Citation Nr: 1809570 Decision Date: 02/16/18 Archive Date: 02/27/18 DOCKET NO. 14-11 183A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral shin splints. 2. Entitlement to a rating in excess of 50 percent for service-connected anxiety disorder. 3. Entitlement to a rating in excess of 10 percent for a service-connected right knee disability. 4. Entitlement to a rating in excess of 10 percent prior to March 17, 2014, a compensable rating from March 17, 2014, to August 10, 2017, and in excess of 10 percent from August 10, 2017, for a service-connected left ankle disability. 5. Entitlement to service connection for hyperlipidemia. 6. Entitlement to a compensable rating prior to January 15, 2015, and in excess of 30 percent afterwards, for service connected liver tumor with IBS (digestive system disability). 7. Entitlement to separate ratings for service-connected liver tumor with irritable bowel syndrome (IBS). 8. Entitlement to service connection for hypertension. 9. Entitlement to service connection for erective dysfunction, to include as secondary to a service connected disability and/or medications prescribed for a service-connected disability. 10. Entitlement to a compensable rating prior to March 17, 2014, and in excess of 10 percent afterwards, for a service-connected left knee disability. 11. Entitlement to a compensable rating prior to January 15, 2015, and in excess of 10 percent afterwards, for service connected bilateral plantar fasciitis. REPRESENTATION Veteran represented by: Sean A. Kendall, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Army from June 2007 through May 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2017. A transcript of that hearing is of record. The issues of entitlement to increased ratings for a left knee disability and bilateral plantar fasciitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an October 2016 statement and before the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his service connection claim for bilateral shin splints and his increased rating claims for his anxiety disorder, right knee disability, and left ankle disability. 2. At the May 2017 Board hearing and before the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his service connection claim for hyperlipidemia. 3. From May 13, 2011, the Veteran's digestive system disorder results in diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. 4. The Veteran's liver tumor and IBS are both considered to be diseases of the digestive system, and thus, are not entitled to separate ratings. 5. Resolving all doubt in favor of the Veteran, his hypertension is the result of his active military service. 6. Resolving all doubt in favor of the Veteran, his erectile dysfunction is the result of medication taken to treat his service-connected acquired psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the service connection claim for bilateral shin splints have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the increased rating claim for anxiety disorder have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of the increased rating claim for a right knee disability have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for withdrawal of the increased rating claim for a left ankle disorder have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 5. The criteria for withdrawal of the service connection claim for hyperlipidemia have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 6. The criteria for a schedular rating of 30 percent, but no higher, for a digestive system disability beginning May 13, 2011, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7319 (2017). 7. The criteria for separate ratings for IBS and a liver tumor have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.113, 4.114, Diagnostic Codes 7301-29, 7331, 7342, and 7345-48 (2017). 8. The criteria for service connection for hypertension have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 9. The criteria for service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claims at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), VA treatment records, and private treatment records have been obtained. Additionally, the Veteran testified before the Board in May 2017. The Veteran was also provided VA examinations and neither the Veteran, nor his representative, has objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by her authorized representative. Id. In the present case, in an October 2016 statement, the Veteran expressly withdrew his appeal with regard to the issues of service connection for bilateral shin splints and the issues of increased ratings for anxiety disorder, a right knee disorder, and a left ankle disorder. At the May 2017 Board hearing, the Veteran expressly withdrew his appeal with regard to the issue of service connection for hyperlipidemia. The Veteran withdrew the above appeals prior to promulgation of an appellate decision; hence, there remain no allegations of errors of fact or law for appellate consideration with respect to these specific matters. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are therefore dismissed. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran was granted service connection for a digestive system disability by a February 2012 rating decision and initially rated at a noncompensable rating under Diagnostic Codes 7319 and 7345 effective May 13, 2011, the day after his separation from service. A May 2017 rating decision granted an increased rating of 30 percent under Diagnostic Code 7345-7319 effective January 15, 2015. The Veteran disagrees with the assigned ratings and asserts that he is entitled to higher ratings. At the hearing, he testified that he experiences right upper quadrant pain and fatigue. Under Diagnostic Code 7319, a noncompensable rating is warranted for mild irritable colon syndrome with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent is warranted for moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. A 30 percent is warranted for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. Under Diagnostic Code 7345, a noncompensable rating is warranted for nonsymptomatic chronic liver disease. A 10 percent is warranted for intermittent fatigue, malaise, and anorexia, or incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent is warranted for daily fatigue, malaise, and anorexia requiring dietary restriction or continuous medication, or incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. A 40 percent is warranted for daily fatigue, malaise, and anorexia with minor weight loss and hepatomegaly, or incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60 percent is warranted for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or incapacitating episodes having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. A 100 percent is warranted for near-constant debilitating symptoms. 38 C.F.R. § 4.114, Diagnostic Code 7345. In July 2011, just two months after his separation from service, the Veteran was afforded a VA examination for his IBS. He reported that his IBS resulted in nausea and vomiting, diarrhea, alternating diarrhea and constipation. He reported experiencing abdominal pain that occurred more than two-thirds of the year. In April 2017, the Veteran was afforded a VA examination for his IBS. The examiner indicated that the Veteran's IBS required continuous medications for control. The examiner indicated that the Veteran had alternating diarrhea and constipation and frequent, nearly daily, diarrheal episodes after abdominal cramping. Looking at the evidence of record, the Veteran's IBS has resulted in findings consistent with a 30 percent rating, the maximum rating, under Diagnostic Code 7319. At both VA examinations, he has been found to have alternating diarrhea and constipation with more or less constant abdominal distress. As the criteria for a 30 percent rating beginning May 13, 2011, the day after his separation from service, for IBS have been met, the appeal is granted. Regarding the Veteran's liver tumor, his clinical records show that he was treated for his liver tumor. However, his medical records do not describe the results of any specific findings consistent with a rating in excess of 30 percent. In July 2011, the Veteran was afforded a VA examination for his liver. He reported that his liver did not result in easy fatigability, gastrointestinal disturbances, nausea and vomiting, loss of appetite, arthralgia, jaundice, or abdominal pain. He also reported that his liver dysfunction did not cause incapacitation. On examination, there was no evidence of liver enlargement, and his liver function tests were within normal limits. In December 2016, the Veteran's treating provider indicated that his liver tumor resulted in daily fatigue, arthralgia, and right upper quadrant pain and intermittent nausea. The provider reported that the Veteran had to follow dietary restrictions of avoiding fats and increasing fiber intake. The provider indicated that the Veteran's liver tumor resulted in less than one week of incapacitating episodes over the past 12 months. In April 2017, the Veteran was afforded a VA examination for his liver. The examiner indicated that the Veteran's liver tumor did not result in any incapacitating episodes. Here, the Veteran has not specifically identified any liver symptoms which would merit a schedular rating in excess of 30 percent. The medical evidence does not establish that the Veteran's liver tumor has resulted in any weight loss, hepatomegaly, incapacitating episodes, or near constant debilitating symptoms. As such, a schedular rating in excess of 30 percent for the Veteran's digestive system disability is not warranted. Accordingly, a schedular rating of 30 percent from May 13, 2011, for the Veteran's digestive system disability is granted. The criteria for a rating in excess of 30 percent for the Veteran's digestive system disability have not been met. Separate Ratings In a February 2012 rating decision, the Veteran was originally granted service connected for IBS initially rated a noncompensable rating effective May 13, 2011, under Diagnostic Code 7319 for irritable colon syndrome. He was also granted service connection for a liver tumor at a noncompensable rating effective May 13, 2011, under Diagnostic Code 7344-7345 for chronic liver disease without cirrhosis. In a May 2017 rating decision, his IBS and liver tumor were combined and recharacterized as a liver tumor with IBS and he was granted an increased rating of 30 percent effective January 15, 2015. The RO combined these two disabilities as they were both a digestive condition. At the May 2017 Board hearing, the Veteran asserted he was entitled to separate ratings for these two service-connected disabilities. The Board notes that 38 C.F.R. § 4.113 states that "diseases of the digestive system, particularly within the abdomen, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Accordingly, certain co-existing diseases do not lend themselves to separate ratings without violating the principle against pyramiding." 38 C.F.R. § 4.113. Further, 38 C.F.R. § 4.114 states that Diagnostic Codes 7301 to 7329, 7331, 7342, and 7345 to 7348 are not to be separately rated but, rather, a single evaluation is assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevations. 38 C.F.R. § 4.114. As discussed above, the Veteran's IBS is assigned the maximum 30 percent rating beginning May 13, 2011, the day after his separation from service. Regarding the Veteran's liver tumor, at the July 2011 VA examination, he reported that his liver did not result in easy fatigability, gastrointestinal disturbances, nausea and vomiting, loss of appetite, arthralgia, jaundice, abdominal pain, or incapacitation. In December 2016, the Veteran's treating provider indicated that his liver tumor resulted in daily fatigue, arthralgia, and right upper quadrant pain and intermittent nausea. The provider reported that the Veteran had to follow dietary restrictions of avoiding fats and increasing fiber intake. The provider indicated that the Veteran's liver tumor resulted in less than one week of incapacitating episodes over the past 12 months. In April 2017, the Veteran was afforded a VA examination for his liver. The examiner indicated that the Veteran's liver tumor did not result in any incapacitating episodes. Here, the Veteran has not specifically identified any liver symptoms which would merit a schedular compensable rating. The medical evidence does not establish that the Veteran's liver tumor has resulted in any anorexia or resulted in incapacitation episodes of at least on week. The Veteran's predominant disability is IBS, which is now assigned a 30 percent schedular rating. The Veteran's liver tumor alone would be evaluated at a noncompensable schedular rating. As such, the overall disability does not warrant a higher rating. Accordingly, separate ratings for the Veteran's IBS and liver tumor are not warranted, and his claim is denied. Service Connection In order to establish entitlement to service connection, there must be (1) medical 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 of injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Secondary service connection may be granted for a disability which is proximately due to, the result of, or aggravated by an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Hypertension The Veteran's STRs show that he had normal blood pressure at his entrance examination in May 2007. However, after his entrance, his STRs show that the Veteran was treated for hypertension throughout his active service. At the May 2017 hearing, the Veteran credibly testified that he was treated for hypertension during his active service. The Veteran's testimony also is given great probative weight as it is consistent with the medical record showing an onset of hypertension during his active military service. As such, the criteria for service connection have been met and the Veteran's claim is granted. Erectile Dysfunction The Veteran is service connected for an anxiety disorder and he believes that his erectile dysfunction is secondary to medications prescribed for his acquired psychiatric disability. The Veteran testified that he started having problems with erectile dysfunction in service. In July 2015, Dr. Maria Grove reported that based on a review of the Veteran's medical records, that his erectile dysfunction was medication induced. In January 2016, a VA examiner indicated that the Veteran's erectile dysfunction was at least as likely as not attributable to his acquired psychiatric disability. As such, the Board finds that at most they show that the evidence for and against the Veteran's claim is in relative equipoise. In such circumstances, the regulations dictate that reasonable doubt is to be resolved in the Veteran's favor. Accordingly, the Veteran's claim for service connection for erectile dysfunction is granted. ORDER The appeal of the claim for entitlement to service connection for bilateral shin splints is dismissed. The appeal of the claim for entitlement to an increased rating for anxiety disorder dismissed. The appeal of the claim for entitlement to an increased rating for a right knee disability is dismissed. The appeal of the claim for entitlement to an increased rating for a left ankle disability is dismissed. The appeal of the claim for entitlement to service connection for hyperlipidemia is dismissed. A schedular rating of 30 percent beginning May 13, 2011, for a digestive system disability is granted, subject to the provision governing the award of monetary benefits. Separate ratings for service-connected IBS and a liver tumor is denied. A rating in excess of 30 percent for a digestive system disability is denied. Service connection for hypertension is granted. Service connection for erectile dysfunction is granted. REMAND Regarding the Veteran's increased rating claims for a left knee disability and bilateral plantar fasciitis, the Veteran was last afforded a VA examination in July 2011. As such, a new examination is required to evaluate the current nature and severity of the Veteran's left knee disability and bilateral plantar fasciitis. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected left knee disability and bilateral plantar fasciitis. In so doing, the examiner should ensure to the extent possible, consistent with 38 C.F.R. § 4.59, that the examination report include the results of the Veteran's active and passive motion, in addition to the results following repetitive motion testing. If it is not possible to complete any of the range of motion testing described above, it should be explained why. Failure to do so will result in an examination report being found inadequate. 2. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran 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). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs