Citation Nr: 21067582 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 11-12 204 DATE: November 4, 2021 ORDER Entitlement to service connection for tropical sprue is granted. Entitlement to a disability rating for lumbar fibromyositis (back disability) of 40 percent, and no higher, for the period on appeal prior to July 15, 2021, is granted. Entitlement to a disability rating in excess of 40 percent for back disability is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his tropical sprue is at least as likely as not related to active service. 2. Resolving reasonable doubt in favor of the Veteran, his back disability is manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; ankylosis and intervertebral disc syndrome (IVDS) have not been shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tropical sprue have been met. 38 U.S.C. § 1110, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 2. The criteria for a disability rating of 40 percent for back disability, prior to July 15, 2021, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 5237. 3. The criteria for a disability rating in excess of 40 percent for back disability, beginning July 15, 2021, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to June 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In September 2008, the Veteran filed a notice of disagreement (NOD) and in February 2011, the RO issued a statement of the case (SOC). In March 2011 the Veteran timely submitted a substantive appeal. In a September 2018 decision, the Board remanded these issues for additional development, which has been substantially completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. In February 2020, the Veteran filed a claim for a TDIU due to his service-connected disabilities, to include his lumbar disability. Therefore, the issue of entitlement to a TDIU is before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2020). 38 U.S.C. § 7107(a)(2) (2020). 1. Entitlement to service connection for tropical sprue is granted. The Veteran is seeking entitlement to service connection for tropical sprue. Specifically, he contends that he has experienced gastric conditions and discomfort since service. See December 2007 Claim. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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 means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability 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). A Veteran is competent to describe symptoms that she experienced in service or at any time after service when the symptoms he perceived or experienced, were directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, at 469-71 (1994). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). After a review of the entire evidentiary record and in light of the applicable legal criteria, affording the Veteran the benefit of the doubt, the Board finds that service connection is warranted for tropical sprue. As a preliminary matter, the Veteran has a diagnosis of tropical sprue. See January 2011 Private Treatment Record; see also September 1988 Private Treatment Record. As such, the first element of service-connection has been met. Regarding the second element of service connection, although service treatment records (STRs) show that the Veteran had a sore throat and vomited at a field station in December 1966, there is no indication that the Veteran complained or was treated for or diagnosed with tropical sprue during service. As such, the second element of service connection has not been met. However, service connection may still be granted for chronic conditions that have manifested continuous symptomology since separation of service. Turning to the evidence of record, a private treatment record from March 1988 shows that the Veteran had chronic nausea and diarrhea since he came home from Vietnam. A September 1988 private treatment record indicated that the Veteran was treated for tropical sprue. In a January 2011 private opinion, the Veteran's treating physician reviewed the Veteran's file and opined that the Veteran's tropical sprue symptoms began during service in Vietnam, which is an area known for tropical sprue. In an August 2021 VA opinion, an examiner indicated that the symptoms for Tropical sprue include asthenia, general weakness, and diarrhea. The Veteran's tropical sprue residuals are distinct from the symptoms associated with his service-connected GERD. The examiner then opined that following a review of the medical record, the Veteran's tropical sprue is less likely than not related to service. He supported his opinion by explaining that the STR is silent for a tropical sprue condition during service or one year after separation. The STR did not show clinical evidence of treatment, medical followup or signs or symptoms associate to this condition. The Veteran's tropical sprue condition dates to 1988, around 28 years after his service, and the Veteran lives in an area endemic for tropical sprue. In addition, the medical literature does not support that tropical sprue is acquired 28 years after service in an endemic area. Here, the January 2011 private opinion is adequate for adjudicative purposes and of probative value. The examiner based his opinion on treatment of the Veteran, considered lay testimony, and his opinion is consistent with the record and STRs. Contrastingly, the Board finds that the August 2021 VA opinion is inadequate for adjudicative purposes. The examiner fails to address the treatment records indicating that the Veteran has experienced symptoms of tropical spue since his return from Vietnam and his STRs. As such, it is afforded little, if any, probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing, the evidence as to whether the Veteran's tropical sprue is related to service is, at the very least, in relative equipoise. The Board resolves reasonable doubt in the Veteran's favor and finds that his tropical sprue symptoms have been consistent since service and the third element of service connection has been met. Gilbert, supra. As the three elements of service connection have been met, service connection for the Veteran's tropical sprue is warranted. 2. Entitlement to a disability rating for back disability of 40 percent, and no higher, for the period on appeal prior to July 15, 2021, is granted. 3. Entitlement to a disability rating in excess of 40 percent for back disability in excess of 40 percent is denied. The Veteran is seeking a higher disability rating for his service connected back disability. Specifically, he contends that his disability is more severe than reflected by his currently assigned disability ratings. A disability rating is determined by the application of 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 be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed the entire record but will only discuss the evidence necessary to explain its decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence); see Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. See 38 C.F.R. §§ 4. 40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). As such, in evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, this regulation is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court of Appeals for Veterans Claims (Court) has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability to "perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id. (quoting 38 C.F.R. § 4. 40). Here, the Veteran has been assigned a 20 percent disability rating for his back disability for the period on appeal prior to July 15, 2020; and a 40 percent disability rating, thereafter, under Diagnostic Code 5237. Disabilities of the spine are rated under the General Rating Formula for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Rating Formula); whichever method results in the higher evaluation when all disabilities are combined will be used. Here, ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. Under the General Rating Formula, a 20 percent disability rating is assigned 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, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, Note 5. In a recent case at the Court of Appeals for Veterans Claims, the Court decided that analysis of functional loss equivalent to ankylosis is applicable to evaluations for spinal disabilities. Chavis v. McDonough, U.S. App. Vet. Claims LEXIS 660 (2021). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations, VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Under the IVDS Rating Formula, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 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. 38 C.F.R. § 4.71a. Turning to the evidence of record, throughout the appeal period, the Veteran's back disability has manifested by, at worst, flexion to 30 degrees. VA treatment records, private treatment records, lay statements, and VA examinations throughout the appeal period do not show that the Veteran has ankylosis or loss of muscle strength and his reflexes and sensory examinations were generally normal. Passive range of motion (ROM) was estimated to be the same as active ROM, with no objective evidence of pain, and IVDS was also not shown. Functional limitation included avoiding prolonged standing and ambulation in addition to lifting and carrying heavy objects. July 2015 VA Examination; see also September 2020 VA Examination; August 2009 VA Examination; see generally VA Treatment Records; Private Treatment Records. Considering the foregoing and based on the applicable legal criteria, resolving reasonable doubt in favor of the Board finds that for period on appeal prior to July 15, 2021, a 40 percent disability rating, and no higher, is warranted. For the period on appeal beginning July 15, 2021, a disability rating in excess of 40 percent is not warranted. As indicated above, the Veteran's VA treatment records, private treatment records, lay assertions, and VA examinations show that, at worst, throughout the appeal period, the Veteran's forward flexion was limited to 30 degrees. Therefore, based on the objective medical evidence of record, the Veteran's symptomatology is more nearly approximated by a disability rating of 40 percent, which contemplates such limitation of motion. A higher disability rating of 60 percent is not warranted because the record is negative for any additional limitation of motion or evidence of ankylosis or immobility of the spine. In reaching this determination, the Board acknowledges that the VA examinations of record do not indicate the Veteran's limitation of motion during flare-ups, despite competent lay reports of flareups throughout the appeal period. As the instant decision grants an increased disability rating of 40 percent (the maximum schedular rating based on limitation of motion) for the entire period on appeal, and there is no indication of immobility of the spine, a remand for a new VA examination compliant with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), is unnecessary. The Board has also considered the Veteran's competent and consistent contentions regarding pain throughout the record. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Such statements are credible and afforded probative weight. However, the Board finds that the objective medical findings by skilled professionals, which incorporate the Veteran's competent assertions with regard to pain provide the most persuasive evidence regarding the limitations posed by the Veteran's lumbar spine disability. Furthermore, the Veteran has not contended and the record--to include VA treatment records and lay assertions--do not show that the Veteran has additional limitation of motion beyond 30 degrees. The Board has additionally considered whether the Veteran is entitled to a higher rating for his back disability based on the IVDS Rating Formula. As noted above, the Veteran does not have a diagnosis of IVDS. As such, there is no indication in the record that the Veteran has experienced incapacitating episodes of IVDS so as to warrant a higher disability rating of 60 percent for IVDS. Based on the foregoing, the Board finds that a disability rating of 40 percent, and no higher, for the period on appeal prior to July 15, 2021 is warranted. A disability rating in excess of 40 percent, beginning July 15, 2021 is not warranted. REASONS FOR REMAND 1. Entitlement to a TDIU due to service-connected disabilities is remanded. The Board has granted service connection for tropical sprue. After implementation of the Board's decision and assignment of an initial disability rating, the issue of TDIU entitlement must be re-adjudicated since determining whether a TDIU should be considered on a schedular or an extraschedular basis depends on the ratings assigned for service-connected disabilities. 38 C.F.R. § 4.16(a). The matters are REMANDED for the following action: 1. Adjudicate the initial disability rating for the Veteran's tropical sprue. Then readjudicate the TDIU issue on appeal. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.