Citation Nr: 18159331 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-63 648 DATE: December 18, 2018 ORDER An initial rating in excess of 10 percent for a left foot disability is denied. An initial rating of 30 percent, but no more, for a kidney disorder, characterized as nephrolithiasis, is granted. Service connection for right ear hearing loss is denied. Service connection for a spleen disorder is denied. Service connection for a nerve disorder, claimed as paralysis condition, is denied. REMANDED Entitlement to service connection for a respiratory disorder, claimed as allergies, is remanded. Entitlement to service connection for a penile disorder is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s left foot disability is characterized by no more than moderate symptoms, including pain and functional limitations. 2. Throughout the period on appeal, the Veteran’s service-connected kidney disability has been manifested by recurrent stone formation requiring continuous medication, diet therapy, and/or non-invasive or invasive procedures more than two times per year. 3. Throughout the period on appeal, the Veteran does not have a diagnosis or a disability relating to right ear hearing loss for VA compensation purposes. 4. Throughout the period on appeal, the Veteran does not have a diagnosis or a disability relating to a spleen disorder for VA compensation purposes. 5. Throughout the period on appeal, the Veteran does not have a diagnosis or a disability relating to a nerve disorder, claimed as paralysis condition, for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a left foot disability have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5284. 2. The criteria for an initial rating of 30 percent, but no more, for a kidney disorder, characterized as nephrolithiasis, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 3.102, 4.115a, 4.115b, DC 7508. 3. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309, 3.385. 4. The criteria for service connection for a spleen disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 5. The criteria for service connection for a nerve disorder, claimed as paralysis condition, are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 2002 to August 2006, and from October 2007 to April 2014. Increased Ratings The Veteran is seeking increased ratings for his service-connected left foot and kidney disabilities. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. In the case of an initial rating, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial rating in excess of 10 percent for a left foot disability The Veteran’s left foot disability is assigned a 10 percent rating under 38 C.F.R. § 4.71a, DC 5284 (addressing other foot injuries not listed in the diagnostic codes). The Board agrees that this is the most appropriate diagnostic code given that the Veteran’s left foot disability has been characterized by various symptoms listed under 38 C.F.R. § 4.71a, DCs 5276-5283, without a single prominent disorder. In order to warrant a rating in excess of 10 percent, the evidence must demonstrate a foot disability with moderately severe impairment (20 percent). 38 C.F.R. § 4.71a, DC 5284. The words “moderate” or “severe” are not defined in the rating schedule. However, moderate is generally defined as “tending toward the mean or average amount,” while severe is defined as “of a great degree” or “serious.” Merriam-Webster’s Collegiate Dictionary, 798, 1140 (11th ed. 2003). After a thorough review of the evidence, the Board determines that an initial rating in excess of 10 percent is not warranted as the evidence does not demonstrate left foot symptoms to a “moderately severe” degree. Specifically, at a June 2016 VA examination, while the Veteran reported daily left foot pain that prevents him from running, he nevertheless stated that he is able to walk and stand without any limitations. Further, he noted that the did not have any flare-ups of pain. On examination, while the Veteran’s foot disability impacted his ability to bear weight, the examiner determined that his disorder was not severe enough to warrant assistive devices such as arch supports or orthotics. Therefore, to the extent the Veteran was experiencing left foot pain and weakness, the examiner determined that the Veteran’s foot disability was “moderate” in severity and only prevented him from running. Additionally, the medical treatment records do not reflect moderately severe symptoms in the Veteran’s left foot. The Board has also considered whether a higher disability evaluation is warranted based on additional functional loss that is equivalent to “moderately severe” symptoms due to fatigability, incoordination, pain on movement, pain on weight-bearing, weakness, and flare-ups. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shinseki, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 206 -07 (1995). In this case, the Veteran has reported that he is limited in performing activities of daily living, such as running, due to pain. He also denied flare-ups. However, while the Veteran experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss that are equivalent to symptoms at a moderately severe degree, and his complaints are adequately contemplated in the ratings he currently receives. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Of note, the June 2016 VA examiner did not find any evidence of additional loss of motion or functioning after repetitive testing, weight bearing, and/or flare-ups that would warrant a higher rating. In order to prevent any potential prejudice to the Veteran, the Board has also considered whether the Veteran’s foot disability could be rated under any other potentially relevant diagnostic code. However, the Veteran is not service-connected for any other foot disorder. 2. Entitlement to an initial rating in excess of 10 percent for a kidney disorder, characterized as nephrolithiasis The Veteran kidney disability, manifested by kidney stones, has been assigned a 10 percent disability rating under 38 C.F.R. § 4.115b, DC 7508. As an initial matter, the Board assigns a 30 percent rating for the Veteran’s kidney disorder under DC 7508. In this case, the June 2016 VA examiner noted that the Veteran has recurrent kidney stone formations every 2 to 3 months that require treatment with diet therapy. Therefore, the criteria for the maximum 30 percent evaluation under Diagnostic Code 7508 have been met. See 38 C.F.R. § 4.115b. Additionally, while the Veteran has been assigned the maximum schedular rating under DC 7508, the Board has considered whether he is entitled to a higher rating under any other potentially relevant diagnostic code. Nevertheless, as the Veteran is not service-connected for a bladder disorders, nor is there evidence that his kidney disorder causes voiding dysfunction, a higher evaluation is not warranted under any other applicable diagnostic code. In considering the appropriate disability ratings, the Board has also considered the statements from the Veteran that his service-connected left foot and kidney disabilities are worse than the rating he currently receives, including that his disabilities cause impairment with his activities of daily living. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competent evidence concerning the nature and extent of the Veteran’s service-connected left foot and kidney disabilities 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 (as provided in the examination reports) directly address the criteria under which this disability is evaluated. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors. If such related factors are exhibited, then referral must be made to the Director of the Compensation Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that the Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, including pain and limitation of motion, that causes limitations to his activities of daily living, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Court of Appeals for Veterans Claims has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran does not assert, and the record does not reflect, that his service-connected left foot and kidney disabilities prevent him from working. As such, TDIU is not raised by the record. See Id. Service Connection 3. Entitlement to service connection for right ear hearing loss 4. Entitlement to service connection for a spleen disorder 5. Entitlement to service connection for a nerve disorder, claimed as paralysis condition The Veteran asserts that he has a diagnosis of right ear hearing loss, a spleen disorder, and a nerve disorder that had its onset during service, or was otherwise etiologically related to service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. 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, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), 3.304, 3.307, 3.309, 3.385. After a review of the evidence, the Board determines that service connection is not warranted because the Veteran does not have a current diagnosis of these disorders, and has not had a diagnosis of these disorders at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d), 3.304, 3.385. With respect to hearing loss, the Board notes impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Here, the Board observes that the Veteran’s service treatment records do not include any diagnosis or findings of right ear hearing loss. Of note, in September 2015, the VA examiner found that the Veteran did not have auditory threshold over 20 decibels in the 500, 1000, 2000, 3000, and/or 4000 Hertz auditory frequencies. Moreover, the Veteran had a speech recognition score, using the Maryland CNC Word List, of 98 percent in his right ear. Therefore, the Board finds that the audiological testing of record demonstrates that the Veteran does not have0 current hearing loss disability for VA purposes, and, as such, there can be no valid claim for service connection for hearing loss. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). Next, the Board determines that the evidence, including the June 2016 VA examination (and corresponding September 2016 addendum opinion), does not reflect a current diagnosis related to a nerve disorder at any time during the period on appeal. Specifically, while the June 2016 VA examiner stated that the Veteran had a nerve disorder during service, diagnosed as Guillain-Barre syndrome and Miller-Fisher syndrome, that were caused by a flu shot, these conditions eventually resolved prior to the period on appeal. In support, the examiner noted that the Veteran had normal strength and coordination, and there was no evidence of residuals. Additionally, the examiner stated that “complete resolution of symptoms is common.” As such, given that the Veteran’s symptoms resolved with no residuals, and that there is no evidence of a current nerve disorder, the Board determines that the Veteran does not have a nerve disorder for VA compensation purposes. Similarly, the June 2016 VA examiner opined that while the Veteran had abdominal symptoms within 10 days after receiving a flu shot during service, that was diagnosed as an enlarged spleen, “he returned to normal condition and full duty after 3 more months with no residuals. He had no other stomach, duodenal, or other digestive symptoms.” As such, he determined that the Veteran does not have any symptoms of a sleep disorder. Further, in a September 2016 addendum, the examiner indicated that the diagnosis of an enlarged spleen was “by history” and there were “no current diagnosis of no spleen enlargement found on examination.” In any event, the Board notes an enlarge spleen without any residuals or actual impairment is essentially a laboratory finding, and not a disability for which VA compensation benefits are payable. See 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). In arriving at this conclusion, the Board acknowledges the Veteran’s assertions and belief that he has a nerve disorder, right ear hearing loss, and a spleen disorder; however, he is not competent to provide a diagnosis in this case. The issues of diagnosis a disorder and rendering etiological opinions are medically complex and requires specialized medical education and knowledge of the interaction between multiple systems in the body, as well as the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, to the extent the Veteran is competent to report pain, weakness, limitation of motion, the Board acknowledges the holding in the United States Court of Appeals for the Federal Circuit in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which indicates that pain can constitute a “disability” under 38 U.S.C. § 1110. However, the medical evidence, including the June 2016 VA examination, is not sufficient to demonstrate a disability for VA purposes -especially in light of the fact that the examiner specifically determined that the Veteran does not have any residuals from his nerve disorders that resolved during service. As such, the preponderance of the evidence is against a finding that the Veteran has a disability relating to his nerves, right ear hearing loss, and spleen at any point during the time on appeal. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). REASONS FOR REMAND 1. Entitlement to service connection for a respiratory disorder, claimed as allergies, is remanded. 2. Entitlement to service connection for a penile disorder is remanded. The Board observes that the Veteran initially missed his VA examinations for all of the issues on appeal with good cause. As such, the Regional Office (RO) rescheduled his examinations. However, despite requesting an examination for his respiratory and penile disorders, it appears that they were never scheduled. Therefore, on remand, the RO should schedule a VA examination for these disorders. The matters are REMANDED for the following action: 1. Obtain all treatment records that are available from any VA facility from which the Veteran has received treatment since April 2014. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit the medical records of such treatment. 2. Schedule the Veteran for a VA examination to determine the nature, extent, onset and etiology of his respiratory (claimed as allergies) and penile disorders. The claims file must be reviewed, including the new records, and such review should be noted in the opinion. All indicated studies deemed necessary by the examiner should be performed, and all findings of these tests should be reported in detail. For each diagnosed disorder, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed disorder is etiologically related to the Veteran’s period of service. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel