Citation Nr: 18156834 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 14-00 510 DATE: December 11, 2018 ORDER Entitlement to a rating in excess of 20 percent for lumbar degenerative disc disease is denied. Entitlement to a 10 percent rating, but not higher, for laceration, right shin, with acute osteomyelitis is granted. REMANDED Entitlement to service connection for bilateral lower extremity peripheral neuropathy is remanded. Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the period at issue, the Veteran’s lumbar spine disability resulted in range of motion of no worse than 70 degrees forward flexion when considering pain, weakness, fatigability or incoordination, and no worse than 185 degrees combined range of motion. There is no ankylosis of the Veteran’s lumbar spine. 2. The Veteran’s right shin scar is painful, stable and 10 centimeters in length. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for lumbar spine degenerative disc disease are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a (2017). 2. The criteria for a disability rating of 10 percent, but not higher, for painful right shin scar have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.118, Diagnostic Codes 7801-7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to July 1985. The Veteran testified before the undersigned via video conference from Wichita, Kansa in March 2016. A transcript of the hearing is of record. The Board previously remanded this case in February 2017. The Agency of Original Jurisdiction (AOJ) has substantially complied with the Board’s remand directives, except as noted below. Increased Rating 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. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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); 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, 511-12 (1995). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2017). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 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. 1. Entitlement to a rating in excess of 20 percent for lumbar spine disability A review of the record reveals the Veteran’s lumbar spine disability does not warrant a rating beyond 20 percent at any point during the period on appeal. i. Applicable Law Evaluation of a service connected disability involving the musculoskeletal system rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2017) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2017). See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran’s lumbar disability is evaluated under Diagnostic Code group 5235-5243, 38 C.F.R. § 4.71a (2017). Accordingly, the regulations provide for evaluation of the Veteran’s lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a. Under the General Rating Formula, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is limited to 120 degrees or less; 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. A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2017). Intervertebral disc syndrome (IVDS) is evaluated (preoperatively or postoperatively) either on the basis of incapacitating episodes over the past 12 months, or under the General Rating Formula (which provides the criteria for rating orthopedic disability, and authorizes separate evaluations of its chronic orthopedic and neurologic manifestations), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under Diagnostic Code 5243, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. A maximum, 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. The notes following Diagnostic Code 5243 define an incapacitating episode as 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. ii. Analysis The Veteran requested an increase in his lumbar spine disability rating. At a December 2009 VA spine examination, the Veteran reported constant, daily and moderate upper lumbar and then distal pain (5 out of 10). He also reported radiating pain into bilateral hips and feet. No history of flare ups was noted, but objective evidence of pain following repetitive motion of the thoracolumbar spine was found. No additional limitation in range of motion was caused by this pain. The examiner found no evidence of muscle spasm or guarding. The Veteran’s gait was normal and there was no thoracolumbar spine ankylosis. Range of motion (ROM) deficiency was noted, but pain on active motion was not found. The testing revealed forward flexion of 80 degrees and a combined ROM of 218 degrees. These ROM results are similar to that found by a Social Security Administration clinician in October 2009. At a June 2011 VA examination, the Veteran reported his back pain is getting worse. The examination revealed similar findings as the December 2009 VA examination, except that guarding, pain with motion and tenderness were noted. Additionally, ROM testing revealed forward flexion of 75 degrees and a combined ROM of 219 degrees. A January 2012 VA examination was inconsistent with the prior two VA examinations, in that it revealed normal ROM, even after repetitive use. No objective evidence of painful motion was found. During his March 2016 hearing, the Veteran testified that his back pain was consistently at “20 to 25 percent, but when there’s the attacks, that happen once or twice a month, where I’m basically laid up, it could be eight or nine, you know, basically, I’m just bent over, and that’s something I’ve lived with, with heat pads, ice pads, and but when it gets those days, I’m laid up for three or four days, and they’re extreme, very, very painful.” When asked, “So, that’s two times a month, for three or four days, where you can’t do anything”, the Veteran affirmed. The Veteran also testified that he could bend over, but that he had to stretch first. During a June 2017 VA examination, the Veteran described his flare-ups as pain ranging from 5/10 to 10/10. The Veteran reported when he has flares he is unable to do any activities. The examiner noted the flares happen a couple times a year that last for a couple months. The examiner performed ROM testing, which revealed forward flexion of 70 degrees and a combined ROM of 210 degrees. Objective evidence of pain with weight bearing was found, but additional loss of function or range of motion after repetitive use was not. There was no ankylosis of the spine. During a May 2018 VA examination, the Veteran reported constant pain (6-7/10) that is worse in the winter months. The Veteran also reported flare-ups with pain of 8-9/10, and that if it is a bad case he “will be out” one week or so. Veteran stated he had 4-5 episodes in the past year. During flares, Veteran reports he is “unable to do rotation stuff.” ROM testing revealed forward flexion of 75 degrees and combined ROM of 185 degrees. There was no evidence of pain with weight bearing, but there was objective evidence of localized tenderness or pain on palpation. The Veteran was not able to perform repetitive use testing, as he reported muscle spasm in the lumbar area after second round of lateral flexion. There was no ankylosis of the spine. In adjudicating the Veteran’s claims, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences concerning his disabilities. See Layno v. Brown, 6 Vet. App. 465 (1994). Competent evidence concerning the nature and extent of the Veteran’s lumbar spine disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which the Veteran’s lumbar spine disability is evaluated. Additionally, the Veteran’s reports of flare-ups have been inconsistent with regard to their frequency and severity. As such, the Board finds the medical records and opinions to be the most probative evidence with regard to whether an increased rating is warranted. The Board finds a change in the rating for the Veteran’s lumbar spine disability is not warranted. The record supports the Veteran’s current rating of 20 percent. The next highest rating for the Veteran’s lumbar spine disability is 40 percent, and a 40 percent rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a. This is not shown by the evidence of record. The examinations reveal no worse than 70 degrees forward flexion when considering pain, weakness, fatigability or incoordination, and no worse than 185 degrees combined range of motion. See 38 C.F.R. §§ 4.45, 4.59. The Veteran’s treatment records are consistent with the VA examiner’s findings, including a lack of ankylosis and no evidence of prescribed bed rest. To the extent that he has reported flare-ups, even if we accept his statements as accurate, the frequency is of such duration that a higher evaluation is not warranted. We note that the purpose of section 3.344 is stabilization of an evaluation. Here, he has reported periods that wax and wane. But his reports of flare-ups during a month have actually been fleeting. Evaluations are not based upon very temporary changes since such would violate the principle of stabilization. Here, we find that the current evaluation provides the greatest degree of stability. In light of the above, the Board finds that a higher rating at any point during the period of the appeal is not warranted. 2. Entitlement to a compensable rating for laceration, right shin, with acute osteomyelitis In compliance with the Board’s remand, the Veteran was scheduled for and appeared at a VA scar examination in June 2017. At this examination, it was made clear that Veteran was seeking evaluation beyond his shin scar itself and wanted further evaluation of shin pain. The examiner noted this would require a separate examination. The Veteran was scheduled for an osteomyelitis examination, but did not appear. Failure to appear for an examination in conjunction with an increased rating claim can lead to a denial of such claim. See 38 C.F.R. § 3.655. However, as the Veteran appeared for his June 2017 scar examination, the Board will make a decision based on the evidence of record. i. Applicable Law The Board notes that the Veteran is service-connected for a right shin scar, which is assigned a noncompensable rating. 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2016). The Veteran has asserted that a compensable rating is warranted. Diagnostic Code 7801 is used for rating scars not of the head, face, or neck that are deep and nonlinear. Such scars in an area of at least 6 square inches (39 square centimeters (cm)) but less than 12 square inches (77 square cm) warrant a 10 percent rating. A 20 percent rating requires an area of at least 12 square inches (77 square cm) but less than 72 square inches (465 square cm). A 30 percent rating requires an area of at least 72 square inches (465 square cm) but less than 144 square inches (929 square cm). A 40 percent rating requires an area of 144 square inches (929 square cm) or greater. A qualifying scar is one that is nonlinear and deep, and is not located on the head, face, or neck. A deep scar is one associated with underlying tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Diagnostic Code 7802 is used for rating scars not of the head, face, or neck that are superficial and nonlinear. Such scars in an area of 144 square inches (929 square cm) or greater warrant a 10 percent evaluation. A superficial scar is one not associated with underlying soft tissue damage. If multiple qualifying scars are present, a separate evaluation is assigned for each affected extremity based on the total area of the qualifying scars that affect that extremity. 38 C.F.R. § 4.118, Diagnostic Code 7802. Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful, and a 30 percent disability rating is assigned for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, add 10 percent to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. Diagnostic Code 7805 provides that other scars (including linear scars), and other effects of scars, require the rating of any disabling effects not considered in a rating provided under Diagnostic Codes 7800 to 7804 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. ii. Analysis The Veteran was afforded a VA bone examination in October 2010. The examiner noted “[h]ealed sinus tract and linear scar in right shin region. Tenderness to palpation in the right shin region.” Imaging showed no acute fracture in the right tibia or right fibula. The examiner did not comment on the size of the Veteran’s shin scar. At his hearing, the Veteran testified to having a left shin scar and a right shin scar. However, the reported left shin scar did not arise from the same incident as the right shin scar and is not an issue before the Board. The Veteran reported he was thrown up against rocks during BUDS training and “suffered about a one-inch incision on my right shin here.” He further testified that about six weeks later, “it basically swelled up overnight to the size of a grapefruit,” and surgery was performed the next day. The Veteran noted “there’s a little one-inch incision, beside it there’s a like a two-inch incision.” He testified that there are days it feels like pain is still there, and speculated it was related to his nerves. The Veteran was provided a VA scar examination June 2017. The examiner noted one scar, and found it to be linear and 10 centimeters in length. The Veteran reported sensitivity to the right shin bone, but the examiner noted the Veteran’s scar was not painful or unstable. The record is nearly devoid of evidence related to the Veteran’s scar during the period at issue, except as noted above. The Board recognizes the Veteran’s report of pain below the scar may indicate soft tissue damage; however, the evidence of record does not support the Veteran’s scar is of sufficient size to warrant a compensable rating under Diagnostic Codes 7801 or 7802. There is evidence for an against finding the Veteran’s scar is painful. The June 2017 VA examiner noted the Veteran reported sensitivity to the bone, but not the scar itself. The Veteran’s testimony is not clear if the pain he was referring to is related to the scar, his shin bone or scar related nerve damage. However, in light of the Veteran’s testimony and the October 2010 VA examiner’s notation of tenderness on palpation, the Board resolves doubt in favor of the Veteran and finds the Veteran’s right shin scar is painful. Therefore, a 10 percent rating is warranted pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7804 (10 percent rating for one or two painful scars). The evidence of record does not indicate the Veteran’s scar started being painful within one year of the Veteran filing his increased rating claim; therefore, the effective date will be the date of claim. The Veteran did not report, and the evidence does not support, any other disabling effects beyond pain. As such, a compensable rating under DC 7805 is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is remanded. i. Non-Compliance with Board Directives In its February 2017 remand, the Board of Veterans’ Appeals (Board) directed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for an examination to determine the nature and etiology of peripheral neuropathy of the lower extremities. The Board further directed that the examiner should consider and comment on opinions from June 2011 and January 2013 VA examinations and on an August 2016 private medical opinion. In pertinent part, the examiner was also supposed to provide opinions on whether “the Veteran’s peripheral neuropathy of the lower extremities was caused by or aggravated by” his service connected lumbar spine disability. A review of the record indicates the examiner did not substantially comply with these directives, so a remand is required to ensure such compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was seen for a series of VA examinations in June 2017. The examiner could not come to a conclusion on cold exposure vs idiopathic neuropathy, but was sure peripheral neuropathy “is not related or secondary to his lower back injury (per EMG).” The Veteran addressed the June 2011 VA examiner’s opinion, but was silent on the January 2013 VA examiner’s opinion and the August 2016 private medical opinion. Additionally, the examiner did not provide an opinion on whether bilateral lower extremity was aggravated by the Veteran’s lumbar spine disability. ii. Further Consideration of Facts and Statements In addition to possibly being secondary to his lumbar spine disability, the Veteran contends his peripheral neuropathy is due to cold exposure while in service. As noted above, the February 2017 VA examiner was “unable to say that his peripheral neuropathy is cold injury related or idiopathic peripheral neuropathy age related without further speculation.” In support of this statement, the examiner commented, “Idiopathic peripheral neuropathy usually sows (sic) up in the individual over age of 60. In 2009 veteran was 61 years old. After careful evaluation of the veterans condition, exam, review of all documents, and medical literature, I am not able to come to conclusion. Veteran story is believable although unusual and is not supported by STR [service treatment records]. On other hand he was already in his 60 wen (sic) peripheral neuropathy was first reported which is evidence in support of idiopathic peripheral neuropathy w/o real medical explanation.” A review of the record reveals the Veteran was born on September [redacted], 1958, and thus is 10 years younger than stated by the VA examiner. Additionally, the Veteran has reported symptoms have existed prior to 2009. See, e.g., September 10, 2007 treatment record (bilateral foot and leg pain for two months; burning sensation) and March 2016 hearing testimony (foot pain since service). In September 2018, a VA clinician’s opinion was obtained in relation to the Veteran’s shin laceration claim. The examiner also discussed the Veteran’s peripheral neuropathy, but did not cure the issues noted above. To the contrary, the clinician erred in evaluating the Veteran’s report of cold exposure. The examiner stated the Veteran’s “training occurred in typical warmer months of the year in California-southern coast. While the waters have cold currents, frostbite would be improbable at best.” While the Veteran has reported training in the open water, he also reported cold exposure on land in tubs and holes with water and ice. See, e.g., March 2016 hearing testimony. The examiner did not address this contention. In light of the above, remand is warranted for additional examination and opinions. 2. Entitlement to a total disability rating individual unemployability (TDIU) is remanded. Any determination with respect to the issue above would materially affect a determination concerning entitlement to a TDIU. As such, it is inextricably intertwined with the claim being remanded, and must therefore be remanded as well. The matters are REMANDED for the following action: 1. In compliance with the Board’s February 2017 remand, schedule the Veteran for an examination to determine the nature and etiology of the neuropathy of the lower extremities. The examiner should provide the following opinion(s): (1) whether it is at least as likely as not that the Veteran’s neuropathy of the lower extremities was caused by any incident in service to include cold exposure during SEAL training and/or a back injury in service; and, (2) whether it is at least as likely as not that the Veteran’s neuropathy of the lower extremities was caused by or aggravated by his service connected lumbar spine disability. In providing their opinion, the examiner should specifically consider and comment on the previous opinions of record to include the June 2011 and January 2013 VA examinations, and the August 2016 private medical opinion. A complete rationale should be provided for any opinion rendered. After undertaking any additional development deemed appropriate, adjudicate the claims in light of any additional evidence added to the record. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel