Citation Nr: 18152098 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-27 417 DATE: November 20, 2018 ORDER Entitlement to service connection for right shoulder disability is denied. Entitlement to service connection for left shoulder disability is denied. Entitlement to service connection for hemorrhoids, to include as due to lumbar spine disability, is denied. Entitlement to a disability rating in excess of 40 percent, for lumbar spine disability, is denied. Entitlement to a disability rating in excess of 10 percent, for left lower extremity radiculopathy, is denied. Entitlement to a disability rating in excess of 10 percent, for right lower extremity radiculopathy, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, to include as secondary to service-connected lumbar spine disability, is remanded. Entitlement to service connection for a gastric disorder, to include due to acquired psychiatric disorder, is remanded. Entitlement to service connection for sleep apnea, to include as due to acquired psychiatric disorder, is remanded. Entitlement to service connection for frequent urination disorder, to include as due to lumbar spine disorder, is remanded. Entitlement to service connection for erectile dysfunction (ED), to include as due to acquired psychiatric disorder, is remanded. Entitlement to an initial disability rating in excess of 10 percent, for left knee disability is remanded. Entitlement to an initial disability rating in excess of 10 percent, for right knee disability is remanded. Entitlement to a finding of total disability based on individual unemployability, due to service-connected disabilities (TDIU), is remanded. FINDINGS OF FACT 1. A right shoulder disability was not manifest in service or within the first post-service year, and is not otherwise attributable to service. 2. The Veteran does not have a left shoulder disability. 3. Hemorrhoids were not manifest during active service and were not caused or aggravated by service-connected lumbar spine disability. 4. Lumbar spine disability is not manifested in unfavorable ankylosis of the entire thoracolumbar spine or the entire spine, and does not result in incapacitating episodes of at least six weeks duration over the past 12 months. 5. Left lower extremity radiculopathy is not manifested by symptoms consistent with moderate incomplete paralysis of the sciatic nerve. 6. Right lower extremity radiculopathy is not manifested by symptoms consistent with moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for service connection of a right shoulder disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018) 2. The criteria for service connection of a left shoulder disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for service connection of hemorrhoids are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102. 3.303, 3.310 (2018). 4. The criteria for a rating in excess of 40 percent for lumbar spine disability have not been met. 8 U.S.C. §§ `1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5243-5242 (2018). 5. The criteria for a rating in excess of 10 percent for radiculopathy of the left lower extremity are not met. 38 U.S.C. §§ 1155 5107 (2012); 38 C.F.R. § 4.1, 4.3, 4.7, 4.124, 4.124a, Diagnostic Code 8720 (2018). 6. The criteria for a rating in excess of 10 percent for radiculopathy of the right lower extremity are not met. 38 U.S.C. §§ 1155 5107 (2012); 38 C.F.R. § 4.1, 4.3, 4.7, 4.124, 4.124a, Diagnostic Code 8720 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the United States Army from August 1974 to March 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Service Connection Right Shoulder Disability Left Shoulder Disability Hemorrhoids The Veteran alleges that right and left shoulder disabilities were incurred in, or aggravated by, active service. Further, he contends that hemorrhoids are due to, or aggravated by, medication taken to treat symptoms of service-connected lumbar spine disability. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disabilities diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis is a listed chronic condition. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a) (2017); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Right Shoulder Disability The Veteran’s February 1976 separation examination includes findings of no broken bones, arthritis, or bone/joint deformity. Further, a review of the Veteran’s other service treatment records (STRs) reveals an absence of right shoulder complaints, injuries, and/or treatment. In a December 2002 VA primary care outpatient note, a clinician opined that the Veteran sought evaluation for shoulder pain due to an accident that occurred two days earlier. In a 2005 a VA progress note, a clinician noted that the Veteran complained of pain in both of his shoulders. Findings included: some tenderness to palpation along the upper trapezius and anterior bicipital tendon; 5 out 5 in strength in both shoulders; and normal grip. The Veteran was prescribed a muscle relaxer for musculoskeletal pain. In another 2005 VA note, a physical therapist wrote the goals of physical therapy treatment were to decrease right shoulder pain and increase right shoulder range of motion. In January 2009, the Veteran’s mother submitted a statement. She noted that the Veteran had been experiencing physical pain for years and conveyed on-going complaints, including body ache all over. In a February 2013 VA physical medicine rehabilitation note, a clinician reported that the Veteran sought consultation for bilateral shoulder pain. This clinician wrote that the Veteran indicated that his shoulder pain began in 2005 after “pulling.” The Veteran further stated pain began in the right should and later radiated to the left shoulder. The Veteran characterized the pain as constant burning, which inhibited sleep. X-ray imaging revealed mild osteoarthritis of the right glenohumeral and acromioclavicular joints. Other VA treatment records from 2013 show that the Veteran reported improvement in his right shoulder. In July 2014, the Veteran was afforded a VA shoulder and arm conditions examination. The examiner reviewed the claims; considered the Veteran’s subjective accounts; and conducted a physical examination. The examiner noted that the Veteran stated that he has experienced a gradual onset of bilateral shoulder pain, with its inception in 2003. As to diagnostic impressions, the examiner provided mild osteoarthritis of the right shoulder. The Veteran’s separation examination, as well as his other STRs, do not show that he incurred a right shoulder injury or disease in service. Furthermore, the Veteran reported that his right shoulder symptoms began in 2003, almost 30 years after active duty service. While the Veteran’s mother reports observed and reported pain for many years, such does not outweigh the Veteran’s own statements. Currently diagnosed mild osteoarthritis of the right shoulder was not noted during service or within one year of separation. The Veteran did not have characteristic manifestations sufficient to identify the disease process and an assertion of continuity is inconsistent with the medical evidence of record. The preponderance of evidence is against the Veteran’s claim and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); Gilbert, supra. Service connection is not warranted. Left Shoulder Disability A November 1974 consultation sheet in the Veteran’s STRs notes that the Veteran complained of left shoulder pain. The examiner reported that the Veteran had fallen from a pole. As a diagnostic impression, the examiner provided left shoulder strain. The Veteran was given a support girdle to aid in his recovery. Upon separation no left shoulder strain was noted. In February 2005, the Veteran was provided x-ray imaging of his left shoulder at a VA facility. In a subsequent radiology report, a VA physician reported no apparent bony ot joint structure abnormalities were present. As a diagnostic impression, this physician provided radiographically normal left shoulder. The July 2014 VA examiner did not provide a current diagnostic impression of left shoulder disability, or take note of any symptomatology indicative of a left shoulder disability. The Veteran has reported left shoulder pain, but no examiner or medical professional has noted objective evidence of such, and no functional impairment is shown. His pain is therefore not considered a disability. Saunders v. Wilkie, 886 F. 3d (Fed. Cir. 2018). In the absence of a disability, compensation may not be awarded. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The preponderance of evidence is against the Veteran’s claim and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); Gilbert, supra. Hemorrhoids The February 1976 separation examination reports that the Veteran did not have piles or rectal disease. In a March 2012 emergency note, a clinician noted a complaint of chronic abdominal pain and stated that the Veteran reported no problem with defecation. The Veteran endorsed level 10 pain. The examiner noted that the Veteran had been treated for similar abdominal complaints in March 2006. In a subsequent VA discharge note, an examiner provided a discharge diagnosis of abdominal pain/constipation. This examiner further opined that the Veteran’s condition was satisfactory upon discharge. In subsequent VA treatment records, an examiner provided a diagnostic impression of abdominal pain of unknown cause. In a June 2012 VA primary care note, a VA physician reported that the Veteran was fair and voiced no acute issues. He had had problems with constipation, according to the physician, and a colonoscopy showed diverticulosis and hemorrhoids. Through the inclusion of fiber in his diet, the Veteran reported that he was trying to eat more healthfully. In September 2014, the Veteran was afforded a VA rectum and anus conditions examination. The examiner diagnosed asymptomatic, mild, nonbleeding internal hemorrhoids. While he acknowledged that many of the Veteran’s medications can cause or contribute to constipation, he determined, based on a 2013 study, that there was no convincing link between constipation and hemorrhoids. While there is evidence that the Veteran’s medications can contribute to constipation, the sole competent opinion of record notes that medical knowledge has failed to find a convincing link between that condition and hemorrhoids. The Veteran has expressed his own sincerely held belief, but as a lay person, he lacks the specialized knowledge and training to opine on causation when such is not directly observable. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The preponderance of evidence is against the Veteran’s claim and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); Gilbert, supra. Increased Ratings Increased Rating Lumbar Spine Disability Increased Rating Left Lower Extremity Radiculopathy Increased Rating Right Lower Extremity Radiculopathy Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Lumbar Spine Disability The General Rating Formula for Diseases and Injuries of the Spine provides that an evaluation of 40 percent is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Alternatively, the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides that an evaluation of 60 percent requires intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Intervertebral Disc Syndrome, Note (1). At a September 2011 examination, the Veteran reported increased pain in his low back, which interfered with sleep and daily chores around the house. He had flare-ups lasting several days to two weeks, during which time he stayed in bed. Flexion was to 20 degrees, but pain began at 5 degrees. Repetitive motion caused additional pain, but 5 degrees flexion was still the beginning of painful motion. No IVDS was diagnosed, and hence no incapacitating episodes were noted. A June 2014 VA examination showed continued reports of daily back pain from diagnosed arthritis and disc disease. Pain was moderate to severe, flaring three to four days a week with activity and inclement weather. Flexion was to 80 degrees, with pain at 75; flexion was limited to 75 degrees with repetitive motion as well. Extension, left and right lateral flexion, and left and right lateral rotation were all to 15 degrees with pain, before and after repetitive motion. No incapacitating episodes were noted. Most recently, the Veteran continued to report constant low back pain at a June 2016 VA examination. He reported limitation in movement like sitting and bending due to pain, and reported he could walk about three blocks and sit about 20 minutes. The Veteran declined any range of motion testing due to self-limitation and reports of pain in all planes. The examiner corroborated the pain, but stated that it did not cause or result in functional loss, and specified there was no ankylosis present. The Board finds that an increased rating is not warranted. Although no measurements of motion are available from the most recent examination, the Veteran clearly retains movement of the spine. There is no ankylosis of any segment, or the functional equivalent. He can sit, stand, bend, and walk. While he declined range of motion testing, he was flexible enough to perform straight leg raising and similar testing, showing the low back is not fused or frozen in any position. Further, no incapacitating episodes for VA purposes are shown.   Left and Right Lower Extremity Radiculopathy The Board notes that while the issues regarding left and right lower extremity radiculopathy are characterized as increased rating claims, the currently assigned 10 percent evaluations represent reductions from previously assigned 20 percent ratings. The Veteran contends that he should not have been reduced and that he is entitled to a yet higher rating for each limb. The due process requirements of 38 C.F.R. § 3.105(e) governing rating reductions are not applicable here, as there has been no reduction in the amount of compensation paid to the Veteran as a result of the RO action. So long as actual sustained improvement in the conditions is shown and the appropriate criteria are met, the reductions are permissible. The Veteran’s left and right lower extremity radiculopathy are rated under Diagnostic Code 8520, which contemplates paralysis of the sciatic nerve. Under this diagnostic code, ratings of 10 percent, 20 percent, and 40 percent are assignable for incomplete paralysis which is mild, moderate, or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Words such as “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather than applying a mechanical formula, VA must evaluate all the evidence 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 the September 2011 VA examination, the Veteran reported moderate constant bilateral lower extremity pain. However, there were no indications of numbness bilaterally. The examiner opined that the severity was moderate bilaterally; 20 percent ratings were assigned based on this examination. In stark contrast, the June 2014 examiner noted no objective findings regarding radiculopathy or similar neurological problems in the lower extremities. The Veteran did subjectively report a gradual onset of numbness and tingling in the legs, but such could not be independently corroborated. As this indicates improvement, reduction was warranted. During the July 2016 VA examination, the Veteran reported occasional shooting pain into the right lateral leg and numbness in both big toes. However, there were again no objective signs of radiculopathy or other neurological abnormalities. The minor numbness and tingling subjectively reported by the Veteran does not merit assignment of any evaluation in excess of the 10 percent currently assigned for each lower extremity. The symptoms are, at worst, mild. REASONS FOR REMAND The Veteran alleges that his service-connected low back disability causes him to be depressed; he associates his gastric problems, sleep apnea, frequent urination, and erectile dysfunction to his low back disability or the associated mental disorder as well. Such allegations are colorable, and require further development. Further, the June 2014 VA knee examination is inadequate, as it fails to properly address the full extent of disability with use. Current findings are required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA mental disorders examination. The claims folder must be reviewed in conjunction with the examination. The examiner must identify all currently diagnosed acquired psychiatric disorders, and for each must opine as to whether such is at least as likely as not caused or aggravated by military service or a service-connected disability, to include the low back. 2. Schedule the Veteran for a VA gastrointestinal examination. The claims folder must be reviewed in conjunction with the examination. The examiner must identify all currently diagnosed gastrointestinal disorders, and for each must opine as to whether such is at least as likely as not caused or aggravated by military service or a service-connected disability, to include the low back and/or a psychiatric disorder. Assume for purposes of examination that any psychiatric disorder is service-connected. 3. Schedule the Veteran for a VA sleep apnea examination. The claims folder must be reviewed in conjunction with the examination. The examiner must state whether a diagnosis of sleep apnea is warranted, and if so must opine as to whether such is at least as likely as not caused or aggravated by military service or a service-connected disability, to include the low back and/or a psychiatric disorder. Assume for purposes of examination that any psychiatric disorder is service-connected. 4. Schedule the Veteran for a VA genitourinary examination. The claims folder must be reviewed in conjunction with the examination. The examiner must identify all currently diagnosed genitourinary disorders. The presence of erectile dysfunction and/or a condition manifested by frequent urination must be specifically addressed. For each the examiner must opine as to whether such is at least as likely as not caused or aggravated by military service or a service-connected disability, to include the low back and/or a psychiatric disorder. Assume for purposes of examination that any psychiatric disorder is service-connected. 5. A full and complete rationale opinion is required for all opinions expressed, 6. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issue. If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel