Citation Nr: 21072250 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 15-18 355 DATE: December 2, 2021 ORDER Entitlement to service connection for right elbow disability is dismissed. Entitlement to service connection for right ankle osteoarthritis is granted. Entitlement to service connection for right foot disability is granted. Entitlement to an extraschedular rating of 10 percent for low back strain, chronic with facet arthritis L5, S1 with sciatic nerve involvement, resulting in a 50 percent rating when combined with the current 40 percent schedular rating, is granted. FINDINGS OF FACT 1. In December 2020, the RO granted entitlement to service connection right elbow scar, the precise benefit sought by the Veteran. 2. The evidence is at least evenly balanced as to whether the Veteran's right ankle disability is related to service. 3. The evidence is at least evenly balanced as to whether the Veteran's right foot disability is related to service. 4. The criteria for rating spine disabilities do not adequately contemplate the symptoms of the Veteran's low back strain, chronic with facet arthritis L5, S1 with sciatic nerve involvement and these symptoms cause marked interference with employment; and impairment more nearly approximates an additional 10 percent rating, but no higher, beyond the current schedular rating of 40 percent. CONCLUSIONS OF LAW 1. The criteria for dismissal of right elbow disability have been met. 38 U.S.C. § 7105(d). 2. The criteria for service connection for right ankle disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for right foot disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for an extraschedular rating of 10 percent for low back strain, chronic with facet arthritis L5, S1 with sciatic nerve involvement, resulting in a 50 percent rating when combined with the current 40 percent schedular rating, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321 (b)(1), 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1977 to March 1981, and from July 1981 to July 1997. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record on appeal In February 2019, the Board remanded the matter for further evidentiary development. 1. Right Elbow At the Veteran's October 2018 Board hearing, the Veteran clarified that his claim for entitlement to service connection for right elbow was for a scar due to a laceration which occurred in service. While in remand status, in a December 2020 rating decision, the RO granted entitlement to service connection for right elbow scar and assigned a noncompensable rating effective September 24, 2010. The record contains no indication that the Veteran initiated an appeal with the initial rating or effective date assigned for right elbow scar. Based on the foregoing, there is no specific determination with which the Veteran disagrees with regard to this claim and therefore, the claim must be dismissed. 38 U.S.C. § 7105(d). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in the active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A diagnosis is not required to meet the current disability requirement and pain alone can constitute disability if it causes impairment in earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). 2. Right Ankle For the following reasons, the Board finds that service connection for right ankle disability is warranted. In this case, the Veteran has met the current disability requirement. Specifically, an October 2018 private Disability Benefits Questionnaire (DBQ) reflects diagnosis of right ankle osteoarthritis. An October 2018 private clinical record shows diagnosis of chronic pain of right foot. Thus, the first element for service connection has been met. The evidence of record indicates that the in-service injury requirement has been met. Service treatment records (STRs) shows multiple complaints and treatment in September 1985 for right ankle twisting injury from a football game. At his May 1997 separation examination, he reported right ankle injury. At his October 2018 Board hearing, the Veteran testified that the onset of his right ankle condition was during service, and he has continued to experience right ankle symptoms since service. Thus, the Board finds that the second element of service connection has been met. In October 2019, the Veteran was afforded a VA examination. The examiner opined that the Veteran's right ankle condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that although there is a record of evaluation for right ankle twisting injury in service, there is no permanent residual or chronic disability condition subject to service connection is shown by the STRs or any medical records post military. The examiner further explained that the Veteran has not sought medical care for a right ankle condition in the last 22 years since leaving the military. The examiner concluded that there is no current right ankle condition which can be contributed to the Veteran's military service. In a December 2020 VA addendum opinion, the October 2019 VA examiner reiterated that the Veteran's right ankle condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that although there is a record of evaluation for right ankle twisting injury in service, there is no permanent residual or chronic disability condition subject to service connection is shown by the STRs or any medical records post military. The examiner further explained that the Veteran has not sought medical care for a right ankle condition in the last 22 years since leaving the military. The Board finds that the October 2019 and December 2020 VA opinions that the Veteran's right ankle condition is not related to service is of no probative value, as it was based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Specifically, the VA examiner incorrectly stated that the Veteran had not sought medical care for a right ankle condition in the last 22 years since leaving the military. However, the evidence of record includes an October 2018 private clinical record indicating treatment for right ankle. Additionally, the evidence of record includes an October 2018 private DBQ indicating treatment of right ankle. Moreover, the VA examiner failed to consider the Veteran's competent and credible statements of the onset of right ankle symptoms in service, and the continuation of symptoms in the years since service. At this point, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). The current diagnosis, STRs, the Veteran's competent and credible lay statements of right ankle symptoms in and since service, are sufficient to establish that the Veteran's right ankle disability is related to service. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself). For the reasons set forth above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's right ankle disability is related service. Thus, resolving reasonable doubt in the Veteran's favor, service connection is warranted for right ankle disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Right Foot In this case, the Veteran has met the current disability requirement. Specifically, a November 2015 private treatment record shows complaint and treatment for right foot pain. An October 2018 private clinical record shows diagnosis of pain in joints of right foot. At his October 2018 Board hearing, the Veteran testified that his right foot pain occurred from an in-service car accident, and he continued to experience right foot pain since the car accident. He asserted that right foot pain impairs his earning capacity. The Veteran's lay statements reflect that there is impairment of the right foot that causes impairment in earning capacity. Consequently, the first element of service connection has been met. The evidence of record indicates that the in-service injury requirement has been met. At the Veteran's May 1997 separation examination, he reported having foot trouble. He noted right foot pain from motor vehicle accident in 1983, with current symptoms of pain, and aching with stinging sensation. Thus, the Board finds that the second element of service connection has been met. In October 2019, the Veteran was afforded a VA examination. The examiner opined that the Veteran's right foot condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that although there is a record of right foot pain on separation exam, there is no permanent residual or chronic disability condition subject to service connection is shown by the STRs or any medical records post military service. The examiner noted the physical examination she performed was normal. In a December 2020 VA addendum opinion, the October 2019 VA examiner reiterated that the Veteran's right foot condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that although there is a record of right foot pain on separation exam, there is no permanent residual or chronic disability condition subject to service connection is shown by the STRs or any medical records post military. The examiner noted that the physical exam she performed was normal. The Board finds that the October 2019 and December 2020 VA opinions that the Veteran's right foot condition is not related to service is of no probative value, as it was based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Specifically, the VA examiner incorrectly stated that the Veteran had not sought medical care for a right foot condition in the last 22 years since leaving the military. However, the evidence of record includes an October 2018 private clinical record indicating treatment for right foot. Moreover, the VA examiner failed to consider the Veteran's competent and credible statements of the onset of right foot symptoms in service, and the continuation of symptoms in the years since service. At this point, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews, 34 Vet. App. at 225. The current diagnosis, STRs, the Veteran's competent and credible lay statements of right foot symptoms in and since service, are sufficient to establish that the Veteran's right foot disability is related to service. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself). For the reasons set forth above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's right foot disability is related service. Thus, resolving reasonable doubt in the Veteran's favor, service connection is warranted for right foot disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Extraschedular rating for low back strain, chronic with facet arthritis L5, S1 with sciatic nerve involvement The Veteran is currently in receipt of a 40 percent rating for his low back disability (Diagnostic Code 5237) and seeks a rating in excess of 40 percent on an extraschedular basis for the entire period on appeal. VA's schedule of disability ratings is based on average impairment in earning capacity in civil occupations resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 3.321 (a) According to 38 C.F.R. § 3.321 (b)(1) ratings shall be based, as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, the Director is authorized to approve on the basis of the criteria set forth in this paragraph (b), an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. The governing norm in these exceptional cases is a finding by the Director that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. The Veteran contends that his ow back strain, chronic with facet arthritis L5, S1 with sciatic nerve involvement affects his ability to perform his job duties. He reports sleep disruption due to low back pain and missing work due to his lower back disability. These are symptoms not contemplated by the criteria, and the medical and lay evidence raise the possibility that they interfere with employment. When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the AOJ for referral to the Director. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In light of the Veteran's contentions, the matter was referred to the Director for an opinion on whether a compensable rating could be assigned on an extraschedular basis under 38 C.F.R. § 3.321 (b). In December 2020 Advisory Opinion, the Director denied an extraschedular rating. The Board is not bound by the Director's decision and it is not considered evidence. See Kuppamala v. McDonald, 27 Vet. App. 233, 236 (2015). The Board will thus decide this issue de novo, keeping in mind the guidance of the Court that, because the nature of extraschedular consideration requires that the disability picture be unique and not contemplated by the rating schedule, there logically is no guidance as to the specific rating that should be assigned in any particular case. Kuppamala, 27 Vet. App. at 443, n. 7. For the following reasons, an extraschedular rating of 10 percent, in addition to the current schedular 40 percent rating, for low back disability is warranted. In this case, although various examinations of record have not shown the Veteran to meet the schedular criteria beyond a 40 percent rating, however, it is clear that the Veteran's low back disability is not adequately depicted by the schedular rating criteria under, and his low back disability has interfered with his employment. Specifically, at the Veteran's October 2018 Board hearing, he testified that he gets three days off from work a month under the Family Medical Leave Act (FMLA) for his service-connected low back disability. He indicated that he occasionally uses his annual leave if his back symptoms are persisting. The Veteran reported that he was unable to perform his daily activities. He noted that he has gone to the hospital a couple of times for his back disability and was given a couple of shots. The Veteran further noted that he experiences sleep disruption due to his service connected back pain. The above evidence reflects that there is interference with employment to a degree beyond that which is contemplated by the schedular rating of 40 percent, i.e., marked interference with employment. See 38 C.F.R. § 4.1 (Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability'). Thus, this is an exceptional case where the criteria in VA's Rating Schedule are inadequate, and an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service connected disability is warranted. 38 C.F.R. § 3.321 (b)(1). However, a disability rating higher than 50 percent on an extraschedular basis for low back disability is not warranted. For example, the October 2018 private DBQ, along with the November 2010 and September 2020 VA examination reports, indicates no evidence of ankylosis of the entire spine. Based on the foregoing, the Board finds that an extraschedular evaluation is warranted. The additional symptoms cause marked impairment in employment and are sufficient to warrant an additional 10 percent, but no more, for the Veteran's low back disability. Thus, a 50 percent rating, 40 percent schedular and 10 percent extraschedular, is warranted. To this extent, the appeal is granted. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.