Citation Nr: 21062633 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 18-39 493 DATE: October 8, 2021 ORDER Entitlement to service connection for radiculopathy of the left lower extremity is granted. REMANDED Entitlement to a rating in excess of 20 percent prior to August 16, 2018, and in excess of 40 percent from August 16, 2018, for degenerative arthritis with intervertebral disc syndrome (IVDS) and lumbosacral strain is remanded. Entitlement to a rating in excess of 10 percent for hallux valgus with hammer toes, left, is remanded. Entitlement to a rating in excess of 10 percent for hallux valgus with hammer toes, right, is remanded. Entitlement to service connection for a dental condition is remanded. FINDING OF FACT The Veteran's service-connected degenerative arthritis with IVDS and lumbosacral strain is productive of radiculopathy of the left lower extremity. CONCLUSION OF LAW The criteria for service connection for radiculopathy of the left lower extremity are met. 38 U.S.C. §§ 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1979 to October 1982. The case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of February 2016. In April 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The February 2016 rating decision, in part, denied service connection for sinusitis. The Veteran filed a notice of disagreement (NOD) in May 2016, a statement of the case (SOC) was issued in July 2018, and the Veteran perfected an appeal to the Board as to the sinusitis issue by filing of VA Form 9 in July 2018. A May 2020 rating decision granted service for sinusitis, effective December 11, 2015, and assigned a noncompensable rating. Having been granted, entitlement to service connection for sinusitis is not an issue on appeal before the Board. Service Connection In general, service connection will be granted for a current disability that resulted from an injury or disease incurred in, or aggravated by, active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires a current disability, an in-service incurrence or aggravation of a disease or injury, and a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. Any increase in severity of a non-service-connected disease or injury that is proximately due to, or the result of, a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. 38 C.F.R. § 3.310; see also Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to a service connection for radiculopathy of the left lower extremity. The Veteran is currently service-connected for degenerative arthritis with IVDS and lumbosacral strain. His pending appeal for an increased rating with respect to the back disability is addressed in the Remand section below. It may be presumed that, in appealing as to the rating assigned for the back disability, the Veteran seeks the maximum available benefit allowed by law. See AB v. Brown, 6 Vet. App. 35, 38 (1993). A February 2016 VA examination report for the back noted radiculopathy of the left lower extremity. In August 2018, the Veteran again underwent a VA back examination, and left lower extremity radiculopathy was noted. The examiner specifically remarked that the left lower extremity radiculopathy is a progression of the Veteran's back condition. Based on the VA examination reports finding neurological impairment associated with the Veteran's service-connected back disability, the Board determines that the Veteran is entitled to a separate disability rating for radiculopathy of the left lower extremity. REASONS FOR REMAND 2. Entitlement to a rating in excess of 20 percent prior to August 16, 2018, and in excess of 40 percent from August 16, 2018, for degenerative arthritis with IVDS and lumbosacral strain. A rating decision of February 2016 granted service connection for lumbosacral strain (claimed as lower back condition). A 20-percent rating, effective December 11, 2015, was assigned. The Veteran appealed as to the assigned rating by filing a notice of disagreement (NOD) in May 2016 and VA Form 9 in July 2018. A rating decision of May 2020 increased the rating to 40 percent, effective August 16, 2018. Because less than the maximum evaluation was awarded, the appeal remained in active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In February 2016, the Veteran underwent a VA examination for his back. He reported, in part, experiencing flare-ups in which his back "locks up" and he must wait a bit before he can move. He stated that he cannot do anything until his back adjusts. Upon testing, the initial range of motion (ROM) was limited to 40 degrees for flexion and 10 degrees for extension. The examiner did not estimate the range of motion during a flare-up or with repeated use over time on the grounds that such estimates would be speculative. There was no muscle atrophy and no ankylosis of the spine. In August 2018, the Veteran again underwent a VA examination for his back. He reported, in part, daily flare-ups lasting from minutes to hours and reaching 8/10 on the pain scale. Initial ROM was limited to 30 degrees for flexion and 10 degrees for extension. The examiner did not estimate the range of motion during a flare-up or with repeated use over time, stating that there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. There was no muscle atrophy. The examiner made a finding of favorable ankylosis of the entire thoracolumbar spine. In the evaluation of a disability under VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, which is functional loss consistent with that contemplated by ankylosis. See Chavis v. McDonough, __ Vet. App. __, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). Pursuant to Chavis, the Veteran may be entitled to a rating higher than 20 percent prior to August 16, 2018, and higher than 40 percent from August 16, 2018, if weakened movement, excess fatigability, incoordination, and pain on movement during flare-ups cause him to experience the functional equivalent of favorable or unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Under Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), a VA examiner should attempt to estimate any additional functional loss, including loss of range of motion, with flare-ups and with repeated use over time, based on all medically relevant information, included that elicited from a veteran as to experienced symptoms. The Veteran reported in February 2016 that his back "locks up" during a flare-up. The Board cannot find that the failure of the VA examiners to estimate the range of motion during flare-ups and with repeated use over time was harmless error. An adequate VA examination report that complies with Sharp is required to determine whether the Veteran at least as likely as not experiences the functional equivalent of favorable or unfavorable ankylosis. 3. Entitlement to a rating in excess of 10 percent for hallux valgus with hammer toes, left. 4. Entitlement to a rating in excess of 10 percent hallux valgus with hammer toes, right. A rating decision of February 2016 granted service connection for hallux valgus with hammer toes of the left foot and for hallux valgus with hammer toes of the right foot. As to each disability, a noncompensable (0 percent) rating was assigned with an effective date of December 11, 2015. The Veteran appealed as to the assigned ratings by filing a NOD in May 2016 and VA Form 9 in July 2018. The Veteran underwent VA examinations for the feet in February 2016 and August 2018. In April 2021, the Veteran testified that his hallux valgus and hammer toes are not properly rated and that the symptoms have worsened since the last VA examination. The Board will remand for a VA examination as to the current severity of the Veteran's service-connected bilateral disability. See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990). 5. Entitlement to service connection for a dental condition, to include as caused or aggravated by service-connected sinusitis. In December 2015, the Veteran filed a service-connection claim for "dental conditions secondary to treatment for sinusitis." A rating decision of February 2016 denied service connection for a dental condition. The Veteran appealed by filing a NOD in May 2016 and VA Form 9 in July 2018. A rating decision of May 2020 granted service connection for sinusitis with an evaluation of 0 percent, effective December 11, 2015. An August 2001 VA examination report for the nose and sinus noted the recent loss of a right upper tooth associated with "some recurrent gum trouble." The examiner indicated that he was unable to associate the gum trouble with the Veteran's history of sinusitis, although the Veteran thought that they were related. Treatment records document surgery in December 2005 to remove a cyst from the upper right jaw. The operative finding was a cystic lesion with serous fluid intimately associated with root #6 smooth boney crypt. There was "no communication with maxillary sinus or nasal cavity." The clinical history was that the Veteran complained of periodic right maxillary swelling with spontaneous drainage of foul-smelling liquid. In April 2021, the Veteran testified that, as a result of surgery performed in 2005 for sinusitis, he developed an additional disorder involving his jaw and chronic infections. He stated that a healthcare professional has told him he has a current dental condition that is linked to his sinusitis. As a layperson, the Veteran is competent to report a contemporaneous medical diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He is also competent to report symptoms of injury or illness that are perceived through use of the senses. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Board notes that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, although not compensable disabilities, may be service-connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided for by 38 C.F.R. § 17.161. Under 38 C.F.R. § 17.161, outpatient dental treatment may be authorized by the Chief, Dental Service, in accordance with the applicable provisions. A claimant must fit into a "class" as defined in 38 C.F.R. § 17.161 in order to be eligible for outpatient dental treatment. There is no class listed for outpatient treatment for a veteran who has developed a dental condition as secondary to a service-connected disability. The Board is not able to make a fully informed decision upon the current record, because no VA examiner has opined as to the likelihood that the Veteran's recurrent symptoms of dental/jaw disorder are caused or aggravated by a disease, injury, or event of service or are caused or aggravated by a service-connected disability, to include sinusitis. 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Undertake appropriate development to associate with the record any outstanding VA treatment records and any outstanding and identified private medical records that are pertinent to the remanded issues. All efforts to obtain such records should be documented in the record. 2. Schedule the Veteran for an examination as to the severity of his service-connected back disability and any associated neuropathy. The examiner must fully describe the disabilities and report all signs and symptoms necessary for evaluating them under the rating criteria. The examiner must test, if possible, the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. Any additional functional impairment must be expressed in terms of the degree of additional loss of range of motion. Regardless of whether ankylosis is found, the examiner must opine as to whether the Veteran's range of motion during a flare-up or with repeated use over time is so diminished as to, at least as likely as not, result in the functional equivalent of favorable or unfavorable ankylosis. If it is not possible to provide a measurement or estimate without speculation, to include with respect to use during flare-ups or with repeated use over time, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge or a deficiency in the record (additional facts are required). Notify the examiner that VA regulations, namely 38 C.F.R. §§ 4.40 and 4.45, and case law, namely DeLuca v. Brown, 8 Vet. App. 202 (1995) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), anticipate that VA examiners will use information procured from relevant sources, including lay statements of the Veteran, to estimate additional functional loss due to musculoskeletal disability during a flare-up and with repeated use over time. Notify the examiner that the mere fact that an examination is not occurring during a flare-up or after repeated use over time is an insufficient reason for not providing an estimate. It is also not sufficient to state merely that any information provided by the Veteran would be subjective and therefore of no value. 3. Schedule the Veteran for an examination as to the severity of his service-connected hallux valgus with hammer toes of the left foot and hallux valgus with hammer toes of the right foot. The examiner must fully describe the disabilities and report all signs and symptoms necessary for evaluating the Veteran's bilateral disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and to estimate the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a measurement or estimate without speculation, to include with respect to use during flare-ups or with repeated use over time, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge or a deficiency in the record (additional facts are required). 4. Schedule the Veteran for an examination to determine the nature and etiology of any dental or jaw disorder. Separate examinations may be scheduled as deemed appropriate in order to secure a qualified examiner(s) or as otherwise warranted. The examiner must opine as to whether any dental or jaw disorder at least as likely as not: a. Is related to an in-service injury, disease, event; or b. Had its inception during active duty service; or c. Is caused or aggravated beyond its natural progression by a service-connected disability, to include sinusitis. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the examiner that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. (Continued on the next page) If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven D. Najarian, 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.