Citation Nr: 1806584	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  15-17 960	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for tinnitus.

3. Entitlement to service connection for bilateral carpal tunnel syndrome (CTS).

4. Entitlement to service connection for left Achilles tendon tear.

5. Entitlement to service connection for an acquired psychological disorder, to include generalized anxiety disorder (GAD) and major depressive disorder (MDD).

6. Entitlement to service connection, to include on a secondary basis, for right thigh myopathy.

7. Entitlement to service connection, to include on a secondary basis, for right thigh meralgia paresthetica.

8. Entitlement to a rating in excess of 10 percent disabling prior to November 4, 2015 for lumbar spine disability, and in excess of 20 percent disabling thereafter.

9. Entitlement to a separate evaluation for bilateral lower extremity radiculopathy.

10. Entitlement to a total disability rating based on individual unemployability (TDIU).


ATTORNEY FOR THE BOARD

C. Lamb, Associate Counsel


INTRODUCTION

The Veteran served in the Puerto Rico Army National Guard, with periods of active duty for training, including from August 1969 to January 1970.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the San Juan, the Commonwealth of Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO).  

During the pendency of the appeal, a May 2017 rating decision granted an increased rating for lumbar spine disability of 20 percent, effective November 4, 2015.  As this rating is not the maximum allowable, that issue remains on appeal.  AB v. Brown, 6 Vet. App. 35 (1993).

The issue of entitlement to a separate evaluation for bilateral lower extremity radiculopathy has been raised by the record based on clinical evidence, as discussed in the Remand section below.  As the Board retains jurisdiction over such issue as part and parcel of the Veteran's higher rating claim for lumbar spine disability, it has been listed on the title page of this decision.  38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237, Note (1) (2017).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (7).  38 U.S.C. § 7107(a)(2) (2012).

The issues of entitlement to service connection for bilateral hearing loss, tinnitus, right thigh myopathy and right thigh meralgia paresthetica, entitlement to a separate evaluation for bilateral lower extremity radiculopathy, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1. The Veteran's bilateral CTS did not originate in service and is not etiologically related to the Veteran's active service.

2. The Veteran's left Achilles tendon tear did not originate in service and is not etiologically related to the Veteran's active service.

3. The Veteran's acquired psychological disorder did not originate in service and is not etiologically related to the Veteran's active service.

4. Since May 23, 2014, the Veteran's lumbar spine disability has been manifested by forward flexion less than 60 degrees.  Since May 23, 2014, the Veteran's lumbar spine disability has not been manifested by forward flexion less than 30 degrees, ankylosis or IVDS with incapacitating episodes requiring bed rest prescribed by a physician. 


CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral CTS have not been met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2017).

2. The criteria for service connection for left Achilles tendon tear have not been met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2017).

3. The criteria for service connection for an acquired psychological disorder, to include GAD and MDD, have not been met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2017).

4. The criteria for a staged rating of 20 percent, but no higher, for lumbar spine disability, from May 23, 2014 to November 4, 2015, have been met.  38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, DC 5237 (2017).

5. The criteria for a rating in excess of 20 percent disabling for lumbar spine disability, have not been met.  38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, DC 5237 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim.  The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

VA provided the Veteran with a 38 U.S.C. § 5103(a)-compliant notice in June 2014.

Accordingly, the record shows that VA has fulfilled its obligation to assist the Veteran in developing the claims, including with respect to VA examinations of the Veteran.  The Veteran has not identified any deficiency in VA's notice or assistance duties.  See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015).

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017).  In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service.  That presumption is rebuttable by probative evidence to the contrary.  38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. 3.307, 3.309(a) (2017). 

Lay evidence presented by a Veteran concerning continuity of symptoms after service may not be deemed to lack credibility solely because of a lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (2006).  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).  

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In May 2014, the Veteran filed service connection claims for several medical diagnoses including bilateral CTS, left Achilles tendon tear and an acquired psychological disorder claimed as GAD and MDD.  The Veteran's claim was accompanied by a medical report from a private physician who noted the various diagnoses and their symptoms.  In addition, the physician opined that all conditions for which the Veteran has claimed service connection were "more probable than not" secondary to his military service.  The physician did not provide any supporting rationale or state what in-service event(s) were etiologically related to the variously claimed disabilities.  

With regard to the service connection issues on appeal, the Board notes that the claims file includes a February 1977 VA examination that noting no abnormal findings with regard to any neurological or psychiatric examinations.  In addition, the medical evidence of record includes a February 2012 bilateral hand sonoarthrography noting synovial thickening, erosions and hyper-vascularity in various finger joints.  The record did not note a diagnosis for CTS.  Additionally, the medical evidence shows treatment for an Achilles tendon tear in January 2014.  

No other pertinent evidence has been submitted.  Additionally, the Veteran did not complete and return the VA Form 21-4142, Authorization and Consent to Release Information, attached the June 2014 5103(a)-compliant notice, nor has he otherwise identified any additional medical evidence.  In this regard, the Board notes that the duty to assist is not a one-way street and it is important that the Veteran make efforts to assist VA in gathering evidence relevant to his claims.  Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (a veteran cannot passively wait for help from VA).

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C. § 1110 (2012); Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that interpretation of section 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  In the present case, there is sufficient evidence the Veteran meets the threshold criterion for service connection of a current disability.  Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000).  Specifically, the May 2014 medical report noted diagnoses for bilateral CTS, left Achilles tendon tear and an acquired psychological disorder.  Accordingly, the remaining question is whether those conditions are related to service.

After a review of the evidence of record, the Board finds that service connection for bilateral CTS, left Achilles tendon tear and an acquired psychological disorder are not warranted.  In this regard, the Board finds that the second and third Shedden requirements have not been met.

With regard to the May 2014 medical report, the Board notes that the physician, an internist, provided diagnoses for several various physiological and psychological medical conditions including tinnitus, bilateral hearing loss, degenerative disc disease, right thigh myopathy, right thigh meralgia paresthetica, bilateral CTS, chronic low back pain, chronic myositis para-lumbar spine muscles, left Achilles tendon tear, GAD and MDD.  Incredibly, for all diagnosed conditions the physician merely opined they were more probable than not secondary to active duty service.  For the claimed bilateral CTS and psychological disorder, the May 2014 report is the first evidence of record noting diagnoses for such conditions.  Further, the medical report did not include any diagnostic testing or state how such diagnoses were established.  While the physician noted the Veteran was in comprehensive psychological therapy, the medical report does not identify a mental health provider.  As noted above, the Veteran had not identified any outstanding treatment records.  Moreover, as noted above, no rationale was provided and the physician failed to identify any in-service incident for which any of the variously diagnosed conditions were etiologically related.  This is particularly problematic given that the Veteran had no period of active duty, but rather a verified period of initial active duty for training, followed by service in a National Guard component.  Given the relatively short amount of time the Veteran was in a service status, such a conclusory statement with no rationale provides no information of any probative value.

Therefore, the Board finds the May 2014 medical report of no probative value with regard to the issues on appeal.  A medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions).

Importantly, the Veteran has not provided any lay statements or identified any specific in-service event(s) that caused the conditions for which he is claiming service connection.  

Therefore, absent any probative evidence of record establishing an in-service event or any competent medical or lay evidence establishing a nexus for the service connection claims on appeal, the Board finds that the second and third Shedden requirements have not been met.  Although the Veteran is entitled to the benefit-of-the-doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for bilateral CTS, left Achilles tendon tear or an acquired psychological disorder.  The claims are denied.  See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990).



Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10 (2017).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2017).

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran's disability.  38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods 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).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).

When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination.  38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38 C.F.R. § 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996). 

Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59 (2017).  Where functional loss is alleged due to pain upon motion, the function of the musculoskeletal system and movements of joints must still be analyzed.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant.  Johnston v. Brown, 10 Vet. App. 80 (1997).  Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion.  However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance.  Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

The regulations preclude the assignment of separate ratings for the same manifestations under different diagnoses.  The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions.  38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259 (1995).

Lumbar Spine Disability

Schedular ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases or Injuries of the Spine or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  38 C.F.R. § 4.71a (2017).  The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area affected by residuals of injury or disease.  38 C.F.R. § 4.71a (2017). 

Under the General Rating Formula for Diseases or Injuries of the Spine, the diagnostic code criteria pertinent to lumbar spine disabilities provides that a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a combined range of motion of the thoracolumbar spine 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 rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; 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 rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  

A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine (2017). 

Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension.  38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5) (2017).

Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (1) (2017). 

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral extension are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion for the thoracolumbar spine is 240 degrees.  38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (2) (2017).

Round each range of motion measurement to the nearest five degrees.  38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (4) (2017).

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent rating is assigned where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  A 40 percent rating is assigned where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  A 20 percent rating is assigned where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  A 10 percent rating is assigned where there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2017).  An incapacitating episode is defined 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.  38 C.F.R. § 4.71a; Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2017).

The RO has rated the Veteran's lumbar spine disability under DC 5237.  Other disabilities of the lumbar spine are also rated using the General Formula or Intervertebral Disc Formula, so the rating criteria are the same.  DC 5003 also provides ratings for arthritis and directs the rater to first determine if a rating is warranted under the criteria for limitation of motion (LOM) and provides that if the amount of LOM is non-compensable under the criteria for the affected joint then the minimum rating for the affected joint is to be assigned.  38 C.F.R. § 4.71a, DC 5003 (2017).  A rating under DC 5003 cannot be combined with a rating based on LOM.  Therefore, no higher or separate rating is warranted pursuant to DC 5003. 

Initially, the Board notes that the Veteran filed an increased rating claim on May 23, 2014.  The Board further notes that the Court has made it clear that there can be no free standing claim for an earlier effective date because to allow such a claim would be contrary to the principle of finality set forth in 38 U.S.C. § 7105.  See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision, as free-standing claims for earlier effective dates vitiate the rule of finality).  

Therefore, the earliest possible effective date available for an increased evaluation for the Veteran's lumbar spine disability is May 23, 2013; one year prior to the claim for an increased rating.  However, the Board notes that the first evidence of record ascertaining the current nature and severity of the Veteran's lumbar spine disability and allowing for evaluation under the pertinent rating criteria is a November 2015 VA examination report.  Additionally, the Veteran did not submit any medical evidence concerning his lumbar spine disability until January 2015.  Thus, the record does not contain evidence that would warrant an effective date earlier than May 23, 2014.

A July 2013 medical record shows a past medical history of polymyositis and rheumatoid arthritis.  The Veteran complained of lower back pain affecting his left lower extremity.  The physician noted a diagnosis for left lumbar radiculitis and a pelvic traction was ordered.  A July 2013 radiological study revealed the following: a central annular tear associated with mild bulging of the disc and mild inferior bioforaminal narrowing at L1-L2; bulging of the disc that flattened the ventral thecal sac and facet degeneration contributing to mild inferior bioforaminal narrowing at L2-L3; annular tearing associated to a broad bulging disc at L4-L5 flattening the ventral thecal sac and causing some mass effect upon the left descending nerve root; and broad bulging disc flattening the ventral thecal sac without central canal stenosis and facet arthrosis and buckling of the ligamentum flavum with moderate bioforaminal narrowing at L5-S1.

A May 2014 private medical report noted the Veteran presented with low back pain with para-lumbar spine muscle stiffness, numbness, tingling, sensorial loss, cramps, weakness and instability radiating to his hips, thighs, knees and ankles.

At a November 2014 VA examination, the Veteran was diagnosed with moderate low back strain with fibromyositis.  The Veteran complained of daily pain and stiffness in his lower back.  Pain was reportedly worse after inactivity such as prolonged sitting, walking or standing.  The Veteran reported that pain diminished partially with movement and activity.  The Veteran also reported flare-ups and stated that pain increased in intensity after prolonged inactivity.  The examiner noted the following range of motion (ROM) findings: forward flexion to 50 degrees, extension to 20 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 20 degrees.  The examiner found that ROM did not contribute to functional loss, although he did note that pain was exhibited during all ROM testing.  Additionally, the examiner noted an absence of pain with weight bearing.  The examiner also noted moderate localized tenderness along the lumbar paravertebral muscles.  The Veteran was able to perform repetitive use testing with no additional loss of function or additional loss in ROM.  Pain, weakness, fatigability or incoordination was found to significantly limit functional ability following repetitive use testing due to pain and lack of endurance.  The examiner stated that he would need to resort to mere speculation to provide an estimation of additional functional limitation in terms of ROM as the Veteran was not currently exhibiting a flare-up or examined immediately after repetitive use.  The examiner also noted guarding caused by muscle spasm and localized tenderness that did not result in an abnormal gait or abnormal spinal contour.  The examiner did not find the lumbar spine disability manifested by ankylosis, radiculopathy or other neurological abnormalities and noted a normal sensory examination.  Lastly, the examiner noted that the Veteran did not have any bowel or bladder problems or IVDS with episodes requiring bed rest.

Based on the examination findings, the examiner found that the Veteran's lumbar spine disability impacted his ability to work due to limitations on lifting, pushing, pulling or carrying objects weighing 10 pounds or more, doing activities that required rapid trunk movement, or repetitively going from sitting to standing.  The examiner further found the Veteran was limited to sedentary work and that he should not participate in high impact activities.  

The Board will first address the period on appeal prior to November 4, 2015.  After a review of the evidence of record, the Board concludes that a 20 percent disability rating is warranted from May 23, 2014, the date of the claim, to November 3, 2015.  

Initially, the Board notes that since filing his increased rating claim, the Veteran had requested a VA examination to assess the current severity of his lumbar spine disability.  The VA did not obtain a VA examination until November 2015.  The Veteran also submitted evidence showing that his condition might have worsened prior to the November 2015 VA examination.  Accordingly, the Board finds that the November 2015 VA examination report is sufficient to rate the Veteran's back condition throughout this period on appeal.

Thus, during this period on appeal, the Veteran's back disability has been shown to be manifested by forward flexion greater than 30 degrees but not greater than 50 degrees.  In this regard, the Board recognizes that during the November 2015 VA examination, the examiner found that pain, weakness, fatigability or incoordination significantly limited functional ability following repetitive use testing due to pain and lack of endurance.  However, the examiner was unable to provide a finding as to whether such additionally limited ROM and stated that he would need to resort to mere speculation to provide such an estimate.  The Board further recognizes the Veteran's lay statements that pain reportedly was worse during periods of inactivity, and that pain diminished with movement and activity.  Therefore, based on the examiner's inability to provide an estimation of additional loss in ROM without resorting to mere speculation as well as the Veteran's contrary lay statements that movement and activity decreased his symptoms, the Board finds that the evidence does not support a finding that the Veteran's back disability has been shown to be manifested by forward flexion less than 30 degrees.  Accordingly, a higher (40 percent) evaluation is not warranted during either period on appeal.

The Board has also considered higher ratings during both periods on appeal, including based on the Formula for Rating IVDS Based on Incapacitating Episodes.  However, the record does not show, nor has the Veteran asserted, that he had been prescribed bed rest by a physician during either period on appeal.  Therefore, a higher rating based on IVDS symptoms is not warranted.

The Board has also considered assigning higher disability ratings pursuant to 38 C.F.R. § 4.40 and 4.45.  The Board acknowledges the Veteran's reported complaints of pain and painful motion.  However, as noted above, the Veteran has asserted that his symptoms, including pain, were alleviated by movement and activity.  The Board further notes the November 2015 VA examiner's finding that the Veteran's lumbar spine disability impacted his ability to work due to limitations on lifting, pushing, pulling or carrying objects weighing 10 pounds or more, doing activities that required rapid trunk movement, repetitively going from sitting to standing, that the Veteran was limited to sedentary work and that he should not participate in high impact activities.  However, the Board finds that the rating criteria are intended to take into account functional limitations due to painful motion which is already contemplated by the currently assigned 20 percent disability rating.  

Therefore, the Board concludes that the above mentioned functional limitations are thereby contemplated by the currently assigned 20 percent evaluations during both periods on appeal, and the provisions of 38 C.F.R. §§ 4.40, 4.45, could not provide a basis for a higher evaluation.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that in rating limitation of motion outside of the context of DC 5003, painful motion alone may not be deemed limitation of motion).  As such, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, or incoordination.  See 38 C.F.R. §§ 4.40 and 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 

The Board does note that more recent private medical records have noted lumbar radiculitis.  The issue of entitlement to a separate compensable rating for radiculopathy is addressed in the Remand section below.

Lastly, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

In sum, the Board finds that, from May 23, 2014 to November 3, 2015, a 20 percent disability rating is warranted.  Additionally, as of November 4, 2015, the Board finds that a rating in excess of 20 percent disabling is not warranted.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.71a (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for bilateral CTS is denied.

Entitlement to service connection for left Achilles tendon tear is denied.

Entitlement to service connection for an acquired psychological disorder, to include GAD and MDD, is denied.

Entitlement to a 20 percent disability rating, but not higher, as of May 23, 2014 and prior to November 4, 2015, for lumbar spine disability, is granted subject to controlling regulations applicable to the payment of monetary benefits.

Entitlement to a rating in excess of 20 percent disabling, as of November 4, 2015, for lumbar spine disability, is denied.


REMAND

After examining the record, the Board finds that a remand is necessary and that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5103A, and to afford the Veteran VA examinations for his service-connection claim for bilateral hearing loss, tinnitus, right thigh myopathy and right thigh meralgia paresthetica.  Barr v. Nicholson, 21 Vet. App. 303 (2007). 

As noted above, in connection with his May 2014 claim, the Veteran submitted a medical report that noted several diagnoses including bilateral hearing loss, tinnitus, right thigh myopathy and right thigh meralgia paresthetica.  As additionally noted above, the physician who authored the May 2014 medical report offered, at best, a speculative medical opinion linking the claimed disabilities to service.  Accordingly, the Board finds the May 2014 medical report of no probative value.  

1. Hearing Loss and Tinnitus

The Veteran asserts entitlement to service connection for bilateral hearing loss and tinnitus.  Specifically, the Veteran asserts that his bilateral hearing loss and tinnitus is due to traumatic noise exposure during service.

Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2017).

VA's duty to assist a claimant includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on the claim.  38 U.S.C. § 5103A(d)(1) (2012); 38 C.F.R. § 3.159(c)(4) (2017).  The medical examination provided must be thorough and contemporaneous and consider prior medical examination and treatment.  Green v. Derwinski, 1 Vet. App. 121 (1991).  

VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision.  McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2017).  The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold.  McClendon, 20 Vet. App. at 83.

In consideration that the record contains medical diagnoses for hearing loss and tinnitus as well as lay statements asserting that such conditions were caused by acoustic trauma during, and in further consideration that symptoms relating to hearing loss and tinnitus are amenable to lay observation, the Board finds that a VA examination is necessary to determine the nature and etiology of the audiological claims on appeal.  

2. Radiculopathy, Right Thigh Myopathy and Right Thigh Meralgia Paresthetica

As noted above, the November 2015 VA examiner did not find the Veteran's lumbar spine disability manifested by radiculopathy or other neurological abnormalities

However, other contemporary records include a May 2008 private medical record showing the Veteran complained of pain in his hips and legs.  The Veteran was diagnosed with generalized myalgia.  A May 2008 muscle biopsy also revealed a diagnosis for early inflammatory myopathy.  

In August 2008, a private medical record noted clinical symptoms consistent with right sided meralgia paresthetica.  A needle examination found increased insertional activity and mild to moderate spontaneous irritative potentials in the iliopsoas and L4 paraspinal area but associated to small polyphasic potentials as seen in active myopathies.  As such, the physician noted that it was difficult to completely rule-out L4 radiculopathy.

A July 2013 medical record shows a past medical history of polymyositis and rheumatoid arthritis.  The Veteran currently complained of lower back pain affecting his left lower extremity.  The physician noted a diagnosis for left lumbar radiculitis and the Veteran was prescribed pelvic traction.  Another July 2013 medical record noted the Veteran was having radicular type pain.  A radiological study performed that month revealed annular tearing associated to a broad bulging disc at L4-L5 flattening the ventral thecal sac and causing some mass effect upon the left descending nerve root.  An August 2013 MRI noted extensive spondylotic and foraminal compression at multiple levels, more on the left.

A May 2014 private medical report noted the Veteran presented with low back pain with para-lumbar spine muscle stiffness, numbness, tingling, sensorial loss, cramps, weakness and instability radiating to his hips, thighs, knees and ankles.  The physician diagnosed the Veteran with degenerative disc disease, right thigh active myopathy, right thigh meralgia paresthetica, and chronic myositis para-lumbar spine muscles.

Based on the above, the Board finds that an examination is necessary to determine the nature and etiology of any diagnosed myopathy and/or meralgia paresthetica.  Further, any such examination will necessarily provide more information regarding whether the Veteran's lumbar spine disability has been manifested by radiculopathy.  Accordingly, that claim is not ripe for adjudication. 

As noted above, VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision.  McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2017).  The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold.  McClendon, 20 Vet. App. at 83.

Lastly, entitlement to a TDIU is inextricably intertwined with the Veteran's claims on appeal.    




Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file.

2. Then, schedule the Veteran for an examination by an appropriate examiner to determine whether the Veteran has a diagnosis for hearing loss or tinnitus, and if so, whether such is related to service.  Audiometric testing must be conducted in connection with the examination.

With regard to the Veteran's bilateral hearing loss claim, the examiner should provide the following opinion:  

Is it at least as likely as not (50 percent or greater probability) that any hearing loss disability shown on audiometric testing is etiologically related to the Veteran's service?  

With regard to the Veteran's tinnitus claim, the examiner should provide the following opinions:  

(a) Does the Veteran have tinnitus?

(b) If so, is it at least as likely as not (50 percent or greater probability) that any diagnosed tinnitus is etiologically related to the Veteran's service?  

The examiner should review pertinent documents in the Veteran's claims file in connection with the examination.  All indicated studies should be completed.  Reasons should be provided for any opinion rendered.  If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified.

3. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed radiculopathy, right thigh myopathy and/or right thigh meralgia paresthetica.  

With regard to radiculopathy, the examiner should provide the following opinion:  

(a) Does the Veteran have radiculopathy?

(b) If so, is it at least as likely as not (50 percent or greater probability) that any diagnosed radiculopathy was caused or aggravated by the Veteran's lumbar spine disability?  

With regard to right thigh myopathy, the examiner should provide the following opinion:  

(a) Does the Veteran have myopathy of the right thigh?

(b) If so, is it at least as likely as not (50 percent or greater probability) that any diagnosed myopathy of the right thigh was caused or aggravated by the Veteran's lumbar spine disability?  

With regard to right thigh meralgia paresthetica, the examiner should provide the following opinion:  

(a) Does the Veteran have right thigh meralgia paresthetica?

(b) If so, is it at least as likely as not (50 percent or greater probability) that any diagnosed right thigh meralgia paresthetica was caused or aggravated by the Veteran's lumbar spine disability?  

The examiner should review pertinent documents in the Veteran's claims file in connection with the examination.  All indicated studies should be completed.  Reasons should be provided for any opinion rendered.  If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified.

4. Then, readjudicate the claims on appeal, including the claim for a TDIU.  If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then return the case to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
Thomas H. O'Shay
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs