Citation Nr: A19002049 Decision Date: 10/17/19 Archive Date: 10/17/19 DOCKET NO. 190319-6567 DATE: October 17, 2019 ORDER Entitlement to a compensable disability rating for a service-connected deviated septum is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a left foot drop disability, to include as secondary to a lower back disability, is denied. Entitlement to service connection for a right lower extremity sciatica, to include as secondary to a lower back disability, is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for a service-connected left ankle disability is remanded. FINDINGS OF FACT 1. The Veteran’s deviated septum disability does not result in 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 2. The Veteran’s low back disability did not have its onset during active service, nor is it otherwise related to service. 3. The evidence fails to establish that the Veteran has a left foot drop disability that is caused or aggravated by a service-connected disability. 4. The evidence fails to establish that the Veteran has a right lower extremity disability that is caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability rating for a service-connected deviated septum have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.97, Diagnostic Code 6502. 2. The criteria for establishing service connection for a low back disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left foot drop disability, to include as secondary to a lower back disability, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for service connection for a right lower extremity sciatica, to include as secondary to a lower back disability, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to August 1983 and from February 1984 to December 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal from October 2015 of the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA) and a January 2019 Rapid Appeals Modernization Program (RAMP) rating decision. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Board is honoring the Veteran’s choice to participate in VA’s test program, RAMP. The Veteran selected the Higher-Level Review lane when he submitted the RAMP election form in April 2018. Accordingly, the January 2019 RAMP rating decision considered the evidence of record as of the date VA received the RAMP election form. In March 2019, the Veteran requested direct review of this evidence. As explained in the April 2018 RAMP selection form, “direct review” means that the Board’s decision must be based upon the evidence of record at the time of the RAMP rating decision, with no evidence submission or hearing request. As such, the Board may only consider, and has only considered, the evidence of record at the time of the October 2018 RAMP decision. The Board notes that the Veteran submitted evidence during a period of time when new evidence was not allowed, specifically for his lower back claim. See August 2109 private examination report. Therefore, the Board may not consider this evidence. The Veteran may submit this evidence, along with a Supplemental Claim. If the new evidence is relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Specific instructions for filing a Supplemental Claim are included with this decision. Increased Rating Claim Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 Entitlement to a disability rating to a compensable disability rating for a service-connected deviated septum disability is denied. The Veteran is currently rated under Diagnostic Code 6502 for the residuals of deviated septum repair with a noncompensable rating. Diagnostic Code 6502 provides that a 10 percent rating is assigned for traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. See 38 C.F.R. § 4.97, Diagnostic Code 6502. In every case where the requirements for a compensable rating are not met, a zero percent rating may be assigned, even if the diagnostic schedule does not provide for such a noncompensable rating. 38 C.F.R. § 4.31. The Veteran was provided with a VA examination in September 2015, which confirmed that the Veteran had a diagnosis of deviated nasal septum. The Veteran reported suffering a nasal injury while boxing while in service and that he had undergone several septoplasties. He noted nasal congestion and that he took allergy medicine. Upon examination, no obstruction, of at least 50 percent, of the nasal passage on one or both sides was found. The Veteran’s deviated septum was noted as being traumatic. There was no complete obstruction on the left or right side due to traumatic septal deviation. The Veteran did not suffer from any other pertinent physical findings, complications, conditions, signs, and/or symptoms related to his deviated septum repair. The Veteran was not noted to have loss of part of the nose or other scars resulting in disfigurement or other symptoms. Based on the medical evidence of record, the Board finds that the criteria for a compensable rating for a deviated septum have not been met, as the medical evidence of record does not show that the Veteran has more than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. The Veteran’s September 2015 VA examination did not indicate any other nasal symptomatology directly related to his service-connected disability, and, therefore, the Board finds that there are no other Diagnostic Codes for application. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran is entitled to a compensable rating for a deviated septum, and, therefore, the claim is denied. Service Connection Claims Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of 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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Additionally, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Entitlement to service connection for a low back disability is denied. The Veteran asserts that his low back disability was due to his service. Specifically, the Veteran reports long field and road marches with heavy packs and running in boots. Service treatment records show that a medical note dated in February 1981 reflects that the Veteran complained of back pain. An assessment of functional back syndrome was provided. A July 2014 private treatment note shows an assessment of lumbar disc displacement. It was noted that the Veteran had a problem after a sports injury. Pain was noted as a 10 out of 10. A private medical note dated in August 2014 shows that the Veteran underwent back surgery for a left L5-S1 foraminal stenosis. A December 2014 private medical note shows that the Veteran had an excision of back mass performed. A March 2017 back examination shows that the Veteran reported back pain with tightness and stiffness. Diagnoses of mechanical back pain syndrome, lumbosacral sprain, degenerative disc disease, radiculopathy and vertebral disc displacement were provided. Symptoms of pain on movement and interference with sitting were noted. The Veteran underwent a VA back examination in November 2017. Diagnoses of degenerative arthritis of the spine and degenerative disk disease of the lumbar spine were provided. The Veteran reported experiencing severe pain and stiffness. Difficulty moving was also noted. The VA examiner opined that the condition claimed was less likely than not incurred in or cause by the claimed in-service injury, event or illness. The VA examiner noted a review of the Veteran’s claims file, to include an episode of low back pain during active duty service. On the separation examination, the Veteran did not indicate low back pain. The VA examiner stated that there was no evidence of ongoing treatment for a back condition after military service until approximately about 30 years later in 2014, when the Veteran was treated for acute back pain from degenerative disk disease of the lumbar spine that caused a left foot drop. After a review of the record, the Board finds that the preponderance of the evidence is against the claim of service connection for a low back disability. The Veteran is currently diagnosed with degenerative arthritis and degenerative disk disease of the lumbar spine. However, there is no medical opinion linking the Veteran’s low back condition to service. The only probative medical opinion of record addressing the relationship between the current condition and service is that of the VA examiner, and such opinion is against the claim. In this regard, the Board finds the opinion of the November 2017 VA examiner to be most probative. The opinion was provided based upon comprehensive review of the claims file and examination of the Veteran, and provided an adequate rationale that considered the Veteran’s in-service treatment, post service treatment and the Veteran’s self-reported history. See Nieves-Rodriguez v. Peake, supra. Further, there is no competent and probative opinion to the contrary. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of a back disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, supra. In this regard, the determining the diagnosis and etiology of the condition requires medical testing and training. Thus, the Veteran’s opinion as to the cause of his claimed back condition is not competent medical opinion. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, service connection is not warranted. Entitlement to service connection for a left foot drop disability, to include as secondary to a lower back disability and entitlement to service connection for a right lower extremity sciatica disability, to include as secondary to a lower back disability are denied. The Veteran asserts that his left foot drop and right lower extremity sciatica are due to his back condition. See Notice of Disagreement dated in February 2016. The evidence does not show that his claimed conditions were otherwise related to service. A review of the post service medical records reflects an August 2014 private medical note that shows a diagnosis of low back pain with left leg pain with mild left foot drop. A January 2015 private treatment note shows that the Veteran complained of lower back pain and a left foot drop. A March 2017 back examination shows that the Veteran was diagnosed with radiculopathy. It was noted that he experienced mild intermittent pain in his left lower extremity. The Veteran’s November 2017 VA back examination report shows that he experienced moderate paresthesias and numbness in his left lower extremity and moderate radiculopathy in his left leg. The VA examiner noted that there was no evidence of radiculopathy during active duty service. A December 2017 VA treatment note shows an assessment of chronic low back pain and sciatica. The finding set forth earlier in this decision reflects that the Veteran is not service connected for a low back disability. The theory of entitlement on a secondary basis presupposes that there is an underlying service-connected disability. See 38 C.F.R. § 3.310. As there is no service-connected low back disability, there is no factual or legal merit to the secondary service connection claim. As noted above, the Veteran has not directly asserted that the claimed left foot drop and right lower extremity sciatica disabilities are etiologically related to service, and the evidence does not otherwise suggest such a theory of service connection. Thus, the service connection claims must be denied. REASONS FOR REMAND Entitlement to a disability rating in excess of 10 percent for a service-connected left ankle disability is remanded. During the pendency of the appeal, the United States Court of Appeals for Veterans Claims (Court) has held that a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. That final sentence of this regulation directs that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, combined with the range of motion of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). This information is not indicated in the September 2015 VA examination report. Providing an inadequate examination is a shortcoming in the duty to assist. Thus, the new VA examination must conform to the Court’s decision in Correia. The matters are REMANDED for the following action: Schedule the Veteran for a VA orthopedic examination to evaluate to determine the severity of his service-connected left ankle disability, to include the required testing pursuant to the holding in Correia. The entire claims file must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. The examiner should provide an assessment of the current nature of the Veteran’s left ankle disability. Findings reported should include those related to pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite joint. Accordingly, the examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with the condition. Also, all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups should be reported. If for any reason the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. A complete rationale must be provided for all opinions expressed and conclusions reached. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.