Citation Nr: 21062062 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 20-21 396 DATE: October 6, 2021 ORDER Entitlement to service connection for a liver condition (and residuals of liver transplant), to include as secondary to service-connected diabetes mellitus, type II (DM II) is granted. Entitlement to an initial rating of 20 percent, but no higher, from August 10, 2017 forward, for a service-connected left ankle condition is granted. Entitlement to a rating in excess of 20 percent for the entire appeal period for service-connected left ankle is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The evidence of record demonstrates that the Veteran's currently diagnosed liver condition and residuals from the 2002 liver transplant surgery are proximately due to or aggravated (worsened) by his service-connected DM II. 2. Affording the Veteran the benefit of doubt, the evidence of record is evenly balanced for and against (in "relative equipoise") finding that since August 10, 2017, the Veteran's left ankle symptoms (including pain, stiffness, and limited range of motion) more closely approximate marked limitation of motion, which corresponds to a 20 percent rating under the Diagnostic Code (DC). 3. Under the applicable DC, 20 percent is the maximum rating allowed by law for the Veteran's service-connected left ankle condition; no other DC would provide for a higher rating. CONCLUSIONS OF LAW 1. The criteria have been met for service connection for a liver condition, to include as secondary to service-connected DM II. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2021). 2. The criteria for an initial 20 percent rating, but no higher, for service-connected left ankle were met August 10, 2017. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5271 (2021). 3. The criteria for a disability rating in excess of 20 percent, for a service-connected left ankle disability, have not been met at any time. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5271 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from September 1965 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2017 and November 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). A November 2020 Board decision granted reopening the Veteran's appeal for service connection for a liver condition and entitlement to a total disability based upon individual unemployability (TDIU). Thus, those issues are no longer on appeal. The Board remanded the issues of service connection for the liver and bilateral hearing loss, increased rating for left ankle, and a separate rating for bilateral upper extremity neuropathy. Following that remand, but prior to the issue being returned to the Board, the RO issued a June 2021 rating decision, in which the Veteran's rating for his left ankle was increased from 10 percent to 20 percent, effective March 4, 2021. Because this does not represent a full grant of the benefits sought for the entire appeal period, the issue remains on appeal. Additionally, the RO in a June 2021 rating decision granted the requested separate rating for the Veteran's bilateral upper extremity neuropathy; therefore, that issue is no longer on appeal. 1. Entitlement to service connection for a liver condition and any residuals, to include as secondary to service-connected DM II is granted. The Veteran asserts he is entitled to service connection for a liver condition. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. The Veteran attended an August 2017 VA examination for his liver condition. The examiner diagnosed post-liver transplant status but stated the Veteran's current liver function was normal and was not fatty. The medical examination report did not include a nexus opinion. The Veteran attended a March 2021 VA examination for his liver condition. The examiner diagnosed cirrhosis of the liver and a liver transplant, onset 2002. The March 2021 VA examiner opined that it is less likely than not that the Veteran's liver condition was caused by or incurred in service. The examiner reasoned that the Veteran's cirrhosis is not on the listed conditions presumptively linked to Agent Orange, and it would be mere speculation to conclude it was developed in service. However, the examiner did opine that the Veteran's liver condition is at least as likely as not proximately due to or result of the Veteran's service-connected diabetes mellitus (DM). The examiner reasoned that the Veteran's DM led to obesity and fatty liver disease which in turn led to scarring of the liver and the eventual need for a transplant. In a June 2021 VA addendum medical opinion, the March 2021 VA examiner reiterated that the Veteran's liver disease is at least as likely as not, worsened (aggravated) by the Veteran's service-connected DM II because DM II leads to fatty infiltration of the liver. The Veteran satisfies the first element for service connection under direct or secondary entitlement because he is currently diagnosed with either cirrhosis of the liver, fatty liver, or other residuals from the liver transplant surgery. Here, the evidence of record is clear that the Veteran does not satisfy all of the elements for service connection on a direct basis because there is no alleged in-service injury or disease. However, the Veteran may still prevail under secondary service connection. The Veteran is service connected for diabetes mellitus type II and therefore satisfies the second element of secondary service connection. Finally, the Veteran satisfies the third element for secondary service connection based on the April 2021 VA examiner's opinion that the Veteran's liver condition is at least as likely as not caused or aggravated by his service-connected DM II. The Board affords this opinion significant probative weight. Even though some elements of the opinion are inadequate (the reliance on lack of a presumption linked to Agent Orange exposure), the examination and opinion, when read as a whole, are adequate for the purposes of adjudicating the Veteran's claim. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (explaining that VA must read an examination report or opinion as a whole). The Board cannot afford the August 2017 VA examination any probative weight because it provides no nexus opinion or rationale for its conclusions. Accordingly, service connection for a liver condition, to include as secondary to DM II, is warranted. 2. Entitlement to an initial rating of 20 percent, but no higher, from August 10, 2017 forward, for a service-connected left ankle condition is granted. 3. Entitlement to a rating in excess of 20 percent for the entire appeal period for service-connected left ankle is denied. The Veteran asserts he is entitled to an increased initial rating for his left ankle condition. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects ability to function under the ordinary conditions of daily life, including employment, by comparing the symptoms that the Veteran experiences with the criteria in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2018). 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. Standard motion of an ankle joint is from zero degrees to 20 degrees for dorsiflexion and zero degrees to 45 degrees for plantar flexion. 38 C.F.R. § 4.71, Plate II. The Veteran's left ankle strain is currently rated pursuant to Code 5271, for limited motion of the ankle. Pursuant to that Code, moderate limitation of motion is assigned a 10 percent evaluation, and a maximum 20 percent evaluation is assigned for marked limitation of motion. 38 C.F.R. § 4.71a, Code 5271. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2019). An initial claim includes a new claim requesting service connection and a claim for increase in a disability evaluation rating. 38 C.F.R. § 3.1(p) (2019). The effective date for the assignment of an increased rating may be up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred based on all evidence of record. 38 C.F.R. § 3.400(o)(2). In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In the November 2020 Board decision, the Board found the May 2017 VA examination inadequate for rating purposes, so the Board will not address that VA examination again in this decision. A June 2017 rating decision granted service connection for the Veteran's left ankle condition and assigned a 10 percent rating. In January 2018, the Veteran timely filed a notice of disagreement (NOD), taking issue with the assigned rating. The Veteran attended a March 2021 VA examination for his left ankle condition. The examiner confirmed a left ankle lateral collateral ligament sprain with degenerative arthritis. The Veteran reported he cannot walk a lot or run, and he reported no flare-ups. The examiner noted left ankle range of motion as follows: active range of motion (ROM) plantar flexion endpoint 10 degrees (normal 45 degrees) and dorsiflexion endpoint 5 degrees (normal 20 degrees) with both exhibiting pain; passive ROM was reported as the same as active; pain was also noted in weight bearing; no functional loss was noted by the examiner due to the Veteran's ROM or pain. The examiner also noted crepitus and objective evidence of localized moderate tenderness and pain to the lateral and anterior left ankle and estimated that repeated use over time would result in additional functional limits with fatigability, weakness, and lack of endurance, ROM was estimated as zero degrees for plantar flexion and dorsiflexion endpoints. The examiner further noted the Veteran did not have any ankylosis. The March 2021 examiner opined that there is a worsening of the Veteran's symptoms, no change in the Veteran's diagnosis, and no additional diagnoses. Further, the examiner opined that the Veteran's left ankle manifests moderate impairment because the Veteran can walk and stand, just not for more than 10-15 minutes. The examiner also opined that the Veteran's disability does not cause any functional impairment because the condition is sensory only. Because the May 2017 VA examination was deemed inadequate for rating purposes, the objective evidence of record indicates a 20 percent rating for the Veteran's left ankle more closely approximates the severity of his disability picture. A higher rating under DC 5270 is not warranted because the Veteran does not have any ankylosis. The Veteran's 20 percent rating is effective August 10, 2017 because that is the date at which entitlement arose for his initial service connection claim. It is not appropriate to look to other potentially applicable DCs to assign a higher rating because the Veteran's assigned DC is not by analogy. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). Accordingly, effective August 10, 2017, an initial rating of 20 percent, but no higher, is assigned to the Veteran's service-connected left ankle. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. Despite the additional and regrettable delay, a remand is required because there was not substantial compliance with the Board's November 2020 remand directive to provide the Veteran with an adequate VA examination. See Stegall v. West, 11 Vet. App. 268 (1998). The March 2021 VA examiner opined that the Veteran's currently diagnosed hearing loss is less likely than not caused by or the result of an event during military service. While the examiner concluded the Veteran was exposed to hazardous noise levels in service, the examiner reasoned that the Veteran did not experience significant threshold shifts in hearing between enlistment and separation examinations. The examiner concluded based on the lack of threshold shifts that no hearing injury occurred during service. While the examiner concedes hazardous noise exposure, the examiner also states there was no noise injury based on the lack of threshold shifts. The examiner further reasoned that studies have shown that there is "not sufficient evidence from longitudinal studies" to determine if delayed onset hearing loss occurs. It does not logically follow that the conclusion one should reach is that delayed-onset hearing loss does NOT occur, but rather, there is not enough data to draw a conclusion either way. The examiner does not address the fact that the Veteran was service connected for tinnitus previously based on his in-service hazardous noise exposure. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (accepting acoustic trauma due to loud noise as satisfying the in-service injury element of a service connection claim); see also Sellers v. Shinseki, 25 Vet. App. 265, 285 (2012) ("there is no requirement that a veteran be diagnosed in service for a disease to be service connected.") (emphasis added). The Board finds the March 2021 VA examiner's rationale does not adequately address the Veterans contention that his hearing loss is due to hazardous noise exposure in service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning). The matters are REMANDED for the following action: 1. Please note that this Veteran's case has been advanced on the docket and, by law, ALL remanded claims must be processed expeditiously. 2. The RO should arrange for a VA medical opinion (to EXCLUDE the May 2017 and March 2021 examiners), with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of his diagnosed bilateral hearing loss disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) For the purposes of this opinion, the clinician should assume that the Veteran has 1) a current hearing loss disability and 2) acoustic trauma due to loud noise exposure satisfying the in-service injury. (b.) For the Veteran's diagnosed hearing loss, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran's service-connected tinnitus? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. (c.) For the Veteran's diagnosed hearing loss, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service, including the demonstrated hazardous noise exposure? Please explain why. The Board notes that, by law, there is no requirement that a veteran be diagnosed in service (or within one year following service) for a disease to be service connected. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. A detailed explanation (rationale) is required for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, Associate 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.