Citation Nr: 21072627 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-05 734 DATE: December 3, 2021 ORDER Entitlement to service connection for bronchitis is granted. Entitlement to service connection for a heart disability is denied. Entitlement to an increased rating of 20 percent, but no higher, for right ankle degenerative joint disease is granted. Entitlement to a compensable rating for a bilateral hearing loss disability is denied. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to an evaluation in excess of 20 percent for coccydynia with lumbosacral strain is remanded. FINDINGS OF FACT 1. The Veteran's chronic bronchitis was incurred during service. 2. The Veteran does not have a heart disability. 3. The Veteran's right ankle degenerative joint disease manifests in functional impairment equivalent to marked limitation of motion. 4. The Veteran's hearing acuity showed at worst Level II impairment in the right ear and Level III impairment in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bronchitis have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2021). 2. The criteria for entitlement to service connection for a heart disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2021). 3. The criteria for entitlement to an increased rating of 20 percent, but no higher, for right ankle degenerative joint disease have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5271 (2021). 4. The criteria for entitlement to a compensable rating for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Code 6100, 4.86 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to September 1992, with service in Saudi Arabia during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2015, May 2015, and July 2016 rating decisions by the Department of Veterans Affairs (VA). This case was remanded in May 2020 for further development. In November 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. After the Board's remand, the issues of service connection for sleep apnea, an acquired psychiatric disorder, a right hip disability, and varicose veins were granted in a June 2021 rating decision. Because that decision represents a full grant of the benefits sought, those issues are no longer on appeal. The Board notes that the Agency of Original Jurisdiction (AOJ) inexplicably added the issue of entitlement to service connection for right lower radiculopathy as an issue on appeal in a July 2021 supplemental statement of the case (SSOC). This issue has never been adjudicated in any other rating decision or a statement of the case (SOC). However, the Board surmises that the AOJ raised the issue in connection with the appeal related to the Veteran's coccydynia with lumbosacral strain, because VA must consider whether there are any neurological abnormalities associated with that disability. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Because the Board must already consider whether the Veteran has right lower extremity radiculopathy and it has never been an issue on appeal, the Board has not added it as an issue on appeal. Service connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In the absence of a current diagnosed disability, service connection cannot be granted for such disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Pain with functional impairment can be considered a disability for VA purposes. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for a lung disability. Service treatment records (STRs) reflect repeated reports of coughing up a dark green thick phlegm. See, e.g., April 1990 STRs. After he returned, he was diagnosed with bronchitis and an upper respiratory infection. See July 1991 STRs. It was also noted that the Veteran was a smoker. See October 1991 STRs. During a March 2014 VA examination, the Veteran was diagnosed with bronchitis. The examiner opined it was less likely than not that the Veteran's condition was related to his service, stating that bronchitis has a clear and specific etiology and peer-reviewed medical journals do not establish a causal relationship between bronchitis and exposure events experienced by soldiers in Southwest Asia. This opinion is inadequate because it does not discuss STRs reflecting a diagnosis of bronchitis during service. Because the opinion is inadequate, it is given no probative weight. In February 2020, a private physician diagnosed bronchitis and opined it was more likely than not that the Veteran's disability was related to service. The physician discussed the Veteran's reports of a sore throat in STRs, along with episodes of bronchitis with coughing up and bringing up phlegm. By the time the Veteran came back from his deployment, he was having much more of a cough and more phlegm. The examiner opined the disability first began in service and that he had not been smoking long enough to develop the acute bronchitis that he was having. The Board finds the February 2020 private medical opinion to be adequate for appellate review. The physician relied on examination of the Veteran and a review of the file, and he provided a full and detailed rationale that included discussion of the Veteran's diagnosed disability of record and STRs. As a result, the opinion is given significant probative weight. While there are other medical opinions of record, they do not relate to the Veteran's bronchitis. Thus, the probative evidence of record reflects that the Veteran's bronchitis was incurred during service, and service connection is warranted. 2. Entitlement to service connection for a heart disability. The Veteran reported heart palpitations since service, but denied current chest pain, dyspnea, dizziness, syncope, and fatigue. See, e.g., May 2015 VA examination. A private physician diagnosed supraventricular tachycardia in February 2020. While the physician reported that he examined the Veteran and reviewed significant medical records, including a VA heart examination, there is no explanation for this diagnosis. There is no indication of any diagnostic tests being completed other than an examination of the Veteran, where his chest was clear to auscultation bilaterally. The Veteran underwent two VA heart examinations, wherein both examiners opined that the Veteran does not have a heart disability. A May 2015 VA examiner opined that the Veteran did not have a heart condition related to his palpitations as evidenced by a normal electrocardiogram (EKG) and chest x-ray undergone in March 2015, as well as physical examination during the examination. Then, after undergoing another EKG, chest x-ray, and echocardiogram in December 2020, a December 2020 VA examiner opined that the Veteran did not have a heart disability and there were no signs or symptoms to support a diagnosis, including supraventricular tachycardia. The Board finds both VA examinations adequate for appellate review to determine whether the Veteran has a heart disability. The Veteran underwent diagnostic testing, and the examiners based the lack of the diagnosis on such testing and examination. Their opinions that the Veteran does not have a disability are also supported by the medical treatment records in the claim file, which rarelyif at allreflect heart symptoms associated with functional impairment, let alone a diagnosed heart disability. As a result, the examinations are assigned significant probative weight. The Board finds that the February 2020 private diagnosis is far outweighed by the VA opinions that are supported and explained by diagnostic testing. The Board is not relying on the absence of evidence in treatment records but rather that the VA examiners' opinions are supported by private and VA treatment records that reflect littleif anyevidence of a heart condition, and for which the Board assigns the opinions additional probative weight. The Board notes that the Veteran submitted medical articles that discuss tachycardia. These articles are given little probative weight as they do not discuss whether the Veteran has tachycardia. The articles, including when considered with the February 2020 private diagnosis, are far outweighed by the May 2015 and December 2020 VA examinations. The Board assigns significant probative weight to the Veteran's report that he does not have chest pain. See May 2015 VA examination. Although he reported that his condition began in 1992 with chest pain, see December 2020 VA examination, such report is not an indication of current pain, but is rather a report of chest pain far in advance of the current appeal period. VA and private treatment records do not reflect any consistent reports of chest pain or functional impairment associated with his reported palpitations, which supports his statement. After considering the Veteran's statement, the Board finds that a preponderance of the evidence reflects that the Veteran does not have pain or functional impairment associated with his heart palpitations. Because the preponderance of the evidence reflects that the Veteran does not have a diagnosed heart disability or pain with functional impairment associated with his reported palpitations, the Veteran does not have a current heart disability for VA purposes and the issue must be denied. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 3. Entitlement to an increased rating in excess of 10 percent for right ankle degenerative joint disease. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, there must be consideration of functional loss caused by factors that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) ("functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor...that actually limited motion" (emphasis removed)). 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. § 4.71a (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). The provisions of 38 C.F.R. § 4.59 acknowledge that a claimant's disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Code. Pain alone does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Pain in, like deformity of or insufficient nerve supply to, a particular joint 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 and endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 38-39 (2011). Standard motion for ankle dorsiflexion is from zero degrees to 20 degrees and 45 degrees to zero degrees for ankle plantar flexion. 38 C.F.R. § 4.71, Plate II. The Veteran's right ankle degenerative joint disease is rated under 38 C.F.R. § 4.71a, Code 5271, for limitation of motion of the ankle. Under Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle and a 20 percent rating is warranted for marked limited motion of the ankle. Id. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked. Effective February 7, 2021, VA amended the rating criteria for Code 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria and, should an increased rating be warranted under revised criteria, that award may not be made effective before the effective date of the change. However, the Veteran is being awarded the maximum rating for Code 5271 pursuant to the old criteria and he cannot obtain a higher rating pursuant to that Code under the new criteria. Thus, the new criteria will not be further discussed. The Board notes that the VA examinations of record are not compliant with Correia v. McDonald, 28 Vet. App. 158 (2016). However, the Board is assigning the Veteran's right ankle disability the maximum rating based on limited motion. Thus, obtaining new range of motion measurements will not substantiate the claim, and remand is unnecessary. See 38 C.F.R. § 3.159(d). During a December 2014 VA examination, the Veteran reported that his right ankle disability was worse, with increased pain and swelling. The examiner noted that pain began at zero degrees from both plantar flexion and dorsiflexion. During a December 2020 VA examination, the Veteran reported that flare-ups occurred two to four times a week, would last all day, and were moderate to severe. They were precipitated by walking on certain surfaces. The examiner opined that range of motion after repetitive use over time and during flare-ups was limited to five degrees dorsiflexion and 20 degrees plantar flexion. After considering the range of motion measurements during the December 2020 VA examination, the Veteran's right ankle disability clearly manifested in marked loss of range of motion. Although his range of motion during the December 2014 examination was not as severe, the Board finds that his pain starting at zero degrees resulted in functional impairment equivalent to marked loss of range of motion, as it impacted his ability to walk long distances. See November 2019 Board hearing. Thus, a rating of 20 percent is warranted. Code 5271 does not provide for a rating in excess of 20 percent under either the old or new criteria. Code 5270 provides ratings for ankylosis of the ankle. The Veteran does not have ankylosis of his ankle nor functional impairment equivalent to ankylosis, despite having pain noted at zero degrees. His pain did not effectively limit his ability to perform the normal working movements of his ankle with normal excursion, strength, speed, coordination and endurance such that he was unable to move his ankle at all. The evidence reflects that he has been able to walk at least short distances using his right ankle, see November 2019 Board hearing, and is able to functionally move his ankle, resulting in a finding that he did not have the functional equivalent of an inability to move his ankle. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-39 (2011). Moreover, Code 5270 requires a finding of where his motionless ankle would be stuck, but, as just discussed, the Veteran is able to move his ankle despite his pain such that is able to walk on it for at least short distances. As a result, rating pursuant to Code 5270 is not appropriate and the Veteran is properly rated pursuant to Code 5271. 4. Entitlement to a compensable rating for a bilateral hearing loss disability. Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of a controlled speech discrimination test (Maryland CNC test) in combination with the Veteran's average puretone thresholds. The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIa of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIa is employed when the use of speech discrimination tests is inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000) is 55 decibels or more. 38 C.F.R. § 4.86(a). Another pattern occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(b). In addition to dictating objective test results, a VA examination must provide the functional effects caused by a hearing disability. However, even if an examiner's description of the functional effects of a veteran's hearing disability was somehow defective, the veteran bears the burden of proving any prejudice caused by a deficiency in the examination. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran filed his claim for this matter in December 2014. See Report of General Information. During his December 2014 VA audio examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 20 25 40 65 37.5 LEFT 25 30 50 80 46.25 Speech audiometry revealed speech recognition ability of 84 percent for the right ear and 80 percent in the left ear. The Veteran reported that he had to ask people to repeat themselves and had difficulty hearing in background noise and over the telephone. See December 2014 examination. During his November 2019 Board hearing, the Veteran testified that he was wearing hearing aids and that his wife would scold him when he had difficulty hearing. During the Veteran's November 2020 VA audio examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 25 30 65 65 46.25 LEFT 25 35 65 70 48.75 Speech audiometry revealed speech recognition ability of 88 percent for the right ear and 86 percent in the left ear. He reported that he had difficulty hearing. See November 2020 VA examination. Using the audiometry conducted in accordance with regulatory criteria, hearing acuity showed at worst Level II impairment in the right ear and Level III impairment in the left ear. Additionally, the audiometry results do not reflect any exceptional patterns of hearing impairment that would warrant evaluation using Table VIa. The hearing acuity shown from these audiometry results is equivalent to a noncompensable rating under Table VII. The Board acknowledges that the Veteran has difficulty hearing and is wearing VA-issued hearing aids. However, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The probative medical evidence does not show the Veteran's service-connected hearing loss disability has ever warranted a compensable rating during the appeal period. As a result, entitlement to a compensable rating for a bilateral hearing loss disability must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability. STRs reflect that the Veteran fell during service. After the fall, he reported lower back pain but did not report neck pain. See June 1983 STRs. Additionally, STRs reflect that the Veteran injured his right hip and right shoulder in a fall, but he also did not report neck symptoms. See January 1988 STRs. However, the Veteran asserts that he was treated for his neck during service at the time of his right shoulder injury, see April 2014 correspondence, and when he hurt his tailbone. See December 2020 VA examination. During a December 2020 VA examination, the Veteran was diagnosed with degenerative arthritis of the cervical spine. The examiner opined it was less likely than not that the Veteran's condition was related to service, but the examiner relied merely on the absence of evidence in STRs. As a result, the opinion is inadequate. In May 2021, a VA examiner also opined it was less likely than not that the Veteran's condition was related to service. However, the examiner also relied on the absence of evidence in STRs, without considering the Veteran's lay reports. As a result, the opinion is inadequate. The Veteran submitted a September 2014 letter from his private physician. While the physician discusses that the Veteran has neck pain, there is no opinion regarding whether the Veteran's condition is related to his service. As a result, it is not considered a medical opinion regarding the cause of the Veteran's condition. Because there are no adequate opinions of record, remand for a new opinion is necessary. 2. Entitlement to an evaluation in excess of 20 percent for coccydynia with lumbosacral strain. VA examinations must include joint testing on both active and passive motion in both weight-bearing and non-weight-bearing circumstances, to include for the opposite, undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the VA spine examinations of record do not fully comport with the requirements of Correia. See May 2015 and December 2020 VA examinations. Thus, remand for a new VA spine examination is necessary. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from June 2021 to the present. 2. After the above development is completed, the AOJ should arrange for a VA medical opinion, with examination of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of the Veteran's cervical spine degenerative arthritis. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: Is it at least as likely as not (50% or greater probability) that the Veteran's cervical spine degenerative arthritis was either incurred in or otherwise related to his military service? Please explain why. The examiner should discuss the Veteran's lay reports of an injury during service. The examiner may not rely merely on the absence of evidence in medical records without providing a foundation as to why the Veteran would have been expected to report his injury during service. 3. After the development in the first directive is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected coccydynia with lumbosacral strain. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.