Citation Nr: 18153011 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-43 010 DATE: November 27, 2018 ORDER Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for a left hip disorder is denied. Entitlement to service connection for a right hip disorder is denied. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left leg disorder is denied. Entitlement to service connection for a right leg disorder is denied. Entitlement to service connection for a right foot disorder is denied. Entitlement to a rating in excess of 10 percent for the residuals of a right radius and ulna fracture is granted. FINDINGS OF FACT 1. A chronic low back disorder was not manifest during active service nor was arthritis manifest within a year of discharge; and, the preponderance of the evidence fails to establish that a present chronic low back disorder is etiologically related to service. 2. A left hip disorder was not manifest during active service nor was arthritis manifest within a year of discharge; and, the preponderance of the evidence fails to establish that a present chronic left hip disorder is etiologically related to service. 3. A right hip disorder was not manifest during active service nor was arthritis manifest within a year of discharge; and, the preponderance of the evidence fails to establish that a present right hip disorder is etiologically related to service. 4. A right knee disorder was not manifest during active service nor was arthritis manifest within a year of discharge; and, the preponderance of the evidence fails to establish that a present right knee disorder is etiologically related to service. 5. A chronic left leg disorder was not manifest during active service nor was arthritis manifest within a year of discharge; and, the preponderance of the evidence fails to establish that a present left leg disorder is etiologically related to service. 6. A chronic right leg disorder was not manifest during active service nor was arthritis manifest within a year of discharge; and, the preponderance of the evidence fails to establish that a present right leg disorder is etiologically related to service. 7. A chronic right foot disorder was not manifest during active service nor was arthritis manifest within a year of discharge; and, the preponderance of the evidence fails to establish that a present right foot disorder is etiologically related to service. 8. The Veteran’s service-connected residuals of a right radius and ulna fracture is manifested by limitation of wrist motion and the maximum schedular rating available is assigned. 9. The Veteran’s service-connected residuals of a right radius and ulna fracture is additionally manifested by nonunion of the ulna styloid process. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a) (2018). 2. The criteria for entitlement to service connection for a left hip disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a) (2018). 3. The criteria for entitlement to service connection for a right hip disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a) (2018). 4. The criteria for entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a) (2018). 5. The criteria for entitlement to service connection for a left leg disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a) (2018). 6. The criteria for entitlement to service connection for a right leg disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a) (2018). 7. The criteria for entitlement to service connection for a right foot disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a) (2018). 8. The criteria for entitlement to a rating in excess of 10 percent for the residuals of a right radius and ulna fracture have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2018). 9. The criteria for a separate 20 percent rating for the residuals of a right radius and ulna fracture manifested by nonunion of the ulna in the lower half have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5211 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from December 1974 to March 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran failed to report for a scheduled hearing in May 2017. VA records dated in April 2014 show the Veteran was provided a copy of the service treatment reports of record. There is no indication that those records were not received nor has the Veteran identified any specific additional existing service treatment for which further VA assistance is warranted. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a) (2018). The term “disability” for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and it is noted that pain alone may be a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, are also subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2018). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Arthritis is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Brown, 3 Vet. App. 223 (1992). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2018). 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a left hip disorder. 3. Entitlement to service connection for a right hip disorder. 4. Entitlement to service connection for a right knee disorder. 5. Entitlement to service connection for a left leg disorder. 6. Entitlement to service connection for a right leg disorder. 7. Entitlement to service connection for a right foot disorder. The Veteran, a registered nurse, contends that she has low back, hip, leg, right knee, and right foot disorders as a result of active service. In an August 2011 statement she asserted she had problems associated with her duties and required training in service. Lay statements dated in August 2011 from an acquaintance of many years, a co-worker, and her spouse described problems she demonstrated. Service treatment records show the Veteran complained of shin splints and low back pain in January 1990, shin splints in April 1990, and low back, right leg, and right foot pain in June 1990. The June 1990 examiner noted the Veteran had multiple complaints that were difficult to ascribe to organic cause. A possible stress component was suggested. The Veteran’s November 1992 retirement examination revealed normal clinical evaluations of the feet, lower extremities, and spine. She denied knee or foot problems in her November 1992 report of medical history. VA treatment records dated in April 2000 noted a history of unspecified joint pain and that the Veteran complained of right hand pain. A June 2000 emergency department report noted she presented with complaints associated with books having fallen on her back four days earlier. No specific diagnosis was provided. A May 2001 report noted she complained of low back pain. The diagnoses included joint pain, stable on current therapy. In December 2003, the Veteran complained of low back pain after lifting boxes the previous day. A diagnosis of pain was provided with cause noted as old injury exacerbated after lifting boxes. VA treatment records include a June 2009 X-ray study that revealed a large irregular calcaneal spur and degenerative changes. It was noted there was no known trauma/injury. Treatment reports noted midfoot pain possibly due to shoe wear. Reports dated in June 2009 and October 2010 included diagnoses of osteoarthritis of the knee without opinion as to etiology. A December 2010 magnetic resonance imaging (MRI) scan revealed mild degenerative changes at L3-4 and L4-5 with slight thickening of the ligamentum flavum. A January 2011 report included a diagnosis of lumbar disc degeneration. An October 2013 noted complaints of bilateral hip pain radiating to the knees. A diagnosis of chronic low back pain was provided. VA examinations in January 2013 included diagnoses of degenerative disc disease of the lumbar spine, bilateral shin splints, bilateral knee degenerative joint disease, and right foot arthritis. The examiner noted the Veteran’s treatment in service and found it was less likely these disorders were incurred in or caused by the claimed in-service injury, event, or illness. It was specifically noted that the Veteran had no current complaints or findings of shin splints and no complaints or diagnosis pertaining specifically to the knees. The current knee osteoarthritis was found to be likely related to typical wear and tear over time since service discharge. There was one episode of acute right foot pain and one complaint of low back pain in service with no further notes to indicate any chronic sequelae. Based upon the evidence of record, the Board finds a chronic low back disorder, a left hip disorder, a right hip disorder, a right knee disorder, a chronic left leg disorder, a chronic right leg disorder, and a chronic right foot disorder were not manifest during active service nor was arthritis to any such joints manifest within a year of discharge; and, the preponderance of the evidence fails to establish that present, chronic disorders are etiologically related to service. The opinions of the January 2013 VA examiner are found to be persuasive. The examiner is shown to have reviewed the evidence of record and to have adequately considered the lay statements and reported symptom manifestations history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Consideration must be given to the Veteran’s personal assertion that she has present disabilities as a result of service. The Board acknowledges that as a registered nurse she is assumed to have some degree of medical expertise. However, more or less weight may be applied to evidence based upon the level of training, education, and experience of the person conducting an examination or providing an opinion. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). VA can also consider bias in lay evidence and conflicting statements of the veteran in weighing credibility. Buchanan v. Nicholson, 451 F.3d at 1337. In this case, the Board finds the Veteran’s opinions as to present back, hip, leg, right knee, and right foot disorders having been incurred as a result of service are inconsistent with her 1993 separation examination and report of medical history. The January 2013 VA examiner’s opinions are also found to be more persuasive based upon the examiner’s higher level of training and expertise and the provided opinion rationale which I smore consistent with the evidence of record. The Board also notes that lay statements have been provided in support of the Veteran’s claims and that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The specific issue in this case, however, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The claimed disabilities at issue are not conditions that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The lay persons providing statements in this case are not shown to have completed medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that they received any special training or acquired any medical expertise in as to such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the Veteran’s claims. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran’s disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2018). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2018). VA regulations under 38 C.F.R. § 4.71a (2018), for disability to the major extremity provide ratings as follows: Under Diagnostic Code 5211 for impairment of ulna with nonunion in upper half and false movement and loss of bone substance (1 inch (2.5 cms.) or more) and marked deformity (40 percent) or without loss of bone substance or deformity (30 percent). For nonunion in lower half (20 percent). For malunion with bad alignment (10 percent). Under Diagnostic Code 5212 for impairment of radius with nonunion in lower half and false movement and loss of bone substance (1 inch (2.5 cms.) or more) and marked deformity (40 percent). Without loss of bone substance or deformity (30 percent). Nonunion in upper half (20 percent). Malunion of, with bad alignment (10 percent). Under Diagnostic Code 5213 for impairment of supination and pronation with loss of (bone fusion) and the hand fixed in supination or hyperpronation (40 percent). The hand fixed in full pronation (30 percent). The hand fixed near the middle of the arc or moderate pronation (20 percent). With limitation of pronation and motion lost beyond middle of arc (30 percent). Motion lost beyond last quarter of arc, the hand does not approach full pronation (20 percent). Limitation of supination to 30 degrees or less (10 percent). It is noted that in all the forearm and wrist injuries, codes 5205 through 5213, multiple impaired finger movements due to tendon tie-up, muscle or nerve injury, are to be separately rated and combined not to exceed rating for loss of use of hand. Under Diagnostic Code 5125 a 70 percent rating is assigned for loss of use of the hand. Under Diagnostic Code 5215 limitation of motion of the wrist with dorsiflexion less than 15 degrees (10 percent). With palmar flexion limited in line with forearm (10 percent). 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. 38 C.F.R. § 4.40 (2018). Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. See also 38 C.F.R. § 4.59 (2018). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45 (2018). Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. An adequate orthopedic examination should record the range of motion for pain on active motion and passive motion and in weight-bearing and nonweight-bearing information for the injured and non-injured joints, address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary. See Correia v. McDonald, 28 Vet. App. 158 (2016). An examination does not need to be conducted during an actual flare-up in order to account for additional functional impairment. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Instead, examiners are asked to estimate the functional impairment experienced during a flare-up, considering all competent evidence of functional loss that is available in the record. Id. Traumatic arthritis is rated pursuant to the criteria found in Diagnostic Codes 5010, which directs that evaluations are to be made pursuant to the criteria for degenerative arthritis found in Diagnostic Code 5003. 38 C.F.R. § 4.71a (2018). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1) (2018). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2017). 8. Entitlement to a rating in excess of 10 percent for the residuals of a right radius and ulna fracture. The Veteran contends that her service-connected residuals of a right radius and ulna fracture is more severely disabling that reflected by the present evaluation. In statements in support of her claim she described experiencing daily pain. Records indicate she is right-hand dominant. Her claim for an increased rating was received by VA on April 22, 2011. VA treatment records include a March 2007 X-ray study (apparently incorrectly identified as to the left wrist) noting an old healed fracture in the distal radius with an old large ununited avulsion fracture at the ulnar styloid. There was slight impaction at the old radial fracture, moderate degenerative change in the metatarsophalangeal joint of the thumb, and mild degenerative change in the carpometacarpal joint. VA examination in August 2011 included a diagnosis of chronic fracture at the right wrist with nonunion of the right radius and ulna. It was noted the Veteran complained of daily right wrist pain. She reported she was presently employed as a nurse and that the wrist disorder did not significantly limit her work. Daily activities were affected by limitation of lifting and yard work. She reported flare-ups of increased pain that were activity related. Range of motion studies revealed wrist extension to 10 degrees, flexion to 30 degrees, ulnar deviation to 20 degrees, and radial deviation to 20 degrees. Motion appeared to be accompanied by end or range pain but was not additionally limited following repetitive use. The distal radius and distal ulnar were nontender. Finkelstein’s test was positive on radial stress. Based upon the evidence of record, the Board finds the Veteran’s service-connected residuals of a right radius and ulna fracture. VA records show the current 10 percent is assigned under Diagnostic Codes 5211-5215 based upon wrist dorsiflexion less than 15 degrees. The Board notes this is the maximum schedular rating under Diagnostic Code 5215. An increased schedular rating under this Diagnostic Code is not applicable. The overall evidence of record, however, demonstrates that the Veteran has nonunion in the distal ulna warranting a separate 20 percent rating under the criteria of Diagnostic Code 5211. Therefore, a separate 20 percent rating under Diagnostic Code 5211 is warranted. The Board further finds that extraschedular rating consideration was not raised in this case and that the evidence does not present any exceptional or unusual circumstances. Doucette v. Shulkin, 28 Vet. App. 366 (2017). No further action as to this specific matter is required. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Douglas, Counsel