Citation Nr: 21001668 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-19 950A DATE: January 11, 2021 ORDER Entitlement to service connection for right foot compartment syndrome is denied. Entitlement to an initial disability rating in excess of 10 percent for right wrist tendonitis is denied. REMANDED Entitlement to an initial disability rating in excess of 20 percent for left shoulder tendonitis is remanded. FINDINGS OF FACT 1. The preponderance of evidence fails to establish that the Veteran has right foot compartment syndrome that is the result of a disease or injury during his active duty service. 2. The Veteran’s right wrist disability has been manifested by limitation of motion and pain, but no ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right foot compartment syndrome have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a rating in excess of 10 percent for right wrist tendonitis have not been met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 4.1-4.16, 4.27, 4.40-4.71, 4.71a, DC 521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1991 to April 2013. This appeal arises from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and was remanded by the Board of Veterans’ Appeals (Board) in October 2019. The October 2013 rating decision granted service connection for left shoulder tendonitis and right wrist tendonitis and assigned noncompensable (zero percent) ratings effective May 1, 2013, for both disabilities. Thereafter, in a November 2017 rating decision, the RO increased these ratings from zero to 20 percent for left shoulder tendonitis, and from zero to 10 percent for right wrist tendonitis, both effective May 1, 2013. The increased ratings constitute a partial grant of the benefits sought on appeal; therefore, these increased rating issues remain on appeal for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Board finds that the duties to notify and assist have been met. A medical examination or opinion is necessary “if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim” and (1) the record contains competent evidence of a currently diagnosed disability or persistent or recurrent symptoms of disease; (2) the evidence establishes that the Veteran suffered an in-service event, injury, or disease; and (3) the evidence indicates that the claimed disability or symptoms may be associated with the established in-service event, injury, or disease or with another service-connected disability. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). As will be discussed in more detail below, the Veteran has not been diagnosed with compartment syndrome of the right foot. Instead, the evidence shows that he has had compartment syndrome of the legs, not the right foot. Nevertheless, VA afforded the Veteran examinations for the right foot compartment syndrome claim in July 2013 and December 2019, and for right wrist tendonitis in July 2013, August 2017, and December 2019. Neither the Veteran nor the representative has raised contentions regarding notice or assistance. Accordingly, the duties to notify and assist will not be further addressed. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board”). 1. Entitlement to service connection for right foot compartment syndrome is denied. 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. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In his January 2013 claim, the Veteran asserted that he has bilateral compartment syndrome of the feet and also osteoarthritis of the right foot that warrant service connection. By way of background, the October 2013 rating decision denied service connection for “right foot compartment syndrome, osteoarthritis,” and accordingly, the Board characterized the issue as “right foot compartment syndrome and osteoarthritis” in the October 2019 remand. In the October 2019 remand, the Board also remanded the issue of entitlement to service connection for right foot plantar fasciitis. While on remand, the RO, in an August 2020 rating decision, granted service connection for “right foot plantar fasciitis with degenerative arthritis.” Thus, because service connection for right foot plantar fasciitis now includes degenerative arthritis, which is equivalent to osteoarthritis, the issue of right foot osteoarthritis is no longer on appeal before the Board as the benefit has been granted in full. See Dorland’s Illustrated Medical Dictionary 1344 (32d ed. 2012) (noting degenerative joint disease, osteoarthritis, and degenerative arthritis are interchangeable terms); see also Greyzck v. West, 12 Vet. App. 288, 291 (1999) (noting that the terms osteoarthritis, degenerative arthritis, and degenerative joint disease are synonymous with each other). As such, the Board has recharacterized the right foot compartment syndrome issue as reflected above. The Veteran’s service treatment records (STRs) do not include complaints, symptoms, treatment, or diagnoses related to right foot compartment syndrome. Instead, the STRs show compartment syndrome of the legs. See, e.g., May 7, 2008, STR showing calf tightness bilaterally after running and bilateral lower extremity pain with running with severe pain over the tibia into the lateral legs. This STR also shows that the orthopedic surgeon examined the Veteran’s legs in connection with suspected exercise-induced compartment syndrome; the STRs are negative for compartment syndrome of the right foot. VA afforded the Veteran examinations in July 2013 and December 2019. The July 2013 examiner indicated that the Veteran had a history of “shin splints” when questioned about whether the Veteran had tibial and/or fibular impairment, to include medial tibial stress syndrome (shin splints), stress fractures, and chronic exertional compartment syndrome. The examiner did not indicate that the Veteran had chronic exertional compartment syndrome of the right foot. Rather, the examiner concluded that severe pain in the anterior tibia (for which the Veteran was evaluated for shin splints, stress fractures, and compartment syndrome) had resolved. In the October 2019 remand, the Board requested that the Veteran be afforded an examination to confirm whether he had right foot arthritis. VA then afforded the Veteran an examination in December 2019. The Veteran complained of a right foot condition that began with pain and cramping and a bunionectomy “that never healed right.” The Veteran reported that his right foot condition had worsened and that he has significant pain across his toes, as well as right foot cramping and heel pain. The examiner reported that the Veteran had right foot degenerative arthritis. However, the examiner also made the following conclusion: the diagnosis of right foot compartment syndrome cannot be made at this time due to lack of symptoms indicating compartment syndrome at the examination. As rationale for this conclusion, the examiner explained that there is no diagnosis of right foot compartment syndrome in the STRs or post-separation records. Furthermore, the Veteran has not asserted that he has right foot symptoms that are not already accounted for by his already service-connected right foot disabilities, to include status post right foot bunionectomy and right foot plantar fasciitis with degenerative arthritis. The evaluation of the same disability under several DCs, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). None of the competent medical evidence suggests that the Veteran has right foot compartment syndrome. Instead, the evidence shows that he may have had in-service events that led to compartment syndrome of the legs. “In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (current disability element of a service connection claim is satisfied when a claimant has a disability at the time a claim is filed or during the pendency of the claim); see generally Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Medical evidence is not categorically required to establish an element of the claim. Here, the Board is not unequivocally rejecting lay evidence but, instead, finds that it is not sufficient to substantiate the claim. Although the Veteran has submitted a claim for right foot compartment syndrome, there is no indication in the evidence that he has any such diagnosis, specifically for the right foot. A veteran bears the evidentiary burden to establish all material elements of a claim. See 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). Unlike many areas of law, the claimant in the VA benefits system, however, has the burden of persuasion only to an equipoise standard or an “equality of the evidence” standard with the help of VA in developing the claim. See Skoczen v. Shinseki, 564 F.3d 1319, 1324 (Fed. Cir. 2009) (citing 38 U.S.C. § 5107(b)). However, the Veteran has not submitted persuasive evidence, not even to the equipoise standard, that he has right foot compartment syndrome that is related to service or otherwise. In sum, the Board finds the medical evidence, discussed above, showing that the Veteran does not have right foot compartment syndrome to be persuasive. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Therefore, service connection for right foot compartment syndrome is not warranted. 2. Entitlement to an initial disability rating in excess of 10 percent for right wrist tendonitis is denied. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. See 38 C.F.R. §§ 4.1, 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, “staged” ratings may be assigned for such different periods of time. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. In order for an examination of the musculoskeletal system to be adequate under 38 C.F.R. § 4.40, the medical examiner “must be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time.” DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Where feasible, the examiner should describe any limitations “in terms of the additional range-of-motion loss due to pain on use or during flare-ups.” Id.; see Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (explaining that, to comply with DeLuca, the examiner must state at what point in the range of motion the claimant experienced limited motion specifically attributable to pain). Before an examiner can conclude that an opinion on functional loss cannot be provided without resorting to speculation, the examiner must elicit and consider information from the veteran or other sources about any additional functional loss experienced during a period of flare-ups and provide either an estimate of additional range-of-motion loss in degrees or an explanation for why such an estimate cannot be given. Sharp v. Shulkin, 29 Vet. App. 26, 33-36 (2017). The Veteran’s right wrist disability is currently rated as 10 percent disabling under DC 5215 for limitation of wrist motion. Under DC 5215, a maximum 10 percent rating is warranted for limitation of wrist motion with either dorsiflexion less than 15 degrees or palmar flexion limited in line with forearm; the assigned rating based on these criteria is the same for the major and minor joints. The Board notes that the VA examinations discussed below all indicate that the Veteran is left-hand dominant, and thus, the Veteran’s right wrist is rated as a minor joint. The Veteran seeks a higher right wrist disability rating, currently evaluated as 10 percent disabling effective May 1, 2013, which includes the entire appeal period here. VA afforded the Veteran examinations in July 2013, August 2017, and December 2019. All the examination reports show that the Veteran does not have right wrist ankylosis. Additionally, the July 2013 examiner noted that the Veteran reported flare-ups of his right wrist disability. The examiner reported right wrist palmar flexion of 80 degrees or greater with no objective evidence of painful motion, and dorsiflexion of 70 degrees or greater with no objective evidence of painful motion. These results were the same after repetitive use testing. At the August 2017 examination, the Veteran reported right wrist pain and flare-ups. The August 2017 examiner reported normal range of motion testing with palmar flexion from zero to 80 degrees and dorsiflexion from zero to 70 degrees, with no change after four repetitions. VA afforded the Veteran the December 2019 examination, and while the Board’s October 2019 remand instructions requested an examination for compliance with Sharp v. Shulkin regarding an opinion on flare-ups, the examiner only noted that the Veteran denied flare-ups in December 2019. However, as further discussed below, the Board finds that substantial compliance with the October 2019 remand is not necessary for the right wrist issue because the Veteran is currently rated at the maximum rating under DC 5215; therefore, any potential limitations caused by past reported flare-ups would make no difference to the outcome of the instant decision. At the December 2019 examination, the Veteran complained of worsening of right wrist soreness, weakness, weak grip, and limited range of motion. The examiner reported abnormal right wrist range of motion with a palmar flexion from zero to 45 degrees and dorsiflexion from zero to 20 degrees. The examiner reported that pain was present on range of motion examination and that it causes functional loss. The examiner estimated functional loss due to pain with repeated use over time as the following limitations in range of motion: palmar flexion from zero to 35 degrees and dorsiflexion from zero to 10 degrees. The Veteran denied flare-ups at this examination. The Board reviewed the evidence of record, to include the VA examinations described above. Only the December 2019 examiner described limitation of right wrist motion as meeting DC 5215’s criterion for a 10 percent rating, i.e., dorsiflexion less than 15 degrees. The VA examinations and other evidence revealed no evidence of ankylosis of the right wrist, and the Veteran has not contended otherwise. Unfortunately, the only other DC that would afford the Veteran a rating higher than 10 percent for his right wrist disability is DC 5214 that requires ankylosis, which has not been shown in the Veteran’s case. Accordingly, there is no basis for a higher evaluation. In so finding, the Board considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. The Board also considered Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), which supplied the basis for the Board’s previous remand. However, given the November 2017 rating decision, the Veteran is already assigned the maximum schedular evaluation available for his right wrist disability, and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The provisions of 38 U.S.C. §§ 4.40, 4.45, and DeLuca, are therefore not applicable here. As a result, the holdings in Correia and Sharp no longer apply to the appeal concerning the Veteran’s right wrist tendonitis. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application as to a rating higher than 10 percent for the Veteran’s right wrist disability, and the appeal for a higher rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 20 percent for left shoulder tendonitis is remanded. In October 2019, the Board remanded the left shoulder issue for a VA examination that complied with Sharp v. Shulkin, 29 Vet. App. 26, 33-36 (2017). VA afforded the Veteran an examination in December 2019, and the examiner noted that the Veteran did not report flare-ups. However, the evidence of record, to include a July 2013 examination, shows that the Veteran reported flare-ups, and because the December 2019 examiner did not opine on the reported left shoulder flare-ups or explain why such an opinion was not possible, remand is warranted for substantial compliance with the Board’s previous remand. See Stegall v. West, 11 Vet. App. 268 (1998). The matter is REMANDED for the following action: 1. Forward the Veteran’s claims file to an appropriate clinician to opine on the severity of the Veteran’s left shoulder tendonitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The necessity of an in-person examination is left to the discretion of the examiner. The examiner must opine regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, to consider the reported flare-ups at the July 2013 examination. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If possible, the examiner should opine on whether the Veteran’s left shoulder symptoms, with consideration of the lay statements regarding flare-ups, may be estimated as limitation of arm motion midway between side and shoulder level, or limitation of arm motion to 25 degrees from side, during the relevant period. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resorting to mere speculation, the examiner should fully discuss why. 2. After the above development and any other development deemed necessary is completed, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Santiago, 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.