain a higher rating and he is properly rated pursuant to the General Formula. 2. Entitlement to an evaluation in excess of 10 percent for right lower extremity radiculopathy. The Veteran is currently rated at 10 percent for his right lower extremity radiculopathy pursuant to Code 8620, for neuritis of the sciatic nerve. See 38 C.F.R. § 4.124a. Code 8620 uses the same rating criteria as Code 8520, for paralysis of the sciatic nerve. Under Code 8520, a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent rating is assign for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy; and a (maximum) 80 percent rating is assigned for complete paralysis whether the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Id. The words “mild,” “moderate,” and “severe” as used in the various Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. During an April 2012 VA examination, the examiner diagnosed sciatic nerve radiculopathy and opined the Veteran had mild constant pain that may be excruciating at times, along with mild numbness. He did not have intermittent pain (usually dull) or paresthesias and/or dysesthesias. See April 2012 VA examination. After considering the evidence of record, the Board finds that the Veteran’s right lower extremity radiculopathy is mild. Notably, the April 2012 VA examination is given significant probative weight, along with the examiner’s opinion that the Veteran demonstrated only mild constant pain and numbness. Thus, a rating in excess of 10 percent is not warranted. The Board has considered whether the Veteran is entitled to a higher rating pursuant to another Code. The only other Codes applicable to the sciatic nerve are Code 8520, for paralysis of the sciatic nerve, and Code 8720, for neuralgia of the sciatic nerve. All three Codes use the same rating criteria. 38 C.F.R. § 4.124a. Thus, the Veteran cannot be assigned a higher rating pursuant to a different Code. 3. Entitlement to an increased rating in excess of 10 percent for epididymitis and prostatitis. The Veteran is currently rated at 10 percent for his epididymitis and prostatitis pursuant to Code 7527, for prostate gland injuries, infections, hypertrophy, and postoperative residuals. Under Code 7527, the rating criteria for voiding dysfunction or urinary tract infection are used, whichever is predominant. For urinary tract infection, a 10 percent rating is assigned for long-term drug therapy, with one to two hospitalizations per year or requiring intermittent intensive management.; A (maximum) 30 percent rating is assigned for recurrent symptomatic infection requiring drainage or frequent hospitalization (greater than two times a year), or requiring continuous intensive management. Poor renal function is rated under renal dysfunction. 38 C.F.R. §§ 4.115a, 4.115b, Code 7527. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. For urine leakage, a 20 percent rating is assigned for when the wearing of absorbent materials which must be changed less than two times per day is required. A 40 percent rating is assigned for when the wearing of absorbent materials which must be changed two to four times per day is required. A (maximum) 60 percent rating is assigned for when the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day is required. Id. For urinary frequency, a 10 percent rating is assigned for daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent rating is assigned for daytime voiding interval between one and two hours, or awakening to void three to four times per night. A (maximum) 40 percent rating is assigned for daytime voiding interval less than one hour, or awakening to void five or more times per night. Id. For obstructed voiding, a 10 percent rating is assigned for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post-void residuals greater than 150 cc; (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every two to three months. A (maximum) 30 percent rating is assigned for urinary retention requiring intermittent or continuous catheterization. Id. During an April 2012 VA examination, the Veteran reported that he continued to have burning and problems with starting his urination stream. The examiner opined the Veteran had voiding dysfunction but no urine leakage, increased urinary frequency, recurrent urinary tract or kidney infections, urinary retention requiring intermittent or continuous catherization, and no use of an appliance. However, there was obstructed voiding with non-marked hesitancy, markedly slow or weak stream, and markedly decreased force of stream. See April 2012 VA examination. The evidence reflects the Veteran does not have urinary tract or kidney infections, urine leakage, or increased urinary frequency. Thus, to obtain a rating in excess of 30 percent, the Veteran would need to demonstrate obstructed voiding with urinary retention requiring intermittent or continuous catherization. The April 2012 VA examination reflecting that the Veteran does not require intermittent or continuous catherization is given significant probative weight. Additionally, the Board notes that the Veteran has not stated he requires catherization for his disability. The Board acknowledges that the Veteran experiences burning and difficulty starting a stream, but these symptoms are contemplated in the criteria for voiding dysfunction. Thus, because the Veteran has not demonstrated the required criteria, a rating in excess of 10 percent is not warranted. REASONS FOR REMAND Entitlement to an increase rating in excess of 70 percent for depression is remanded. The only VA examination of record uses the Diagnostic and Statistical Manual of Mental Disorders (DSM), 4th edition (DSM-IV). See April 2012 VA examination. The newest version of the DSM, the DSM-5, applies to all claims certified to the Board on and after August 4, 2014. 79 Fed. Reg. 45,093 (Aug. 4, 2014). In this case, the Veteran’s claim was originally certified to the Board in April 2015. Thus, remand is warranted for a new examination using DSM-5 criteria. The matter is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s depression from September 2013 to the present. 2. After the above development is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected depression using DSM-5 criteria. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran’s disorder. 3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel