Citation Nr: 20069986 Decision Date: 10/28/20 Archive Date: 10/28/20 DOCKET NO. 14-40 681 DATE: October 28, 2020 ORDER Entitlement to service connection for partial loss of use of the left lower extremity is denied. Entitlement to service connection for partial loss of use of the right lower extremity is denied. Entitlement to service connection for a liver disability resulting in elevated liver enzymes is denied. REMANDED Entitlement to service connection for a kidney disability resulting in high creatinine levels is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has a current left lower extremity disability causing partial loss of use that is separate and distinct from the Veteran’s currently service-connected left lower sciatic nerve radiculopathy and his service-connected left knee disabilities; his left sided symptoms of pain, limitation of motion, numbness and weakness of the left lower extremity are manifestations of his service- connected sciatic nerve radiculopathy and knee disabilities. 2. The preponderance of the evidence of record is against finding that the Veteran has a current right lower extremity disability causing partial loss of use that is separate and distinct from the Veteran’s currently service-connected right lower sciatic nerve radiculopathy and his service-connected right knee disabilities; his right sided symptoms of pain, limitation of motion, numbness and weakness of the right lower extremity are manifestations of his service- connected sciatic nerve radiculopathy and knee disabilities. 3. The preponderance of the evidence of record is against finding that the Veteran currently has a liver disability resulting in elevated liver enzymes; elevated liver enzymes is a symptom or finding and not a chronic disability for which VA disability benefits may be awarded. CONCLUSIONS OF LAW 1. The criteria for service connection for partial loss of use of the left lower extremity have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for partial loss of use of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for a liver disability resulting in elevated liver enzymes have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2001 to March 2009. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 and March 2020, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has filed a VA Form 10182 notice of disagreement in July 2020 to a June 2020 rating decision. The rating decision denied a claim that clear and unmistakable error (CUE) occurred in an October 2009 rating decision. This appeal is governed by the Appeals Modernization Act (AMA). Under the AMA system, that is considered a separate appeal from the current legacy appeal with its own docket number. As such, no action will be taken by the Board at this time, and the issue of CUE in the October 2009 rating decision will be the subject of a later Board decision, if ultimately necessary. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis or cirrhosis of the liver. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. 1. Entitlement to service connection for partial loss of use of the left lower extremity 2. Entitlement to service connection for partial loss of use of the right lower extremity The Board has grouped these two issues together as the Board has determined that the two disabilities have the same relevant facts and analysis. Initially, the Board notes the Veteran is service connected for knee disabilities. Each knee is service connected and rated for patellofemoral pain syndrome as well as a separate rating for limitation of extension. In addition, the Veteran is also service connected for degenerative disc disease of the lumbar spine. As a result of that disability, the Veteran is service connected for the left lower extremity, sciatic nerve radiculopathy, and right lower extremity, sciatic nerve radiculopathy. The service treatment records demonstrate numerous instances when the Veteran was treated for patellofemoral syndrome in both knees. There is no diagnosis, treatment or reports of if a symptom otherwise relating to the lower extremities including partial loss of use for either leg, Dr. P.Y. in April 2011 stated that the Veteran had lost “50 percent or more of the use and function” of his lower extremities “due to his knee conditions.” As the Board reads Dr. D.Y.’s report, the loss if use and function in each disability reflects his opinion as to the severity of the knee disabilities. Dr. P.Y. did not diagnose nor discuss whether the Veteran had any other separate and distinct disability affecting the use and function of either lower extremity. Stated another way, Dr. P.Y. found only the knees affected the legs (i.e., lower extremities). In a December 2011 VA examination, the VA examiner concluded that the Veteran did not currently have a diagnosis for partial loss of use of the bilateral lower extremities. During that VA exam, the Veteran’s lower extremities were reported to be functioning normally, and x-rays and MRI results were normal. The VA examiner stated there is no diagnosis because there is no pathology to render a diagnosis. An August 2014 VA examiner diagnosed the Veteran with bilateral patellar tendinopathy and bilateral patellofemoral syndrome but no other disabilities affecting the lower extremities. The examination report discussed the limitation of function resulting from the knees such as limitation of motion. In September 2019, the Veteran was seen by a VA examiner. The Veteran reported he never had a problem with the central service system (CNS) and his legs work. The VA examiner stated that there was no evidence of a CNS condition or loss of function of either lower extremity. The VA examiner was also unable to confirm a current chronic lower extremity diagnosis with currently available records and/or during examination. The Veteran underwent a February 2020 VA examination to assess the Veteran’s service-connected degenerative arthritis of the spine. During the exam, the examiner found constant bilateral moderate pain and moderate paresthesias. In addition, the Veteran had moderate numbness of the left lower extremity and mild numbness of the right lower extremity. These findings were attributed by the VA examiner to involve the nerve roots and thus linked to the Veteran’s service-connected back disability. In an August 2020 VA examination, the Veteran reported current symptoms of pain, numbness and weakness in both extremities which he treated with Ibuprofen. He stated he had difficulty and limited mobility with everyday tasks and activities such as climbing house stairs or playing and carrying his small children. He also reported mild paresthesias and/or dysesthesias, and mild numbness. Muscle strength was normal without any atrophy. The Veteran had normal reflexes but decreased sensation in the upper anterior thigh and lower leg/ankle. The Veteran had a normal gait. The VA examiner diagnosed mild sciatic incomplete paralysis. The examiner specifically determined the function of each extremity was not so diminished that amputation with a prosthesis would equally serve the Veteran. The Veteran’s bilateral lower extremity radicular symptoms impacted his ability to work in any environment requiring constant sitting; standing for extended periods of time; extend periods of walking; pushing, pulling, lifting, and carrying greater than 15 pounds; and bending and twisting at the waist due to back pain and stiffness that caused the radicular symptoms. The VA examiner determined that it is at least as likely as not that any partial loss of use of either extremity resulted from the Veteran’s service-connected lower extremity sciatic radiculopathies, or bilateral knee disabilities. In particular, the symptoms are consistent with lumbar radiculopathy. Radiculopathy occurs when the nerve roots which exit the spinal canal are being irritated. This results in the typical symptoms of sharp pain, numbness, tingling, muscle cramps and paresthesias. The crucial issue before the Board is whether the Veteran’s symptoms in either extremity are separate and distinct from the sciatic nerve disability or the patellofemoral and two knee disabilities. The most probative evidence establishes that the Veteran does not have such a separate lower extremity disability of either leg that may be service connected. Reading the record as a whole, the Board finds probative the conclusions of the various VA examiners and Dr. P.Y. that the Veteran’s history of symptoms of lower extremity pain, weakness, limitation of knee motion, decreased sensation, mild paresthesias and/or dysesthesias, and mild numbness are symptoms of either the knee or sciatic nerve radiculopathy. They are not manifestations of a separate distinct disability in either leg. There have not been any complaints, treatment, or diagnosis of any additional lower extremity problem in service or since separation. Clearly, the Veteran has suffered and still suffers from lower extremity problems such as pain. However, it is also evident that the Veteran’s symptoms and limitations are only significant knee or radiculopathy problems and not an additional, separate problem in either leg. For these reasons, the Board therefore concludes that the Veteran did not have and does not currently have a separate, distinct lower extremity disability apart from his service- connected radiculopathy and service- connected knee disabilities. To establish entitlement to VA disability compensation, there must be a current disability resulting from the injury. Chelte v. Brown, 10 Vet. App. 268, 271 (1997). As there is no competent evidence of a current right or left lower extremity disability which is separate and distinct from the radiculopathy and knee disabilities, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The evidence is also against a finding of a separate new leg disability at any point during the claims period or shortly prior to the claim being filed. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Furthermore, to grant the Veteran service connection for the symptoms as part of a new lower extremity disability when they are already considered part of the radiculopathy and knee disabilities would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity.” 38 U.S.C. § 1155; Brady v. Brown, 4 Vet. App. 203, 206 (1993). The Board has considered the Veteran’s statements that he has an additional lower extremity disability that causes partial loss of use and function. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., left or right sided weakness or numbness; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or provide an opinion as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the preponderance of the evidence is against the claims and service connection for partial loss of use of the right lower extremity and partial loss of use of the left lower extremity are denied. 3. Entitlement to service connection for a liver disability resulting in elevated liver enzymes The Veteran asserts he has a liver disability related to the medications he takes to alleviate the symptoms of his service- connected knee, back, and shoulder disabilities. He points to some of his lab tests that show elevated liver enzymes. The question for the Board is whether elevated liver enzymes at certain times represent a current disability for VA compensation purposes. A May 2006 service lab test demonstrated a high liver enzyme, ALT (alanine aminotransferase and is sometimes referred to in the record as SGPT) at 81 (normal range 0-65), but another liver enzyme AST (aspartate aminotransferase and is sometimes referred to in the record as SGOT) was normal. In October 2008, the ALT and AST levels were normal although the BUN (blood urea nitrogen) level at 18 (6.0-17.0) was marked as high. The Board notes that the Veteran was treated in service for alcohol abuse starting in March 2006. Following an April 2011 private examination, Dr. P.Y. stated that it is more likely than not that the Veteran’s elevated liver enzymes and elevated creatinine are directly and causally related to side effects of long term aggressive treatment with nonsteroidal anti-inflammatory drug (NSAID) use for his service-connected bilateral shoulder and knee disabilities. In addition, Dr. P.Y. stated that the Veteran should immediately be seen in specialty care to determine if there is permanent damage to his liver or kidneys. Dr. P.Y. noted that elevated liver enzymes that persist generally denote hepatic damage, and that elevated creatinine that persists generally denotes the onset of kidney failure. The Board interprets the report of Dr. P.Y. to conclude that the Veteran’s high liver enzyme levels may have resulted in a chronic liver disability, but further examination would be necessary to determine if the Veteran in fact has such a disability. Stated another way, Dr. P.Y. was raising the issue, but he did not conclude the Veteran as likely as not had a liver disability. The Veteran was seen for a VA examination in September 2019. The VA examiner concluded the Veteran did not any current liver diagnosis or disability which included signs, symptoms, or medications for a liver disability. The examiner noted 2006 service lab test which demonstrated a high liver enzyme, ALT (alanine aminotransferase) at 81 (normal range 0-65), but another liver enzyme AST (aspartate aminotransferase) was normal. In June 2008, another lab test demonstrated normal levels for both ALT and AST. The most recent laboratory findings after service, June 2010 showed AST normal at 36 and ALT at 79 (normal ranged 11-44). In the final remarks section, the examiner stated “no diagnosis of liver condition confirmed. There is no pathology to confirm a diagnosis. There is only a history of slightly elevated ALT but always had normal AST. This is insufficient to warrant a diagnosis.” In August 2020, the Veteran received another VA examination and the examiner reviewed the file. Contemporaneous lab tests demonstrated normal liver function including normal ALT and AST liver enzymes. There were similar lab results in February 2020. The Veteran reported he had a history of elevated liver enzymes in service and when treated at VA. The Veteran stated his medical providers just told him to limit his intake of alcohol and Tylenol, even though he does not drink or take Tylenol. The Veteran’s current symptoms are only the elevated enzymes. He does not take Acetaminophen for body pain. The examiner concluded that there is no evidence of a liver disability because there are no findings, signs and or symptoms to support a diagnosis. The examiner also concluded that it is less likely than not that any diagnosed liver and/or damage is caused by NSAIDs or other medication use for his service-connected disabilities. He noted the Veteran had two instances (October 2010 and January 2010) when the Veteran had mildly elevated SGPT. SGOT levels remained normal. Normally aspartate aminotransferase (AST or SGOT) and alanine aminotransferase (ALT or SGPT) enzymes are predominantly contained within liver cells and to a lesser degree in the muscle cells. If the liver is injured or damaged, the liver cells spill these enzymes into the blood, raising the AST and ALT enzyme blood levels and signaling liver disease. Elevated liver function tests such as enzyme levels are found in approximately 8% of the general population. These elevations may be transient in patients without symptoms with up to 30% elevations resolving after 3 weeks. Labs conducted in February 2020 and as part of the VA examination were within normal limits. Additionally, the Veteran’s Basic Metabolic Panel and urinalysis studies were normal in October 2010, January 2012, and February 2020. For these reasons, it is the VA examiner’s opinion, that the Veteran does not have liver damage or disability attributable to medication including NSAID use. As the Board interprets this report, the most probative evidence establishes that the Veteran does not have a liver disability that may be service connected. The VA examiner noted the Veteran had on occasion elevated ALT but on most occasions, including the most recent lab tests in February and August 2020, the ALTs are normal. AST have always been normal. Absent consistently abnormal liver enzyme levels over time, chronic liver damage or a liver disability does not exist. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66, 70 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician’s opinion. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Dr. P.Y. raised the issue of the Veteran suffering from liver damage because of the abnormal ALT findings noted above. Dr. P.Y., however, stated that elevated liver enzymes that persist generally denote hepatic damage. Since Dr. P.Y.’s report, the Veteran has not had persistent elevated liver enzymes. Thus, the Board finds his report consistent with the VA examiner because the Veteran has not had persistent elevated liver enzymes which means the Veteran does not have a permanent or chronic liver disability. As there is no competent evidence of a current liver disability or disorder, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The evidence is also against a finding of a disability at any point during the claims period or shortly prior to the claim being filed. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In a similar manner, as there is no evidence of any current symptoms related to a liver disorder, the Veteran does not have a valid claim for service connection for an undiagnosed illness or medically unexplained chronic multi symptom illness due to environmental exposure while serving in the Persian Gulf. See 38 C.F.R. § 3.317. Elevated liver enzymes represent a finding or symptom and not a disability in and of itself for which VA compensation benefits are payable. The Court has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). The term “disability” as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In this instance, however, the Board finds there is no medical evidence that the Veteran’s elevated liver enzymes caused functional impairment and the Veteran has not presented any evidence this condition has resulted in diminished function or impairment of earning capacity. No underlying pathology relating to high liver enzymes has been diagnosed or identified, nor is there any objective evidence of an illness, disease, injury causing elevated liver enzymes, or elevated liver enzymes causing a limitation of function. As such, elevated liver enzymes alone do not constitute a disability for which service connection may be granted. The Board recognizes that the Veteran argues he has a liver disability because he has been told after an abnormal liver enzyme test, he should avoid alcohol or Tylenol. He asserts, however, that he was not using alcohol or Tylenol at the time. First, as discussed above, the most probative evidence establishes the Veteran does not have a chronic liver disability, regardless of whether he used alcohol or Tylenol. The Veteran’s assertion or opinion that he has a disability causing a finding such as elevated liver enzymes and the relationship to service is not competent evidence. It is the opinion of a layman and not competent medical evidence of a diagnosis by a medical professional. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction that his mental condition, whatever it is, causes him). Second, the Board finds that the Veteran’s memory is at odds with the record. The abnormal result in April 2006 coincides with his treatment in service for alcohol abuse. Similarly, when the Veteran had an abnormal ALT result in June 2010, the Veteran reported he was using alcohol albeit perhaps at levels that would not be considered abusive. In sum, the law and the evidence demonstrate that the Veteran is not entitled to service connection for elevated liver enzymes. Given the above, the preponderance of the evidence is against a claim for service connection for a liver disability and that claim is denied. REASONS FOR REMAND Entitlement to service connection for a kidney disability resulting in high creatinine levels is remanded. The Veteran filed service connection for a disability causing high levels of creatine. This was filed in June 2011 as part of the same claim as the elevated liver enzymes discussed above. Creatinine levels, while a laboratory finding, is not a liver function test. If blood and/or urine creatinine levels are not normal, it can be a sign of kidney disease. https://medlineplus.gov/lab-tests/creatinine-test/. (accessed October 15, 2020). As noted above, one service test showed a high level of BUN. A BUN, or blood urea nitrogen test, provides important information about kidney function. Id. Accordingly, if the Veteran has a chronic disability causing high levels of creatinine, it is a kidney disability, not a liver disability. The Board also notes the Veteran specifically filed his claim for high levels of creatinine as iatrogenic renal toxicity. Therefore, the Board finds that the Veteran filed a claim for service connection for a kidney disability in addition to his claim for service connection for a liver disability discussed above. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As noted above, in April 2011 Dr. P.Y. found the Veteran had slightly elevated levels of creatinine and elevated creatinine that persists generally denotes the onset of kidney failure. He also indicated further examination was needed to determine whether the Veteran has persistent elevated creatinine and/or the onset of kidney failure. The Board notes Dr. P.Y. did not identify any abnormal creatinine lab test nor did the Board find one in its review of the record. Unfortunately, all VA examinations to date have been focused on whether the Veteran has a liver disability. While the August 2020 VA examiner determined the Veteran does not have a kidney disability causing high levels of creatinine, the examination and analysis focused on the liver and did not provide the Board with a discussion as to whether the Veteran has a kidney disability and if so, whether it is related to service. Because Dr. P.Y. indicated the Veteran might have a kidney disability resulting in abnormal creatinine levels and the Veteran did have at least one abnormal BUN level in service, the Board finds there is insufficient competent medical evidence on file for the VA to make a decision on a claim for service connection for a kidney disability. Once the records development is completed, a VA medical examination and accompanying medical opinion is needed to ascertain whether a kidney disability is present and to ascertain the relationship to service. 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Ongoing VAMC and private medical records should also be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claim regarding high creatinine levels. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current kidney disability had its onset during service or is otherwise related to an in-service injury, event, or disease, to include abnormal BUN level in October 2008. The examiner should also address whether any current disability of the kidney is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) the Veteran’s service-connected disabilities, to include as a result of medications. In offering the opinion, the examiner is asked to identify and discuss the clinical significance of any abnormal lab test related to kidney function. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. C.B. Iwanowski Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell P. Veldenz, 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.