Citation Nr: 21064865
Decision Date: 10/21/21	Archive Date: 10/21/21

DOCKET NO. 15-30 297
DATE: October 21, 2021

ORDER

A compensable rating prior to December 2, 2016, for a low back disability, 

is denied.

A rating of 20 percent, but no higher, from December 2, 2016, onward, for a low back disability, is granted.

A rating in excess of 20 percent for a low back disability is denied.

A rating in excess of 30 percent for partial paralysis of the right serratus anterior muscle is denied.

Service connection for hyperreflexia of the bilateral lower extremities is granted.

REMANDED

Entitlement to service connection for a hip disability, to include as due to post-polio syndrome, is remanded.

Entitlement to service connection for a right ankle disability, to include as due to post-polio syndrome, is remanded.

Entitlement to service connection for muscle weakness, to include as due to post-polio syndrome, is remanded.

FINDINGS OF FACT

1. Prior to December 2, 2016, the weight of the competent and probative evidence shows that the low back disability is manifested by normal range of motion without painful motion, spasms, weakness, tenderness, atrophy, or guarding.

2. From December 2, 2016, the weight of the competent and probative evidence shows that the low back disability is manifested by forward flexion of 35 degrees without favorable ankylosis or intervertebral disc syndrome (IVDS).

3. The weight of the weight of the competent and probative evidence is against finding that the low back disability resulted in forward flexion to 30 degrees or less, ankylosis, or IVDS.

4. The Veteran is in receipt of the maximum schedular rating for his partial paralysis of the right serratus anterior muscle.

5. The Veteran's hyperreflexia of the lower extremities is secondary to his service-connected low back disability.

CONCLUSIONS OF LAW

1. The criteria for a compensable rating prior to December 2, 2016, for a low back disability are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237.

2. The criteria for a rating of 20 percent, but no higher, from December 2, 2016, onward, for a low back disability are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5237.

3. The criteria for a rating in excess of 20 percent for a low back disability are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5237.

4. The criteria for a rating in excess of 30 percent for partial paralysis of the right serratus anterior muscle are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.10, 4.40, 4.45, 4.56, DC 5301.

5. The criteria for service connection for hyperreflexia of the lower extremities, 

to include as secondary to the service-connected low back disability, are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1954 to November 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In February 2018, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of that hearing is of record. This hearing was before a now-retired judge. In a September 2021 correspondence, the Veteran was given the opportunity to request another hearing within 30 days. See 9/1/2021 BVA Letter (stating that if the Veteran did not respond within 30 days from the date of this letter, the Board will assume that you do not want another hearing and proceed accordingly). However, the Veteran did not respond within the 30 days. As such, the Board will proceed accordingly without a hearing.

This appeal has been before the Board previously. In August 2018 the Board remanded the issues on appeal for the Agency of Original Jurisdiction (AOJ) to provide the Veteran with new VA examinations to determine the nature and etiology of his claimed residuals of polio, to include right ankle clonus, bilateral hyperreflexia of the legs, a right foot drop, a hip disorder, and muscle weakness of the entire body with aches and spasms. Additionally, the AOJ must provide the Veteran with contemporaneous VA examinations to determine the current severity of his right serratus anterior muscle disability and lumbar disability. After a July 2021 supplemental statement of the case considered the record, this matter was returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives as the AOJ afforded the Veteran with VA examinations for his disabilities as directed by the August 2018 Board remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

While the appeal for an increased rating for the low back disability was pending, a March 2017 rating decision granted an increased rating of 10 percent for the low back disability, effective December 2, 2016. Additionally, a July 2021 rating decision granted an increased rating of 20 percent for the low back disability, effective June 28, 2021. Although increased ratings were granted, the issue remains in appellate status as the maximum schedular rating had not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993).

Finally, the July 2021 rating decision granted service connection for right foot drop. As such, this matter is no longer on appeal due to the full grant of the service connection benefit sought and it will not be discussed. See Grantham v. Brown, 

114 F.3d 1156, 1158 (Fed. Cir. 1997).

Increased rating

Disability ratings are determined by applying the criteria set forth in the 

VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). 

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71(a) (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. 

See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71(a) 

[or 4.73] criteria.").

However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes "additional functional loss i.e., 'the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance including as due to pain and/or other factors" or "reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination." Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995).

The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

1. A rating in excess of 20 percent for a low back disability.

The Veteran asserts that he is entitled to a higher rating for his low back disability.

Under the General Rating Formula for the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 

30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

A 20 percent evaluation is warranted where the evidence shows forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 

120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 30 percent rating is warranted for forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine.

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The criteria for a 50 percent rating are unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Associated objective neurological abnormalities are rated separately under the appropriate diagnostic code. Id., Note (1).

Alternatively, a back disorder can be rated as Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes. Under those criteria, found at Diagnostic Code 5243, a ten percent evaluation requires incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months, and 20 percent evaluating requires incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months. Id. DC 5243.

A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks, but more than four weeks and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. There is no corresponding note allowing for the separate evaluation of any associated neurologic abnormalities. 38 C.F.R. § 4.71a.

Note (1) to the General Rating Formula for Diseases and Injuries of the Spine directs that rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a.

"The question of whether a particular medical issue is beyond the competence of a laypersonincluding both claimants and Board membersmust be determined on a case-by-case basis." Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). In this case, the Board is competent to observe that voluntary range of motion testing is going to be more favorable to the Veteran than involuntary range of motion testing.  In DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1592 (32nd ed. 2012), range of motion redirects the reader to "exercise." Passive exercise "is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient's own body." Id. at 658. Active exercise is "motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part." It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran's joint farther than he would be able to move it on his own. Therefore, active motion is more favorable to the Veteran, and the results of active motion testing were provided.  Similarly, it is reasonable to conclude that non-weightbearing motion is less difficult than weightbearing motion. Therefore, the Board will evaluate the Veteran's range of motion using the available findings of active range of motion and looking at all the relevant medical and lay evidence.

The record shows that the Veteran currently has a non-compensable rating from November 2, 1957, at 10 percent from December 2, 2016, and at 20 percent from June 28, 2021, under DC 5237 under the General Rating Formula for Diseases and Injuries of the Spine. The question for the Board is whether higher or separate ratings are warranted.

The Board finds that a compensable rating prior to December 2, 2016, is not warranted. Additionally, resolving reasonable doubt in favor of the Veteran, the Board finds that a rating of 20 percent, but no higher, for a low back disability is warranted from December 2, 2016, thereafter. Finally, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's service-connected low back disability.

Prior to December 2, 2016

VA received the Veteran's claim that began this appeal in April 2009.  The Veteran underwent a VA examination in March 2010. The objective examination showed that the Veteran had normal lumbar spine range of motion, to include forward flexion to 90 degree, without pain. Additionally, following repeated movement against a resistance and 30 minutes later, his range of motion remained unchanged. Further, he had no spasms, weakness, tenderness, atrophy, or guarding. See 2/26/2010 VA Examination.

The Board finds that the above competent and probative evidence tends to weigh against a compensable rating prior to December 2, 2016.

From December 2, 2016

Another VA examination was conducted in December 2016. Regarding flare-ups, the Veteran reported that he experienced intermittent flare-ups of lower back pain. The objective examination showed that the Veteran had forward flexion of 

80 degrees, extension of 20 degrees, left lateral flexion of 30 degrees, right lateral flexion of 30 degrees, right lateral rotation of 30 degrees, and left lateral rotation of 30 degrees. Additionally, the examiner noted that the Veteran's range of motion itself did not contribute to functional loss. Further, the examiner reported that the Veteran had pain with forward flexion, extension, and right and left lateral flexion, but it did not cause functional loss. In addition, there was no evidence of pain with weight bearing and the examiner noted no additional loss of function or range of motion after three repetitions. Furthermore, the examiner reported that he was unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limit the Veteran's functional ability with repeated use or during flare-ups. Moreover, the Veteran had normal strength, sensation, straight leg raising test result, and reflexes, except for the right knee (3+). Also, he had no tenderness, muscle atrophy, radiculopathy, muscle spasms, guarding, ankylosis, neurologic abnormalities, or IVDS. The Veteran used a cane regularly. Finally, 

the examiner reported that the Veteran had no functional impact. See 12/2/2016 C&P Examination. However, the Board finds this examination inadequate. Regarding the Veteran's contentions of experiencing flare-ups, it does not seem like the examiner made any attempts to elicit information from the Veteran to determine his range of motion during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; Sharp, 29 Vet. App. 26 (holding that when conducting evaluations for musculoskeletal disabilities, VA examiners must inquire whether there are periods of flare-ups and, if the answer is yes, state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, they affect functional impairment). As such, the Board affords this opinion little weight, but notes that some parts of it are useful in forming a clearer picture of the Veteran's service-connected lumbar spine disability.

The most recent VA examination was conducted in June 2021. Regarding flare-ups, the Veteran reported that he experiences a daily dull pain (7/10) in his lower back, that last for 7 hours. Regarding functional loss, the Veteran reported that he experiences difficulty with all activities of daily living. The objective examination showed that the Veteran had forward flexion of 50 degrees, extension of 

10 degrees, left lateral flexion of 15 degrees, right lateral flexion of 15 degrees, right lateral rotation of 15 degrees, and left lateral rotation of 15 degrees. Additionally, the examiner reported that the Veteran had pain with all active range of motion, which caused stiffness with movement. Further, passive range of motion was not performed since it was medically contraindicated. In addition, 

the examiner noted no additional loss of function or range of motion after three repetitions. Moreover, the examiner reported that pain, fatigability, weakness, 

lack of endurance, or incoordination did not significantly limit the Veteran's functional ability with repeated use. The examiner reported that pain and fatigability would significantly limit the Veteran's functional ability with flare-ups; the Veteran would have forward flexion of 35 degrees, extension of 10 degrees, right lateral flexion of 10 degrees, left lateral flexion of 10 degrees, right lateral rotation of 10 degrees, and left lateral rotation of 10 degrees. Also, he had normal strength, reflexes, sensation, and straight leg raising test result, and no crepitus, tenderness, guarding, spasms, radiculopathy, ankylosis, neurologic abnormalities, or IVDS. The Veteran used a cane regularly. Finally, regarding functional impact, the examiner reported that the Veteran has difficulty with prolonged sitting, standing, and walking, and with bending, twisting, and lifting. See 6/28/2021 C&P Examination. The Board finds the June 2021 VA examination to be adequate for rating purposes, as it is based on in-person examination of the Veteran, objective testing, and medical expertise. The Board finds that the medical and lay evidence is sufficient to allow it to render a decision that addresses the Mitchell and DeLuca criteria.

 

Resolving reasonable doubt in favor of the Veteran, the Board finds that the weight of the evidence supports a finding that the Veteran's disability picture is more nearly approximated by a 20 percent disability rating from December 2, 2016, onward. 38 C.F.R. § 4.3.  In doing so, the Board notes some similarities between the 2016 and 2021 examinations and with resolution of doubt on this material issue applies the findings of the 2021 retroactively.  38 U.S.C. § 5107(b). 

The Board also finds that the weight of the evidence does not support a finding that the Veteran's disability picture is more nearly approximated by a higher rating than a 20 percent disability rating. The Veteran did not have forward flexion of 

30 degrees or less or favorable ankylosis. The Board observes that the June 2021 VA examination revealed that the Veteran had normal muscle strength, reflexes, sensation, and straight leg raising test results, and no crepitus, tenderness, guarding, spasms, radiculopathy, ankylosis, neurologic abnormalities, or IVDS. The Veteran had limited motion in his back, but he did have some motion. 

This would tend to weigh against a finding of functional ankylosis. In considering the overall evidence, to include what was just discussed, the Board finds that the preponderance of it tends to weigh against a higher rating.

The Board has also considered the Deluca and Mitchell factors, and the evidence of record, the Board finds that the current rating already compensates the Veteran for any functional loss due to pain affecting the lumbar spine, to include a daily dull pain in his lower back. Deluca, 8 Vet. App. at 204-07. In light of the foregoing, the Board finds that an increased rating, higher than 20 percent, due to functional impairment would not be appropriate under the criteria for 38 C.F.R. §§ 4.40 and 4.45.

2. A rating in excess of 30 percent for partial paralysis of the right serratus anterior muscle.

The Veteran contends entitlement to an increased disability rating for partial paralysis of the right serratus anterior muscle disability. Specifically, at the Board hearing, the Veteran testified that his disability caused functional loss, such as weakness and lack of coordination; he cannot pick up a gallon of milk, turn a screwdriver, or swim. Additionally, he testified that his right shoulder gets weaker with repetitive movement. See 2/23/2018 Hearing Transcript, at pages 12 and 14. Further, the Veteran reported his shoulder muscles wake him up during the night after sleeping on them and he cannot just straighten his arm out, instead he has to move his arm slowly. See 3/10/2010 Medical Treatment Record  Non-Government Facility, at page 59. Moreover, the Veteran reported that "[a]fter 

7 months of rehab, I have very little forward and no upward movement." See 5/9/2018 Medical Treatment Record  Non-Government Facility, at page 14.

The record showed that the Veteran's partial paralysis of the right serratus anterior muscle is currently rated at 30 percent disabling under DC 5301.

As DC 5301 is a diagnostic code assigned for injuries to Muscle Group I, 38 C.F.R. § 4.56 provides principles to assist the Board in its evaluation. Under 38 C.F.R. § 4.56(c), the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. Additionally, 38 C.F.R. § 4.56(d) defines "moderate," "moderately severe," and "severe" as used in the muscle injury diagnostic codes, including Diagnostic Code 5301.

The Board notes that the Veteran is left-hand dominant. See 12/2/2016 C&P Examination.

Under DC 5301, for the nondominant hand, a noncompensable evaluation is warranted for a disability of Muscle Group I upward rotation of scapula; elevation of arm above shoulder level that is "slight." 38 C.F.R. § 4.73.

A 10 percent rating is warranted when the severity is measured as "moderate." 38 C.F.R. § 4.73. For VA purposes, moderate disability of muscles includes a record of consistent complaints of one or more of the cardinal signs and symptoms, particularly lowered threshold of fatigue after average use. 38 C.F.R. § 4.56(d)(2). It also includes some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power. Id.

 

A 20 percent rating is warranted when the severity is measured as "moderately severe." 38 C.F.R. § 4.73. Moderately severe disability of muscles includes a record of consistent complaints of cardinal signs and symptoms of muscle disability and evidence of inability to keep up with work requirements. 38 C.F.R. § 4.56(d)(3). It also includes indications of palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared to the sound side. Id. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. Id.

Finally, a 30 percent rating is warranted when the severity is "severe." 38 C.F.R. § 4.73. Severe disability of muscles includes a record of consistent complaint of cardinal signs and symptoms of muscle disability worse than those shown for moderately severe muscle injuries and evidence of inability to keep up with work requirements. 38 C.F.R. § 4.56(d)(4). It also includes indications on palpation of loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Id. Finally, severe disability includes muscles swelling and hardening abnormally in contraction, or a severe impairment of function compared to the uninjured muscle. Id.

The Veteran contends entitlement to a disability rating in excess of 30 percent for his partial paralysis of the right serratus anterior muscle disability. See 4/2/2009 

VA 21-4138; see also 6/9/2011 NOD.

Given the competent evidence of record, the Board finds that a rating in excess of the maximum 30 percent rating for his partial paralysis of the right serratus anterior muscle disability is not warranted. As the Veteran is already in receipt of the maximum rating available under DC 5301, a higher rating must be denied as a matter of law.

Moreover, the evidence does not show an entitlement to an extraschedular rating. In this regard, the March 2010 VA examination showed that the Veteran had slight winging of the right scapula. However, the examination also showed that the Veteran's shoulders had normal range of motion and he was able to raise his arm above shoulder level. See 2/26/2010 VA Examination. Additional VA examinations were conducted in December 2016 and November 2019. Both showed that the Veteran had winging of the right scapula and consistent weakness of the right group I muscles. However, the examinations also showed that the Veteran did not have muscle atrophy or a scar or fascial defects of the muscle injury. Finally, both examiners opined that the Veteran's disability caused no functional impact. See 12/2/2016 C&P Examination; see also 11/7/2019 C&P Examination.

The Board recognizes the Veteran's above-mentioned contentions regarding experiencing weakness with repetitive movement, lack of coordination, an inability to just straighten his arm out, and very little forward and no upward movement. 

He is competent to make those assertions based on his observable symptomatology and the Board finds him credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has considered those statements as relevant competent evidence, to include supporting the current finding of severe for muscle group I resulting in the current 30 percent rating. However, the Board assigns more probative value to the findings of the March 2010, December 2016, and November 2019 VA examiners. These examinations were conducted by medical professionals who performed testing during in-person sessions with the Veteran, they thoroughly reviewed the Veteran's medical history and their findings, for these reasons, exhibit sound clinical conclusions. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion).

In sum, as the weight of the evidence is against a higher rating for the Veteran's partial paralysis of the right serratus anterior muscle disability, the benefit of the doubt doctrine does not apply, and the Veteran's claim must be denied. 38 C.F.R. § 4.3.

3. Service connection for hyperreflexia of the bilateral lower extremities.

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be 

(1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998).

The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

The Veteran contends service connection for hyperreflexia. Specifically, at the Board hearing, the Veteran testified that his hyperreflexia was secondary to his in-service polio. See 2/23/2018 Hearing Transcript, at page 19.

Service treatment records showed that the Veteran had polio during active service. See 8/12/2015 STR  Medical, at page 4.

The record showed that service connection is in effect for a low back disability; thus, a claim for secondary service connection is applicable. The Board finds that the competent evidence of record establishes a secondary service connection claim.

The first medical evidence of hyperreflexia is dated in June 2007. Post service private medical records showed hyperreflexia on his right side. See 3/16/2010 Medical Treatment Record  Non-Government Facility, at page 24. Subsequently, the record showed that the Veteran was diagnosed with hyperreflexia in his bilateral lower extremities. See 4/23/2010 VA Examination, at page 10. Hence, 

the first element of a secondary service connection claim has been met.

The Veteran was afforded a VA examination in March 2010, which showed evidence of hyperreflexia. At the conclusion of the examination, the examiner opined that the Veteran's hyperreflexia, among others, suggested a cerebrovascular accident. See 2/26/2010 VA Examination, at page 7. After that, an April 2010 

VA examination showed a diagnosis of hyperreflexia. At the conclusion of the examination, the examiner rendered a negative nexus opinion. The examiner explained that, contrary to the conclusion of the March 2010 VA examiner's findings, the Veteran's neurological disabilities were not due to a cerebrovascular accident. Instead, the examiner opined that the Veteran's neurological disabilities were most likely caused by his known cervical spine disability. See 4/23/2010 

VA Examination, at page 4. However, the Veteran questioned the competency of the April 2010 VA examiner. The Veteran stated that a cervical spine disease affects the upper extremities not the lower extremities. Additionally, he stated that if the April 2010 VA examiner meant to say lumbar spine disability, it should be service connected on a secondary basis. See 3/27/2017 VA 21-4138.

The most recent VA examination was performed in November 2019. At the conclusion of the examination, the examiner opined that hyperreflexia is an objective examination finding and not a medical diagnosis. As such, the examiner rendered a negative nexus opinion. However, the examiner also opined that the Veteran's hyperreflexia is most likely a residual of the Veteran's spinal stenosis of the service-connected lumbar spine. See 11/7/2019 C&P Examination.

As such, resolving any reasonable doubt in favor of the Veteran, the regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a).

In sum, upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current hyperreflexia of the lower extremities is proximately due to his service-connected low back disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that the preponderance of the evidence weighs in favor of secondary service connection for hyperreflexia of the lower extremities is warranted. 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Service connection for a hip disability, to include as due to post-polio syndrome.

2. Service connection for a right ankle disability, to include as due to post-polio syndrome.

3. Service connection for muscle weakness, to include as due to post-polio syndrome.

After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

The Veteran contends service connection for a hip disability, a right ankle disability, and a muscle weakness disability. At the Board hearing, the Veteran testified that his hip disability, his right ankle disability, and his muscle weakness disability are due to post-polio syndrome. Additionally, he testified that his post-polio syndrome is manifesting in areas that were not initially identified as being affected by polio back when he was in service. See 2/23/2018 Hearing Transcript, at page 14, 16, 17, 18, and 23; see also 3/16/2010 Medical treatment Record  Non-Government Facility, at page 59. Further, the Veteran filed a document from WebMD and mentioned that it stated that "[i]t is possible when you had polio, [that] not all affected nerves caused noticeable muscle weakness. Therefore, you may develop weakness in muscles that you did not realize had been affected by polio." See 3/27/2017 VA 21-4138; see also 3/27/2017 Correspondence. Moreover, he reported that due to in-service polio, he experiences whole body weakness, intense spasms, and difficulty getting up, is susceptible to cold, and uses a cane for balance and support, and a brace for his ankle. See 4/2/2009 VA 21-4138. 

In addition, he complains of intermittent spasms of his generalized muscles especially in the arms and legs. He also states that he has fallen several times and has occasionally dropped objects. Furthermore, he asserts difficulty arising from a squatting position or a chair, some difficulty walking, and states "my body [is] worn out." Additionally, the veteran complains of a constant hurting sensation in the muscles of his entire body. See 2/26/2010 VA Examination, at page 4.

As mentioned above, service treatment records showed that the Veteran had polio during active service. See 8/12/2015 STR  Medical, at page 4.

The record showed that the Veteran was diagnosed with hip osteoarthritis. See 3/16/2010 Medical Treatment Record  Non-Government Facility, at page 30. Additionally, the Veteran was diagnosed with degenerative arthritis of the right ankle. See 11/7/2019 C&P Examination.

Regarding the Veteran's hip disability, the record showed a private statement by 

Dr. M.J.G., M.D., who "think[s] [that the Veteran] has developed a pattern of hip hiking as [the Veteran] does not trust the clearance that his right ankle is providing." See 5/9/2018 Medical Treatment Record  Non-Government Facility, at page 3.

The Veteran underwent a VA examination in November 2019. The Veteran was diagnosed with hip osteoarthritis. At the conclusion of the examination, 

the examiner opined that the Veteran's hip disability was less likely than not incurred in or caused by service. As rationale, the reviewing clinician stated that the record showed no complaints until 2007. Additionally, the examiner stated that there is no nexus for the Veteran's polio during service in 1957 to cause hip osteoarthritis in 2007. Further, the examiner stated that the Veteran's hip disability is most likely due to age-related factors. See 11/7/2019 C&P Examination. However, the Board finds this opinion inadequate because it does not show adequate consideration of all relevant evidence, to include the statement from 

Dr. M.J.G., the Veteran's lay contentions about his symptoms, and the articles filed by the Veteran about post-polio syndrome. See 3/16/2010 Medical Treatment Record  Non-Government Facility, at page 59; see also 5/9/2018 Medical Treatment Record  Non-Government Facility, at page 3; 3/27/2017 Correspondence; 5/9/2018 Third Party Correspondence.

Regarding the Veteran's right ankle disability, he underwent a VA examination in November 2019. At the conclusion of the examination, the reviewing clinician opined that the Veteran's right ankle disability was less likely than not incurred in or caused by service. As rationale, the reviewing clinician stated that the record showed no complaints until 2019. Additionally, the examiner stated that there is no nexus for the Veteran's polio during service in 1957 to cause hip osteoarthritis in 2019. Further, the examiner stated that the Veteran's hip disability is most likely due to age-related factors. Moreover, regarding prior findings, the examiner stated that right ankle clonus is an objective medical finding and not a medical diagnosis or condition, and that the right ankle clonus resolved without residuals. See 11/7/2019 C&P Examination. However, the Board finds this opinion inadequate because it does not show adequate consideration of all relevant evidence, to include the Veteran's lay contentions about his symptoms and the articles filed by the Veteran about the effects of post-polio syndrome. See 3/16/2010 Medical Treatment Record  Non-Government Facility, at page 59; see also 3/27/2017 Correspondence; 5/9/2018 Third Party Correspondence.

Regarding the muscle weakness disability, the record showed a private statement from Dr. T.F., M.D., who "feel[s] [that] the majority of [the Veteran's] weakness is due to post-polio syndrome." See 3/16/2010 Medical Treatment Record  Non-Government Facility, at page 33. Additionally, an electromyography/nerve conduction velocity test showed that "motor unit abnormalities are present in all extremity muscles, reflecting the effect of the polio." Id. at page 54.

The Veteran underwent a VA examination in November 2019. At the conclusion of the examination, the examiner opined that there was no evidence of any pathology or diagnosis of any systemic muscle disability which affects the Veteran's entire body. See 11/7/2019 C&P Examination. However, the Board finds this opinion inadequate because it does not show adequate consideration of all relevant evidence, to include the Veteran's lay contentions about his symptoms and the articles filed by the Veteran about the effects of post-polio syndrome. See 3/16/2010 Medical Treatment Record  Non-Government Facility, at page 59; see also 3/27/2017 Correspondence; 5/9/2018 Third Party Correspondence.

As such, the Board finds that an addendum opinion that considers the entire record and addresses any relationship between the Veteran's hip disability, right ankle disability, and muscle weakness disability and service is warranted.

These matters are REMANDED for the following actions:

1. Obtain any and all of the Veteran's outstanding records from appropriate repositories. All records and/or responses received should be associated with the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide the records.

2. After completing directive #1, return the claims file to the examiner who conducted the November 2019 VA hip and thigh conditions examination and authored the opinion. The clinician is to review the virtual file, including a copy of this Remand. If the November 2019 VA examiner is not available, then please use an appropriate qualified clinician to answer the questions below.

 

After review of the claims file, the examiner is to specifically address:

Whether it is at least as likely as not that the Veteran's current hip disability is related to an in-service injury, event, or disease.

**In doing so, the examiner must address the Veteran's contentions that his hip disability is due to post-polio syndrome. Additionally, he testified that his post-polio syndrome is manifesting in areas that were not initially identified as being affected by polio back when he was in service. See 2/23/2018 Hearing Transcript, at page 14, 16, 17, 18, and 23; see also 3/16/2010 Medical treatment Record  Non-Government Facility, at page 59. 

Further, the examiner must consider the article intitled "Post-Polio Syndrome  Topic Overview," which stated that "[i]t is possible when you had polio, [that] not all affected nerves caused noticeable muscle weakness. Therefore, you may develop weakness in muscles that you did not realize had been affected by polio." The examiner must also consider the article intitled "Post-Polio Syndrome." See 3/27/2017 VA 21-4138; see also 3/27/2017 Correspondence.

Moreover, the examiner must consider the private statement by Dr. M.J.G., M.D., who "think[s] [that the Veteran] has developed a pattern of hip hiking as [the Veteran] does not trust the clearance that his right ankle is providing." See 5/9/2018 Medical Treatment Record  Non-Government Facility, at page 3.**

(The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements. Note: A full credibility determination will be made at a later date, if needed, once additional evidence has been added to the claims file).

A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training).

3. After completing directive #1, return the claims file to the examiner who conducted the November 2019 VA ankle conditions examination and authored the opinion. The clinician is to review the virtual file, including a copy of this Remand. If the November 2019 VA examiner is not available, then please use an appropriate qualified clinician to answer the questions below.

After review of the claims file, the examiner is to specifically address:

Whether it is at least as likely as not that the Veteran's current right ankle disability is related to an in-service injury, event, or disease.

**In doing so, the examiner must address the Veteran's contentions that his right ankle disability is due to post-polio syndrome. Additionally, 

he testified that his post-polio syndrome is manifesting in areas that were not initially identified as being affected by polio back when he was in service. See 2/23/2018 Hearing Transcript, at page 14, 16, 17, 18, and 23; see also 3/16/2010 Medical treatment Record  Non-Government Facility, at page 59. 

Further, the examiner must consider the article intitled "Post-Polio Syndrome  Topic Overview," which stated that "[i]t is possible when you had polio, [that] not all affected nerves caused noticeable muscle weakness. Therefore, you may develop weakness in muscles that you did not realize had been affected by polio." The examiner must also consider the article intitled "Post-Polio Syndrome." See 3/27/2017 VA 21-4138; see also 3/27/2017 Correspondence.

(The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements. Note: A full credibility determination will be made at a later date, if needed, once additional evidence has been added to the claims file).

A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). 

4. After completing directive #1, return the claims file to the examiner who conducted the November 2019 VA muscle injuries examination and authored the opinion. The clinician is to review the virtual file, including a copy of this Remand. If the November 2019 VA examiner is not available, then please use an appropriate qualified clinician to answer the questions below.

After review of the claims file, the examiner is to specifically address:

Whether it is at least as likely as not that the Veteran's current muscle weakness disability is related to an in-service injury, event, or disease.

**In doing so, the examiner must address the Veteran's contentions that his muscle weakness disability is due to post-polio syndrome. Additionally, he testified that his post-polio syndrome is manifesting in areas that were not initially identified as being affected by polio back when he was in service. See 2/23/2018 Hearing Transcript, at page 14, 16, 17, 18, and 23; see also 3/16/2010 Medical treatment Record  Non-Government Facility, at page 59. 

Further, the examiner must consider the article intitled "Post-Polio Syndrome  Topic Overview," which stated that "[i]t is possible when you had polio, [that] not all affected nerves caused noticeable muscle weakness. Therefore, you may develop weakness in muscles that you did not realize had been affected by polio." The examiner must also consider the article intitled "Post-Polio Syndrome." See 3/27/2017 VA 21-4138; see also 3/27/2017 Correspondence.

Moreover, the examiner must address the results from an electromyography/nerve conduction velocity test showed that "motor unit abnormalities are present in all extremity muscles, reflecting the effect of the polio." Id., at page 54.

In addition, the examiner must consider the private statement from Dr. T.F., M.D., who "feel[s] [that] the majority of [the Veteran's] weakness is due to post-polio syndrome." See 3/16/2010 Medical Treatment Record  Non-Government Facility, at page 33.**

(The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements. Note: A full credibility determination will be made at a later date, if needed, once additional evidence has been added to the claims file).

A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training).  

 

 

Paul Sorisio

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.F., 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.