Citation Nr: 18160252 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 17-09 711 DATE: December 26, 2018 ORDER Entitlement to service connection for a left arm disability is denied. Entitlement to service connection for headaches is denied. Entitlement to service connection for rhinitis is denied. Entitlement to an initial evaluation in excess of 10 percent for chronic left patellofemoral syndrome is denied. Entitlement to an initial evaluation in excess of 10 percent for left ankle Achilles' tendonitis is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. Currently diagnosed paresthesia of the left arm was not first manifested on active duty service or within any applicable presumptive period, and is not otherwise shown to be related to military service. 2. Currently diagnosed headaches, not otherwise specified, were not first manifested on active duty service or within any applicable presumptive period, and are not otherwise shown to be related to military service. 3. The Veteran does not have a current sinus disability. 4. Service-connected left knee patella femoral syndrome is marked by painful motion without functional loss. 5. Service-connected left ankle Achilles’ tendonitis is marked by painful motion without functional loss. CONCLUSIONS OF LAW 1. The criteria for service connection of a left arm disability are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for headaches are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). 3. The criteria for service connection of rhinitis are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). 4. The criteria for an initial evaluation in excess of 10 percent for left knee patella femoral syndrome are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2018). 5. The criteria for an initial evaluation in excess of 10 percent for left ankle Achilles’ tendonitis are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2003 to September 2008 for the United States Army. This appeal comes to the Board of Veterans’ Appeals (Board) from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish a right to compensation there must be competent evidence of (1) 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. However, 38 C.F.R. § 3.303(b) only applies to the list of chronic diseases/disabilities recognized by VA as being chronic and those chronic diseases/disabilities are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Left Arm The Veteran has been diagnosed with left upper extremity numbness or paresthesia; the question for the Board is whether such is related to service. Although the Veteran currently reports onset in or in close temporal proximity to service, she initially reported onset well after service, and such is supported by the contemporaneous records. Presumptive service connection is not appropriate. Further, even though the Veteran was exposed to the explosion of IEDs in service, it is documented that she did not sustain injury to her arm, head or neck from such in service. She did not report any at the time, or for many years after, and made contradictory reports at several points between. The initial and most recent assessments agree that the complaints are most likely related to a psychiatric disorder, which is not service-connected. The complaints began nine years after separation, prior to documentation of physical change to the spine. The sole evidence of a nexus to service is the Veteran’s statements, and these are inconsistent and contradictory. While. She is competent to state when symptoms she feels started, she has demonstrated that her reports are not credible, and cannot be given probative weight. Service connection is not warranted. 2. Headaches As is noted above, service treatment records reflect exposure to an IED blast, but a head injury and residual headaches were not found; recent examinations verify such. At separation the Veteran denied having headaches. In April 2013 the Veteran said she began having headaches in 2004 and that she has self-treated. The pain is throbbing, intermittent, lasts about 2 hours, and happens about 2 times per month. The pain is about a 6 out of 10 and increases with anxiety; she reports taking medicine. Headaches are on both sides and get worse with physical activity. There were no migraine symptoms, but there were non-migraine prostrating attacks that were not prolonged. Functional impact was negative. The July 2017 examination diagnosed the Veteran with headaches not otherwise specified. Her records were reviewed and after the IED blast the Veteran was assessed and she denied headaches and denied hitting her head or being dazed and confused after the blast. She reports a few headaches a week that are mild and throbbing; Advil is sometimes used to relieve the pain. Migraines occur 1 or 2 times per month. Additional symptoms include nausea, sensitivity to light and sound. Functional impact was negative. The examiner concluded by saying he was unable to corroborate many of her symptoms as she has not been consistent in reporting them. He stated that there are no records of treatment and questioned the Veteran’s reporting. He did say that her post IED assessment clearly showed she did not have a TBI, did not see stars or feel dazed, and did not have a concussion. He concluded that her headaches were not caused by service. Reporting of headache symptoms has mostly been self-reported and inconsistent. The Veteran reported other injuries and disabilities during service and at separation, so her stating that she would not report headaches because it was frowned upon is not credible. She had ample opportunities to report headaches; the most obvious opportunity was after she experienced an IED explosion. At her assessment, she reported not hitting her head or having any pain, and she was not diagnosed with a TBI or concussion. Her stating that the examiner did a poor job or she did not know about TBI is not credible because the records show she specifically reported not hitting her head or having symptoms after the blast. Furthermore, her account changed from the April 2013 examination to the July 2017 examination where the former examination does not discuss the IED event and only relates headaches to an unknown cause in 2004. Denial of headaches throughout service, inconsistent reporting, and a lack of contemporaneous treatment are all evidence against awarding service connection; they undercut the only evidence favoring the claim, the Veteran’s competent testimony. No head injury was found during service, and headaches were denied at separation despite other ailments being mentioned. The actual reported onset of headaches came several years after service. The inconsistent reporting and lack of treatment must be considered by the Board. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Caluza, 7 Vet. App. at 511; Curry, 7 Vet. App. at 68. In considering all the evidence, the Board does not find that service connection for headaches is warranted. 3. Rhinitis STRs do not report any problems related to rhinitis during service. At separation the Veteran mentioned issues with her left knee, left ankle, and recent sleep impairment but she denied nasal and sinus issues at her July 2008 separation examination. The Veteran was afforded a VA examination in April 2013. She told the examiner that she was exposed to dust during her time in Iraq, and that she would occasionally wear facial protection. The Veteran reported that she began having thick mucus discharge during service in 2006-2007 but no other symptoms. She says that symptoms are worse now and she experiences near-constant nasal congestion and mucus. Treatment has included blowing her nose and nasal spray but no visits to a doctor. She had less than 50 percent obstruction of her nasal passage, there was no permanent hypertrophy, no polyps, and no granulomatous conditions. Imaging studies of the paranasal sinuses were performed and they revealed normal findings. The Veteran’s nasal condition was found not to impact her ability to work. Another examination took place in July 2017. Again, the Veteran reported issues beginning during service, but she also said she has not sought treatment since. The examiner marked “No” under the section asking if the Veteran had any nose, throat, larynx, or pharynx conditions. Imaging studies found that the paranasal sinuses were well pneumatized and clear; there was no fracture or other abnormality. Overall, the exam was normal and any nasal issue did not impact the Veteran’s ability to work. In conclusion, the examiner stated that “her ENT exam today was normal, she did not have nasal congestion, or rhinitis, there is not a diagnosis and no evidence to support a diagnosis.” The Board concludes that the Veteran does not have a current diagnosis of rhinitis or any other nose, throat, larynx, or pharynx disability and has not had one 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). Without a current disability service connection cannot be established. Shedden, 381 at 1167. Therefore, the claim for entitlement to service connection for rhinitis is denied. 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; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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; 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. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. The terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “mild” or “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 4. Left Knee Multiple diagnostic codes are potentially applicable to evaluation of the knees. Simultaneous compensation under several Codes is permissible so long as differing symptomatology is being compensated by each Code. Limitations of flexion (Code 5260) and extension (Code 5261) may both be rated, but a rating for arthritis (Code 5003) cannot be combined with either, as it refers to general limitations of motion and would include both flexion and extension. Similarly, instability (Code 5257) and meniscal disabilities (Codes 5258 and 5259) can be rated with limits of motion, and with each other, so long as differing symptoms and manifestations are being compensated. VAOGCPREC 9-2004; VAOPGCPREC 23-97; VAOPGCPREC 9-98. All these potentially applicable Codes have been considered. The Veteran is currently evaluated under Diagnostic Code 5260 for limitation of flexion, but her 10 percent evaluation is for painful motion under 38 C.F.R. § 4.59. Pursuant to Diagnostic Code 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. A diagnosis for chronic left patella-femoral syndrome was made during service in 2006. She denied flare-ups at the April 2013 examination, and her range of motion testing was normal with no pain. Repetitive use testing showed full range of motion, there was no pain on palpation, muscles and joints were normal, there was no subluxation, no crepitus, and no arthritis. The Veteran occasionally wore a knee brace, but no functional impact was found. Her June 2013 NOD reported that after her C&P examination the Veteran was in considerable pain. She said she was unaware that she could stop moving when the pain became intense, otherwise she would have stopped. A VA examination was conducted in July 2017. She reported pain when she walks or uses her knee generally, her gait was normal. This time she reported flare-ups caused by prolonged walking or standing. Functional loss was caused by the flare-ups. Range of motion was normal but there was evidence of pain during flexion. There was no pain on weight bearing, no crepitus, but localized tenderness was found. Repetitive use testing revealed full range of motion. The knee had full muscle strength, no atrophy, no ankylosis, it was stable, and imaging studies did not find arthritis. Functional impact was negative. The Veteran’s range of motion is not limited even after repetitive use and with some evidence of objective pain on motion. Imaging studies did not find arthritis, there is no subluxation, lateral instability, or cartilage damage. Also, the Veteran’s patella femoral syndrome does not impact her ability to work. For these reasons, the Veteran is not entitled to a rating higher than 10 percent. Her current disability picture shows that she does not have any limitations in her motion even though she experiences some pain on motion. A higher evaluation for pain on motion is only warranted where the pain causes additional functional loss, which the Veteran does not experience. The Board has considered whether there is less movement than normal, more movement than normal, weakened movements, excess fatigability, incoordination, and pain on movement under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). However, no other physical findings of functional impact have been shown. Therefore, the Veteran is properly rated at 10 percent disabled under Diagnostic Code 5260. See 38 C.F.R. § 4.71a. Further, there is no evidence of meniscal damage, instability, or any other manifestation of disability requiring rating under a different diagnostic code. 5. Left Ankle Diagnostic Code 5271 provides for a 10 percent rating for moderate limitation of motion of the ankle and a 20 percent rating for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal range of ankle motion is dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71, Plate II. Ankylosis of the ankle in plantar flexion at less than 30 degrees warrants a 20 percent rating. A 30 percent rating is warranted if the ankylosis is in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees. A 40 percent rating is warranted if there is ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Currently, the Veteran is evaluated at 10 percent under Diagnostic Code 5271. However, that 10 percent is based on painful motion rather than limited range of motion. At the April 2013 VA examination, the Veteran endorsed a history of ankle sprains since service. She denied flare-ups, her range of motion was normal, repetitive motion also showed normal range of motion, her strength was normal, joints were stable, there was no ankylosis, and imaging studies did not find arthritis. Her ankle did not cause functional loss. The examiner diagnosed the Veteran with achilles tendonitis. Like with the knee, the Veteran reported that her ankle was in considerable pain after she finished her April 2013 exam. She said she would have stopped the examination had she known it was an option because her ankle was in pain. The July 2017 examiner noted a diagnosis of lateral collateral ligament sprain since 2007 as well as achilles tendonitis. She said her pain was 4 out of 10, and reported flare-ups from prolonged walking, standing, and running. The flare-ups caused functional loss. Her range of motion was normal, even during repetitive use; there was no pain on motion but there was pain on weight bearing. She had mild discomfort with palpation, there was no crepitus, there was no loss of strength or atrophy. Imaging studies showed mild posterior calcaneal spurring, but were otherwise unremarkable. Functional impact was negative. The Veteran experiences pain only on weight bearing and this does not cause functional loss. She stated that performing range of motion testing hurt her in 2013, but in 2017 she had no issues with motion. Regardless of any lay reporting, the objective medical evidence shows that she does not having limited motion or another disability that warrants a higher rating. Based on the medical evidence, the Veteran would not be entitled to a 10 percent rating because her range of motion is not impaired, and she has no ankylosis or malunion. She has a 10 percent rating due to the pain she experiences on motion; but even this pain does not cause a functional loss that would warrant a higher rating. Because the Veteran only experiences pain on motion without functional loss or additional disability in her left ankle, a rating of 10 percent is proper, and a higher evaluation is denied. REASONS FOR REMAND The April 2013 VA examiner stated that the examination of the low back was normal, but also endorsed some right side sciatic symptoms and noted limitation of motion in left lateral flexion. Further, the Veteran’s reports of painful motion can constitute a disability for VA purposes. Saunders v. Wilkie, 886 F. 3d (Fed. Cir. 2018). In rendering his nexus opinion, he indicated a current diagnosis was appropriate, but then failed to enter one. Remand is required for a complete examination and adequate opinion. The matters are REMANDED for the following action: Schedule the Veteran for a VA spine examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all current disabilities of the low back, and for each, must opine as to whether such is at least as likely as not caused or aggravated by military service. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Harner, Associate Counsel