Citation Nr: 1817382 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 14-07 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for residuals of tear of the peritoneum. 2. Entitlement to service connection for residuals of septorhinoplasty. 3. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the thoracolumbar spine status post disc replacement L4-L5 with facet syndrome. 4. Entitlement to an evaluation in excess of 10 percent for reflex sympathetic dystrophy affecting the left leg. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2006 to December 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. FINDINGS OF FACT 1. The preponderance of the evidence shows the Veteran's residuals of tear of the peritoneum are etiologically related to active service. 2. The preponderance of the evidence shows the Veteran's residuals of septorhinoplasty are etiologically related to active service. 3. Throughout the appeal period, the Veteran's lumbar disability has been manifested by limited range of motion, with forward flexion to 60 degrees or better, and with pain on motion. 4. The preponderance of the evidence shows that throughout the appeal period, the Veteran's neurological disability affecting the left lower extremity has been manifested by no more than mild incomplete paralysis of the affected nerve. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of tear of the peritoneum have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307 (2017). 2. The criteria for service connection for residuals of septorhinoplasty have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307 (2017). 3. The criteria for a rating in excess of 20 percent for a lumbar disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2017). 4. The criteria for a rating in excess of 10 percent for reflex sympathetic dystrophy affecting the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 8520, 8620, 8720 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). The Board has also satisfied its duty to assist. 38 U.S.C. § 5103A; 38 C.F.R. 3.159. VA has obtained all identified and available treatment records for the Veteran. In addition, the Veteran has undergone VA examinations in connection with each of her claims. The Board finds the examinations adequate, because in the aggregate, they include reviews of the medical file, interviews of the Veteran, and examination findings supported by rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of her appeal. The Veteran has not identified any outstanding evidence that needs to be obtained. Entitlement to service connection for residuals of tear of the peritoneum Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309 (2016). Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2017). The record reflects that the Veteran underwent in-service lumbar surgery which resulted in complications including multiple tears of the peritoneal sack. In the surgery's immediate wake, and from that point, the Veteran has complained of symptoms associated with the injury. Among these complaints number frequent bouts of sharp left lower quadrant pain. That the Veteran underwent lumbar surgery and that she suffered complications is not in dispute in this case. Further, the documented medical evidence of frequent complaints of abdominal pain and other symptoms beginning in the wake of a surgery that involved as a complication multiple tears of the peritoneal sack convinces the Board that the Veteran's current symptomatology is related to the in-service procedure. The Board has considered the VA examiners' opinions of record, including the July 2017 examiner who indicated the medical evidence failed to reveal documented findings of a chronically established diagnosis of peritoneal adhesions secondary to lumbar surgery, while showing a lack of gastrointestinal treatment sought or received. However, as the opinion does not address the numerous complaints evident in the record of abdominal pain and flare-ups, and does not suggest any alternative provenance for the Veteran's symptomatology, the Board considers it inadequate. Greater probative value is given to the Veteran's consistent and credible complaints of abdominal pain related to the peritoneal tear and beginning in its immediate wake. Accordingly, and resolving all reasonable doubt in the Veteran's favor, the Board finds service connection is warranted for residuals of a peritoneal tear. Entitlement to service connection for residuals of septorhinoplasty The Veteran contends that she suffered an in-service injury to her face, resulting in a deviated nasal septum and disordered breathing. She subsequently underwent septorhinoplasty, in the wake of which she has complained of nose and facial pain, as well as daily nosebleeds. The Veteran's service treatment records corroborate her account of her injury; April 2008 service treatment records note the accident during which a fellow service member inadvertently hit the Veteran in the nose with an M-16. The Veteran subsequently underwent surgery, with the above-noted complications occurring since that time. The Veteran underwent a VA examination in July 2017. That examiner documented the in-service injury and surgery, noting the procedure resulted in only partial resolution of the Veteran's symptoms, including headache pain and nasal obstruction, but indicated that the Veteran had not complained of sinus-related symptoms since the procedure was performed. The Board views this examination and opinion as largely corroborative of the Veteran's contentions, although it omits the Veteran's documented complaints of daily nosebleeds, and finds that it only serves to bolster her contentions with respect to her claim of ongoing residuals. Critically, the examiner concedes that the procedures has only resulted in limited symptom relief. As such, and resolving all reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for residuals of septorhinoplasty is warranted. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the thoracolumbar spine status post disc replacement L4-L5 with facet syndrome Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying schedular criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As with all claims for VA disability compensation, the Board must assess the credibility and weigh all the evidence, including lay and 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. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998). The Veteran's lumbar disability is currently evaluated as 20 percent disabling. She states that her symptoms warrant a higher evaluation. Disability of the spine may be evaluated under either the General Rating Formula or under the formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Id. Under the General Rating Formula, a 20 percent rating 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 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. Id. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Under Diagnostic Code 5243, incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent rating. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is assigned in the case of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The record reveals a history of in-service low back pain, and a lumbar discectomy at L4-5, resulting in limitation of motion and symptoms including pain, stiffness, and neurological symptoms. The Veteran has been afforded several VA examinations to evaluate the nature and severity of her lumbar disability. The first was performed in June 2010. At that examination, the Veteran demonstrated forward flexion to 45 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 17 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 25 degrees, with pain on motion, tenderness to palpation, and guarding. A September 2015 VA examination revealed a degree of improvement in range of motion, the Veteran demonstrating flexion to 90 degrees, extension to 25, right and left lateral flexion to 30, and right and left lateral rotation to 30. Pain, tenderness, and guarding were again noted. A final VA examination was conducted in July 2017. At that examination, the Veteran demonstrated flexion to 70 degrees, extension to 30, right and left lateral flexion to 30 and right and left lateral rotation to 30. There was no loss of range of motion after three repetitions of testing. Pain was noted on examination, but the examiner indicated it did not rise to such a level as to cause functional loss. There was no tenderness to palpation, no guarding and no spasms. The examiner concluded that based on testing, pain, weakness, fatigability or incoordination would not be expected to limit functional ability with repeated use over time or during flare-ups. None of the examinations demonstrate limitation of motion sufficient to meet the criteria for a 40 percent evaluation, as there is no flexion 30 degrees or lower, and no ankylosis. Moreover, as to additional compensation due to functional loss, the Board finds that the results of this most recent examination present the clearest picture of the Veteran's lumbar symptomatology. Critically, the examination is thorough and contains reasoned evaluations of the Veteran's likely functional capacity with repeated use over time and during flare-ups. The Veteran's measured range of motion has been limited by her lumbar disorder. However, the degree of limitation fails to rise even to the level of what is contemplated for the 20 percent rating already assigned. In fact, the record shows an overall trend of improved range of motion during the appeal period, as the greatest degree of range of motion limitation was recorded at the Veteran's first VA examination. Hence, while the Veteran's examinations have revealed pain on motion, her tested range of motion does not approach the degree of limitation contemplated for additional compensation based on functional loss. As such, the Board finds the Veteran is adequately compensated for her lumbar disability by the current 20 percent rating. Entitlement to an evaluation in excess of 10 percent for reflex sympathetic dystrophy affecting the left leg For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term "incomplete paralysis," indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The Veteran's reflex sympathetic dystrophy has been rated under Diagnostic Code 8520, which deals with disability affecting the sciatic nerve. Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, and flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. Neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. Under Diagnostic Code 8520, for incomplete paralysis, 8620 for neuritis, and 8720 for neuralgia, a 10 percent disability rating is assigned for mild incomplete paralysis. If the condition is considered "moderate," a 20 percent disability rating is provided. If "moderately severe," a 40 percent rating is assigned, and if "severe, with marked muscular atrophy," a 60 percent rating is assigned. With complete paralysis, as described above, an 80 percent rating is assigned. It should also be noted that use of terminology such as "severe" 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 an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran is currently in receipt of a 10 percent rating for her neurological disability. June 2010 VA treatment notes show complaints of left lower extremity symptoms including thigh and calf pain, worsened by cold weather, dating to the Veteran's in-service lumbar surgery. The Veteran also complained of weekly flare-ups. These complaints have been advanced consistently over the course of the appeal period. Notes from a June 2010 VA general medical examination show complaints of radicular pain in the left thigh and calf, with pain and hypersensitivity in the left foot, with a degree of weakness affecting the 3rd, 4th, and 5th toes of the left foot. The Veteran's gait does not appear to have been affected. March 2011 EMG testing was considered normal, the accompanying notation indicating "[t]here is no electrodiagostic evidence of a left lumbosacral plexopathy or ...radiculopathy." At her September 2015 VA examination, the Veteran had no muscle atrophy, while demonstrating full movement of her ankles and toes, with normal deep tendon reflexes, and normal sensory examination. Straight leg raise testing was negative. The examiner concluded the Veteran did not appear beset by radicular pain, and had no other signs or symptoms of radiculopathy. The Veteran underwent a final VA neurological examination in July 2017. The examiner explained that the Veteran's reflex sympathetic dystrophy was not to be construed strictly as a diagnosis, but rather as a term applied to a group of symptoms including pain, adding that EMG testing in the record was negative for any nerve disorder. Further, the July 2017 reflex and sensory examinations were normal, as was the Veteran's gait. Hence, the examiner opined the Veteran faced no functional impairment from any disorder of the nerves. Considering the totality of this evidence, the Board finds the Veteran is adequately compensated by the currently assigned 10 percent rating. The Veteran's symptomatology does not appear to have been productive of measurable functional loss, and the most recent VA examination failed to reveal radicular symptoms of any kind. As such, the Board finds entitlement to a rating in excess of 10 percent is not warranted. ORDER Entitlement to service connection for residuals of tear of the peritoneum is granted. Entitlement to service connection for residuals of septorhinoplasty is granted Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine status post disc replacement L4-L5 with facet syndrome is denied. Entitlement to a disability rating in excess of 10 percent for reflex sympathetic dystrophy of the left leg is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs