Citation Nr: 21065769 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 07-17 432A DATE: October 27, 2021 ORDER Service connection for a left ankle condition is denied. Service connection for a respiratory condition is denied. REMANDED A rating higher than 40 percent for the lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 11, 2020, is remanded. FINDINGS OF FACT 1. A current diagnosis involving the left ankle is not shown by the evidence of record and there is no indication the Veteran's left ankle pain is a symptom that results in functional impairment of earning capacity. 2. A current diagnosis involving the respiratory system is not shown by the evidence of record and there is no indication the Veteran has respiratory symptoms that result in functional impairment of earning capacity. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for service connection for a respiratory condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1994 to July 1998. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in March 2006 and October 2006. A transcript of testimony provided by the Veteran and his parents in June 2012 during a videoconference hearing before the undersigned Veterans Law Judge is of record. The Board remanded the claims in September 2012, June 2017, and March 2021. In a May 2021 rating decision, the RO assigned a 40 percent rating for the lumbar spine disability effective September 7, 2005, and granted entitlement to a TDIU effective February 11, 2020; the RO also granted service connection for a scar associated with the lumbar spine disability. Service Connection 1. Service connection for a left ankle condition 2. Service connection for a respiratory condition Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran seeks service connection for a left ankle condition as a secondary to his service-connected right ankle sprain and for a respiratory condition, to include as a result of claimed exposure to diesel fuel fumes and asbestos. The preponderance of the evidence, however, is against the claims. A current disability is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability, there can be no valid claim. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Review of the medical evidence of record does not reveal a current diagnosis involving the left ankle or the respiratory system. Without evidence of a current disability affecting the left ankle or respiratory system, or evidence of symptoms that result in functional impairment of earning capacity, service connection is not warranted, and the claims must be denied. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Board acknowledges the assertion raised in the December 2020 brief that the record contains a diagnosis of chronic obstructive pulmonary disease (COPD) during the pendency of the claim and that is enough to satisfy the requirement for a current diagnosis per McClain v. Nicholson, 21 Vet. App. 319. The Board notes, however, that while the Veteran was diagnosed with COPD during a 2012 VA examination, that examination did not include pulmonary function testing (PFT). The most recent VA examination conducted in April 2018 did, and the findings were normal. The Board attaches greater probative value to the April 2018 VA examination finding of no current respiratory disorder because it was based on clinical testing rather than reported history. The Board also notes that the 2012 VA examiner specifically determined that the Veteran's symptoms of early COPD were due to his extensive smoking history, and that while the 2018 VA examiner considered exposure to asbestos and other chemicals, the examiner noted that PFT showed no dyspnea or chronic changes and that the Veteran is a smoker and has a chronic cough. The Board also acknowledges the assertion raised in the December 2020 brief that the 2018 examiner appears to have provided conflicting statements regarding the claim for the left ankle, since it was stated that there was no evidence of a current left ankle disability to support the unfavorable opinion on secondary causation, but conceded that "the pain in the left ankle may be somewhat aggravated by the right ankle condition" but there were other factors involved. The Veteran asserts that if the examiner is incapable of separating out the degrees of involvement then the Board must resolve the benefit of the doubt in his favor and attribute all of the left ankle problem to the service-connected right ankle disability. He further stated that he disagreed on principle that the examiner concluded there was no objective disability of the left ankle (causation opinion) but conceded there was pain (aggravation opinion) and that there was not enough detail to adequately ascertain the full functional impairment in earning capacity due to the left ankle. Finally, the Board acknowledges the assertion raised in the September 2021 brief that the VA examinations conducted in conjunction with these claims for service connection were inadequate because they did not acknowledge the severity of the Veteran's left ankle or bronchitis. The Board disagrees with these assertions. All examinations conducted during the appeal concerning the claims for service connection were comprehensive in that they considered the Veteran's assertions regarding left ankle and respiratory symptomatology, the service treatment records, and the post-service medical evidence of record. Moreover, the 2018 respiratory exam included PFT and the 2018 left ankle examination included an x-ray, both of which were normal, and the VA examinations specifically considered functional impairment, as required by Saunders. The Board reiterates that only symptoms, to include pain, that result in functional impairment of earning capacity can satisfy the evidence of current disability element to establish a claim for service connection. There is no conflict in the 2018 VA examiner's determination that there is no current left ankle disability while acknowledging the Veteran's complaints of left ankle pain. That is to say that while the 2018 VA examiner did report on left ankle pain, that left ankle pain did not manifest in objective evidence of functional impairment to satisfy the element of service connection requiring a current disability. In sum, the preponderance of the probative evidence is against the claims, and service connection is denied. REASONS FOR REMAND 1. A rating higher than 40 percent for the lumbar spine disability Disabilities of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51,454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). During VA examination in March 2020, the examiner reported that the Veteran had erectile dysfunction as a result of his lumbar spine disability. Although the examination template prompted the examiner to conduct an appropriate VA examination for each neurological abnormality identified other than radiculopathy, it does not appear that was completed. This must be done on remand. The Veteran also underwent a VA peripheral nerves examination in March 2020, conducted by the same examiner, during which the examiner identified several nerves of the lower extremities as being affected; more specifically, both sciatic nerves; the right external popliteal (common peroneal) nerve; the right anterior crural (femoral) nerve; the right external cutaneous nerve of the thigh; and the right ilio-inguinal nerve. There was also discussion about the fact that the Veteran is diabetic and has diabetic peripheral neuropathy as well as radiculopathy; and that some of the lower extremity neuropathy is likely to be aggravated by his type 2 diabetes mellitus, especially the numb toes on the right foot, but is most likely a residual from the lumbar condition. The examiner also reported that a December 2019 electromyograph of the lower extremities was abnormal, with no electrodiagnostic evidence of acute right lumbar radiculopathy corresponding to his current symptoms; electrodiagnostic evidence of sensorimotor axon loss peripheral neuropathy; and that lateral femoral cutaneous neuropathy cannot be ruled out. Since it is unclear to the Board which neurological manifestations are attributable to the lumbar spine disability, clarification is needed. This is especially important since during the March 2020 VA examination of the Veteran's lumbar spine, only the right femoral nerve and right sciatic nerve were reported as the nerve roots involved. The Board notes that the Veteran is already separately service-connected for right and left lower extremity radiculopathy rated under the diagnostic criteria for incomplete paralysis of the sciatic nerve. 2. Entitlement to TDIU prior to February 11, 2020 The issue of entitlement to a TDIU was raised in conjunction with the Veteran's claim for increased rating for his lumbar spine disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The RO established entitlement to a TDIU effective February 11, 2020, in a May 2021 rating decision. The issue of entitlement to a TDIU due to the service-connected lumbar spine disability prior to that date remains on appeal and is inextricably intertwined with the claim for increased rating. The matters are REMANDED for the following action: 1. Schedule an appropriate VA examination to address the finding of erectile dysfunction due to the lumbar spine disability during the March 2020 VA examination. 2. Send the claims file to a VA examiner other than the one who examined the Veteran in March 2020. Following review of the claims file, the examiner is asked to clarify whether just the right femoral nerve and right sciatic nerve were affected by the lumbar spine disability or whether both sciatic nerves; the right external popliteal (common peroneal) nerve; the right external cutaneous nerve of the thigh; and the right ilio-inguinal nerve were affected by the lumbar spine disability. 3. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.