Citation Nr: 18149539 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-37 826 DATE: November 9, 2018 ORDER Service connection for primary thrombocytopenia is denied. Service connection for a right shoulder disorder is denied. An increased rating of more than 20 percent from August 19, 2013 and continuing thereafter for the Veteran’s service-connected lumbar spine disorder, to include chronic lumbar strain and degenerative disc disease is denied. REMANDED The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran’s thrombocytopenia is a laboratory finding and is not a current disability for purposes of VA compensation benefits. 2. The Veteran does not have a current right shoulder disorder. 3. The Veteran’s thoracolumbar spine has been shown to be manifested by pain on motion and at worst, flexion limited to 60 degrees, extension limited to 30 degrees, right and left lateral flexion limited to 30 degrees and right and left lateral rotation limited to 30 degrees with a combined range of motion of 210 degrees. CONCLUSIONS OF LAW 1. The criteria to establish service connection for thrombocytopenia have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(d) (2017). 2. The criteria to establish service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(d) (2017). 3. The criteria to establish an increased rating more than 20 percent for the entirety of the rating period on appeal for the Veteran’s lumbar spine disorder have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1984 to March 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 and November 2015 rating decision of the Decatur, Georgia and Little Rock, Arkansas Regional Office (RO), respectively. Service Connection Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Congress specifically limits entitlement to a service-connected disease or injury where such cases have resulted in a disability, and in the absence of proof of a present disability, there can be no claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The term “disability,” as used for VA purposes, refers to a condition resulting in an impairment of earning capacity. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Primary thrombocytopenia In an October 2013 statement, the Veteran asserted that his primary thrombocytopenia was incurred in or caused by service. A November 1995 service laboratory result revealed that the Veteran had a PLT (platelet) count of 123 accompanied by “L.” A legend at the bottom of the document indicates that “L” stands for low. No medical diagnosis was provided by a service medical examiner; however, the Veteran claims that this laboratory finding of a low platelet count during service is evidence of thrombocytopenia. An August 2002 VA laboratory result also revealed a low platelet count of 114 with no corresponding diagnosis. VA treatment records from April 2008 to January 2017 list primary thrombocytopenia, NOS as an active problem. The evidence does not show that the Veteran has a disability caused by thrombocytopenia within the meaning of the law. By “disability” is meant “an impairment in earnings capacity resulting from such diseases and injuries and their residual conditions in civil occupations.” 38 C.F.R. § 4.1; see also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) [Citing with approval VA’s definition of “disability” in 38 C.F.R. § 4.1 and “increase in disability” in 38 C.F.R. § 3.306 (b)]; see also Leopoldo v. Brown, 4 Vet. App. 216, 219 (1993) (A “disability” is a disease, injury, or other physical or mental defect.”). Although not in reliance on the disposition of the matter, thrombocytopenia is defined as an abnormally low platelet count. Medline Plus, U.S. National Library of Medicine, https://medlineplus.gov/ency/article/000586.htm. Without evidence of an associated disability, thrombocytopenia is a laboratory finding and not a disability for which service connection may be granted. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (diagnoses of hyperlipidemia, elevated triglycerides and elevated cholesterol are laboratory results and are not, in and of themselves, disabilities for purposes of VA compensation benefits). In addition, service connection may not be granted for a laboratory finding without evidence of a disorder manifested by such finding. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A preponderance of the evidence is against a finding that the Veteran has a current disability for purposes of VA compensation benefits. The law does not provide compensation benefits for laboratory findings without a diagnosed disability. Therefore, service connection is not warranted and the claim is denied. Right shoulder disorder In his May 2015 application for disability compensation, the Veteran asserted that service connection is warranted for his “shoulder condition, right.” Service treatment records (STRs) are silent for complaints or any contemporaneous reports pertaining to the Veteran’s right shoulder. In his November 2013 notice of disagreement, the Veteran indicated having mistakenly written “right” instead of “left” for his shoulder. The Board notes that the Veteran’s claim of service connection for a left shoulder disorder has been opted into VA’s Rapid Appeals Modernization Program (RAMP). In addition, the Veteran has not asserted experiencing a right shoulder disorder upon revealing his mistake. A preponderance of the evidence is against the claim and service connection is therefore not warranted. The claim is denied. Increased Rating Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2017). Lumbar spine disorder The Veteran is rated 10 percent disabling from April 1, 1996 to July 24, 2003 and 20 percent disabling from July 25, 2003 and continuing thereafter for his lumbar spine disorder under DC 5243-5242. The rating period on appeal is from August 19, 2013, the receipt date of the Veteran’s increased rating claim. Under DC 5242, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, for the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 (2017). A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, for favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. There are also several note provisions associated with DC 5242. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion and are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, and left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in an individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Id. Note (4): Round each range of motion measurement to the nearest five degrees. Id. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments; except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. In October 2013, the Veteran was afforded a VA examination. The Veteran reported that his lumbar spine disorder had worsened and that he experienced muscle spasms and pain in the morning. He also reported experiencing flare-ups manifested by trouble sitting, standing and laying down for prolonged periods. Initial range of motion for the thoracolumbar spine was flexion at 60 degrees; extension at 30 degrees; right lateral flexion at 30 degrees; left lateral flexion at 30 degrees; right lateral rotation at 30 degrees and left lateral rotation at 30 degrees. The combined range of motion was 210 degrees. There was pain on motion. The Veteran could perform repetitive-use testing with at least three repetitions and the range of motion after repetitive-use testing was the same as the initial range of motion testing. The Veteran’s functional loss was manifested by less movement than normal and pain on movement. He had localized tenderness or pain to palpation described as lower lumbar paraspinal muscles. The Veteran’s guarding and/or muscle spasms did not result in an abnormal gait or spinal contour. Muscle strength and reflex testing was normal. The examiner indicated that the Veteran did not have any neurological abnormalities, intervertebral disc syndrome (IVDS) or other pertinent physical findings. The Veteran does not use assistive devices. In March 2016, the Veteran was afforded another VA examination. The Veteran reported experiencing flare-ups manifested by pain, discomfort and trouble sleeping due to pain. He also reported experiencing functional impairment manifested by trouble with bending and prolonged sitting. Initial range of motion for the thoracolumbar spine was flexion at 70 degrees; extension at 30 degrees; right lateral flexion at 30 degrees; left lateral flexion at 30 degrees; right lateral rotation at 30 degrees and left lateral rotation at 30 degrees. The combined range of motion was 220 degrees. There was pain on motion and with weight-bearing. The Veteran could perform repetitive-use testing with at least three repetitions and the range of motion after repetitive-use testing was the same as the initial range of motion testing. The examiner indicated that there was pain on palpation. There was no localized tenderness, guarding or muscle spasms. Additional factors that contributed to the lumbar spine disorder were less movement than normal and interference with sitting and standing. Muscle strength and reflex testing was normal. There was no muscle atrophy, ankylosis or neurological abnormalities. The examiner indicated that the Veteran had IVDS but has not had any episodes of acute signs or symptoms that required bed rest prescribed by a physician and treatment in the past twelve months. The Veteran uses a brace on an occasional basis. There were no other pertinent physical findings. In August 2018, the Veteran was afforded an additional VA examination. The Veteran did not report experiencing flare-ups, but did report experiencing functional impairment manifested by trouble with bending, lifting, carrying and prolonged sitting and standing. Initial range of motion for the thoracolumbar spine was flexion at 75 degrees; extension at 25 degrees; right lateral flexion at 30 degrees; left lateral flexion at 30 degrees; right lateral rotation at 30 degrees and left lateral rotation at 30 degrees. The combined range of motion was 220 degrees. There was pain on motion. There was also pain on passive range of motion testing but no pain on non-weight bearing testing. The Veteran could perform repetitive-use testing with at least three repetitions. Range of motion was flexion at 70 degrees; extension at 20 degrees; right lateral flexion at 30 degrees; left lateral flexion at 30 degrees; right lateral rotation at 30 degrees and left lateral rotation at 30 degrees. The combined range of motion was 210 degrees. There was additional loss of function or range of motion after three repetitions. The Veteran was examined immediately after repetitive-use testing. It was noted that pain, weakness, fatigability or incoordination significantly limited the Veteran’s functional ability with repeated use over time. There was no guarding or muscle spasms and no additional factors that contributed to the Veteran’s lumbar spine disorder. Muscle strength and reflex testing was normal. There was no muscle atrophy, ankylosis, neurological abnormalities, IVDS or other pertinent physical findings. The Veteran does not use assistive devices. A preponderance of the evidence is against a finding of an increased rating more than 20 percent for the entirety of the rating period on appeal. At worst, the Veteran’s thoracolumbar spine has been shown to be manifested by pain on motion and flexion limited to 60 degrees, extension limited to 30 degrees, right and left lateral flexion limited to 30 degrees and right and left lateral rotation limited to 30 degrees with a combined range of motion of 210 degrees. In addition, there was no indication that the Veteran had favorable ankylosis of the entire thoracolumbar spine. Therefore, an increased rating is not warranted and the claim is denied. REASONS FOR REMAND TDIU The issue of entitlement to a TDIU has been raised because the October 2013 VA examiner opined that the Veteran’s service-connected lumbar spine disorder impacts his ability to work. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather, can be part of a claim for increased compensation). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2017). Disabilities of one or both upper extremities, or of one or both lower extremities will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. Id. The Veteran’s service-connected disorders presently include blastocystis hominis injection with residuals of irritable bowel syndrome rated 30 percent disabling; pseudofolliculitis barbae with secondary scarring and hyperpigmentation rated 30 percent disabling; bilateral pes planus with bilateral arthritis of first metatarsal phalangeal joints and bunions rated 30 percent disabling; chronic lumbar strain with degenerative disc disease rated 20 percent disabling; left lower extremity radiculopathy rated 20 percent disabling; left inguinal hernia repair scar rated 10 percent disabling; right inguinal hernia repair scar rated 10 percent disabling and right lower extremity radiculopathy rated 10 percent disabling. The Veteran’s bilateral pes planus with bilateral arthritis of first metatarsal phalangeal joints and bunions rated 30 percent disabling, left lower extremity radiculopathy rated 20 percent disabling and right lower extremity radiculopathy rated 10 percent disabling are disabilities of the lower extremities and can be considered as one 40 percent disability. Applying the ratings to the combined ratings table in 38 C.F.R. § 4.25, the Veteran has one disability rated at 50 percent. Applying the Veteran’s remaining service-connected disabilities brings the combined rating to 90 percent. The Veteran meets the threshold requirement under 38 C.F.R. § 4.16(a). However, the Veteran’s current employability status is not clear from the record. The March 2016 VA examination indicates that the Veteran has been an instructional systems specialist for eight years. The matter is therefore remanded for the following: 1. Ask the Veteran to provide information as to his employability status. The Veteran may submit any evidence, argument or other information to support his claim that his service-connected disorders render him unemployable. 2. Provide any further appropriate assistance and adjudicate the claim. If appropriate, furnish the Veteran a Supplemental Statement of the Case. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel