Citation Nr: 21066191 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-41 292 DATE: October 28, 2021 ORDER Entitlement to service connection for a right leg disability is denied. Entitlement to service connection for a left thigh disability is denied. Entitlement to a rating in excess of 40 percent for a lumbar spine disability is denied. REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for an ingrown toenail disability is remanded. FINDINGS OF FACT 1. The Veteran does not have a right leg disability, separate and distinct from her service-connected right lower extremity radiculopathy. 2. The Veteran does not have a left thigh disability, separate and distinct from her service-connected left lower extremity radiculopathy. 3. The Veteran's lumbar spine disability is not manifested by unfavorable ankylosis of the spine or intervertebral disc syndrome necessitating bed rest. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right leg disability have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2019). 2. The criteria for entitlement to service connection for a left thigh disability have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2019). 3. The criteria for a rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321. 4.3, 4.7, 4.40, 4.59, 4.71a, Diagnostic Code 5242 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty as a commissioned officer in the U.S. Army from October 2004 to February 2007 including service in Southwest Asia and with additional service in the Army Reserve. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. Although the Veteran failed to submit a substantive appeal with regard to the back rating issue, VA has taken actions which would reasonably have led the Veteran to believe that the issue was on appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009). As such, the Board will proceed with appellate consideration of this increased rating claim as well. In April 2019, the Board remanded these issues to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-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 nonservice connected disease or injury will be service-connected. 38 C.F.R. § 3.310(b). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a right leg disability 2. Entitlement to service connection for a left thigh disability The Veteran contends that she is entitled to service connection for a left thigh and right leg disability due to her back disability. See July 2017 VA form-9. A March 2015 EMG of the lower extremities was normal, with no evidence of lumbar radiculopathy or peripheral neuropathy. During April 2015 VA treatment, the Veteran reported low back pain which radiated to her right hip and down her right leg and through her left buttocks to left thigh. She told the treating physician that following April 2014 back surgery, her left thigh and left leg symptoms had improved but she experienced right hip and leg pain. The Veteran attended a VA examination for her back in July 2015. In regard to radicular pain or symptoms, the examiner noted that the Veteran had mild left lower extremity paresthesias or dysesthesias. He explained that the sciatic nerve impacted the left side. He did not note any radicular pain or symptoms for the right leg. August 2015 VA treatment records reveal that the Veteran reported, "right lower back pain with pain and numbness down right leg." During March 2017 VA treatment, the Veteran reported that her low back pain radiated down her right and left leg. On her July 2017 VA form-9, the Veteran explained that her left thigh pain and right leg pain were residuals of her lower back condition. The Veteran attended a VA examination in November 2019. She denied any functional loss or functional impairments of the lower leg. She reported pain radiating to her legs from her back. Her range of motion and muscle strength were all normal and there was no pain noted. The examiner determined that there was no functional impact. He explained that the Veteran did not have a separate thigh, or leg condition, but rather referred pain from the back disability. A July 2020 rating decision granted service connection for right and left lower extremity radiculopathy, secondary to the back disability, effective November 14, 2019. The Veteran did not appeal the effective dates assigned, and the Board does not have jurisdiction over that issue. In August 2020 correspondence, the Veteran's physician submitted a letter stating that he had been treating the Veteran since 2008 for low back pain that radiated down to her lower extremities. While the evidence reflects right and left lower extremity radiculopathy, the Board concludes that the Veteran does not have another separate and distinct left thigh or right leg disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. See 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); McKinney v. McDonald, 28 Vet. App. 15 (2016); 38 C.F.R. § 3.303 (a), (d). Under 38 U.S.C. § 1110, there must be a disability due to an identified personal injury suffered or disease or injury, contracted in-service. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Herein, there is no evidence of additional functional limitation separate from her already service-connected lower extremity radiculopathy. The Board finds the Veteran's treating physician's August 2020 letter explicitly stating that the Veteran's low back pain radiated to her lower extremities to be highly probative. No other disability was mentioned that would have caused lower extremity pain. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for right leg and left thigh disabilities. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claims are denied. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If there is a question as to which evaluation to apply to the Veteran's disability, 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. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. 3. Entitlement to a rating in excess of 40 percent for a lumbar spine disability The Veteran's back disability is evaluated as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Diagnostic Code 5242 is rated pursuant to the criteria of a General Rating Formula. See 38 C.F.R. § 4.71a. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 rating is warranted for 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Diagnostic Code 5243 provides for rating intervertebral disc syndrome (IVDS). IVDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least one week, but less than two weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. Id. Early April 2014 private treatment records reflect that the Veteran ambulated independently. She exhibited full back strength. The Veteran underwent a left L4-L5 hemilaminectomy, diskectomy in April 2014 at a private facility. She was initially scheduled as ambulatory, but she later developed significant pain in her left leg postoperatively, requiring muscle relaxers and Decadron. However, by post-op day two, she ambulated with physical therapy. By post-op day three she had improvement in her left lower extremity pain and after being cleared by physical therapy, she was discharged home. June 2014 private treatment records reflect that the Veteran walked with a normal gait using a cane and was able to drive. The Veteran submitted a claim for entitlement to an increased rating for her back disability in December 2014. Upon VA examination in July 2015, the Veteran reported constant pain, worse with sitting, standing, bending and lifting. She denied any incapacitating episodes, flare-ups, or functional loss. Range of motion testing revealed flexion to 50 degrees, and extension to 20 degrees. Pain was noted on examination but did not result in functional loss. The Veteran was examined immediately following repetitive use and pain, weakness, fatiguability, and incoordination did not significantly limit functional ability. The examiner determined that the Veteran did not have ankylosis, IVDS, or any other neurologic abnormalities. The examiner determined that the Veteran's back disability would not impact her ability to work. The Veteran attended another VA examination in November 2019. She reported daily pain but denied any flare-ups or functional loss. Range of motion testing revealed flexion to 49 degrees, and extension to 20 degrees. Pain was noted on examination but did not result in functional loss. The Veteran was examined immediately following repetitive use and pain, weakness, fatiguability, and incoordination did not significantly limit functional ability. The examiner determined that the Veteran did not have ankylosis, IVDS, or any other neurologic abnormalities. Her muscle strength was all normal. The examiner determined that the Veteran's back disability would not impact her ability to work. There is also no probative evidence to suggest that the Veteran has ever experienced unfavorable clinical or functional ankylosis of the entire thoracolumbar spine at any time, and therefore he is not entitled a rating in excess of 40 percent. Neither the Veteran, her treatment records, nor the VA examinations reflect any unfavorable ankylosis. The Veteran's functional loss was considered, as the medical evidence shows that the Veteran consistently reports back pain. 38 C.F.R. §§ 4.40, 4.45. However, the examiners generally took pain into account in the findings of range of motion. Even considering pain, neither the July 2015 VA examination report nor the November 2019 VA examination report found any functional loss due to the low back disability. Thus, any degree of additional limitation caused by pain is already contemplated in the disability rating currently assigned. There is otherwise no evidence of impairment of motor skills, muscle function, or strength, and the Veteran is able to walk and drive. Consequently, the Board finds that a higher compensable rating based on functional loss is not warranted. Additionally, as the record contains no reports of incapacitating episodes as due to a back disability during the period on appeal, the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes does not provide a basis for increased ratings. To the extent that the Veteran contends that her disability is more severe than reflected by the rating assigned herein, the Board observes that the Veteran can attest to factual matters of which she has first-hand knowledge and understanding as a lay person, such as pain or weakness. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, we conclude that the observations of medical professionals are more probative and credible than her lay opinion. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for her back disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 5. Entitlement to service connection for a right hip disability The Veteran contends that she has a right hip disability secondary to her low back disability. Post-service medical records document a diagnosis of right hip degenerative joint disease and right hip bursitis. See August 2014 private diagnostic testing. During April 2015 VA treatment, the Veteran reported low back pain which radiated to her hip. She told the treating physician that following April 2014 back surgery, her left thigh and left leg symptoms had improved but she experienced right hip and leg pain. March 2017 VA treatment records reflect that the Veteran received injections in her right hip to treat pain. She explained that following private April 2014 surgery, she began experiencing right groin and hip pain. Hip pain is listed as an active problem in January 2018 VA treatment records. The Veteran attended a VA examination in November 2019. She denied any functional loss or functional impairments of the hips. Her range of motion and muscle strength were all normal and there was no pain noted. The examiner determined that there was no functional impact. He explained that the Veteran did not have a separate hip disability but rather referred pain from the back disability. In a June 2020 addendum opinion, the VA examiner stated that he did not make any diagnosis of arthritis in the November 2019 VA examination. He did not mention the April 2014 private treatment which stated otherwise or provide an opinion regarding etiology. Accordingly, an addendum opinion is necessary. 6. Entitlement to service connection for an ingrown toenail disability The Veteran contends that she is entitled to service connection for a chronic ingrown toenail disability. The Veteran's STRs document complaints of toenail pain in-service treated with prescribed urea cream. An October 2005 treatment note documents reported partial nail avulsions on bilateral hallus while in Iraq. The Veteran attended a VA examination in November 2019. The examiner determined that the Veteran's ingrown toenail condition had resolved prior to the period on appeal and therefore service connection was not warranted. Nevertheless, the examiner also provided an explanation why this disorder, previously treated, was not caused by service. In August 2020 correspondence, the Veteran's podiatrist submitted a letter stating that he had been treating the Veteran for podiatry issues since May 2007 to the present. Treatment included chronically ingrown toenails. Although the August 2020 letter refutes the November 2019's VA examiner's conclusions that the Veteran's ingrown toenail disability had resolved, the physician did not offer an opinion on etiology. Accordingly, an addendum opinion is necessary. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records for the Veteran's hip and feet and associate with the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for any private hip and feet treatment. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of her right hip disability. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disability, including the Veteran's competent account of her symptoms. Following review of the claims file and examination of the Veteran, if necessary, the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the diagnosed right hip disability had its onset during active service or within one year of the Veteran's separation, or is otherwise related to service? The examiner is asked to discuss the complaint of hip pain documented in the Veteran's STRs. The examiner is also asked to discuss the post-service diagnoses of degenerative joint disease and right hip bursitis. (b.) Is it at least as likely as not that the diagnosed right hip disability was caused or aggravated by the Veteran's service-connected lumbar spine spondylosis and degenerative joint disease? The examiner is asked to address both causation and aggravation. Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Schedule the Veteran, if necessary, for a VA examination to determine the nature and etiology of her ingrown toenails. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disability, including the Veteran's competent account of her symptoms. Following review of the claims file and examination of the Veteran, if necessary, the examiner should opine whether it at least as likely as not (50 percent probability or greater) that the diagnosed ingrown toenails had their onset during active service, or within one year of the Veteran's separation from active service, or are otherwise related to service? The examiner is asked to discuss the complaint of toenail pain and prescribed urea cream documented in the Veteran's STRs and the opinion of the November 2019 examiner that the disorder is common in the general population, often caused by tight shoes which was not evident in this Veteran's case. The examiner is also asked to discuss the August 2020 letter from the Veteran's podiatrist. 5. After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran's claim. If any of the benefits sought are not granted in full, the AOJ should furnish the Veteran and his representative with an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.