Citation Nr: 21073751 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 15-06 520A DATE: December 10, 2021 ORDER A rating higher than 30 percent for bilateral pes planus is denied. A rating higher than 10 percent for degenerative disc disease of the lumbar spine is denied. A compensable rating for beta thalassemia minor (BTM) is denied. Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. Service connection for a right ankle disability is denied. Service connection for a left shoulder disability is denied. Service connection for a right shoulder disability is denied. REMANDED Service connection for a skin disorder is remanded. Service connection for a left ankle disability is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's bilateral pes planus does not show marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 2. The Veteran's lumbar spine disability showed forward flexion at worst to 90 degrees and extension at worst to 30 degrees; muscle spasm or guarding was not found. 3. The Veteran's BTM is asymptomatic and does not require infusions or oral medication. 4. The evidence of record does not indicate that the Veteran has a diagnosed disability of his bilateral knees, right ankle, or bilateral shoulders nor has one been diagnosed during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 30 percent for bilateral pes planus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5276. 2. The criteria for a rating higher than 10 percent for degenerative disc disease of the lumbar spine are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5242-5243. 3. The criteria for a compensable rating for BTM are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.117, Diagnostic Codes 7700 (2017), 7720 (2018). 4. The criteria for service connection for disabilities of the bilateral knees, right ankle, or bilateral shoulders, including as due to an undiagnosed illness, are not met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2001 to April 2004, with service in Southwest Asia. He is the recipient of the Iraq Campaign Medal. The Veteran testified at a hearing before a Veterans' Law Judge in November 2017. A copy of the transcript is of record. In March 2018, the Veteran was notified that the Veterans Law Judge (VLJ) who conducted his hearing is no longer with the Board. The Veteran was provided the opportunity to appear for another Board hearing but declined to do so. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Bilateral Pes Planus The Veteran's bilateral pes planus is assigned a 30 percent rating under DC 5276. The only higher rating available is that of a 50 percent rating for pronounced bilateral flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon Achilles' on manipulation, not improved by orthopedic shoes or appliances. There are no records of evidence which indicate that the Veteran meets the criteria for a rating higher than 30 percent. A 2021 VA examination was conducted and none of the requisite criteria for a 50 percent rating were found present. There are no other medical records of evidence which address the criteria for rating the Veteran's bilateral pes planus. Though the Veteran's VA records document the Veteran's complaints of foot pain, there is no indication that his pain was attributed to his pes planus or that any of the criteria necessary for a rating higher than 30 percent were present. Additionally, neither the Veteran nor his representative have identified or introduced any evidence in the record which supports a rating higher than 30 percent for bilateral pes planus. The Board has considered the Veteran's lay statements, including his 2017 hearing testimony. While the Veteran is competent to report his symptoms, whether a disability meets the schedular criteria for the assignment of an evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Here, although the Veteran may believe that he meets the criteria for a higher rating, the medical findings show that he does not meet the schedular requirements for a rating higher than 30 percent, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lumbar Spine The Veteran's lumbar spine disability is assigned a 10 percent rating pursuant to DCs 5242-5243. The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from that date. The new regulations do not amend DC 5242. The regulations amended DC 5243 regarding IVDS and state that the DC will be assigned when "there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." The rating criteria are then based on the number of incapacitating episodes which had occurred in the 12 months prior. Prior to the revisions, DC 5243 based its ratings on the number of incapacitating episodes which had occurred in the 12 months prior. A review of the Veteran's 2021 VA examination report and his VA medical records indicate that he has IVDS. However, there is no indication of disc herniation with compression and/or irritation of the adjacent nerve root. Additionally, the records do not establish that the Veteran had any incapacitating episodes. As such, neither the provisions of DC 5243 prior to February 7, 2021, nor after are applicable to the Veteran's request for a higher rating. DC 5243 mandates that 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, reversed lordosis, or abnormal kyphosis. 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. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, 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; 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; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always considered favorable ankylosis." When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). 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; 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) ("[I]t is clear that the guidance of §4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In regard to the Veteran's lumbar spine, there are no medical records of evidence which support a rating higher than 10 percent. In his 2021 VA examination, the Veteran denied flare-ups and functional loss. His range of motion was found to be flexion to 90 degrees and extension to 30 degrees. He had no decrease in that range of motion with movement or repeated use over time. Muscle spasm or guarding was not found. There are no other records of evidence which address the specific rating criteria applicable to the Veteran's lumbar spine. The Veteran and his representative have not identified any evidence which supports a rating higher than 10 percent. The Board has again considered the lay statements of evidence and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). BTM During the appeal period, the regulations governing the hemic and lymphatic systems, including the criteria for rating anemia, were revised. See 83 Fed. Reg. 54254 (Oct. 29, 2018) (effective Dec. 9, 2018). As state above, claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from that date. DC 7700 mandated that a 10 percent rating was warranted when anemia produced hemoglobin of 10gm/100ml or less with findings such as weakness, easy fatigability, or headaches. A 30 percent rating required evidence of hemoglobin of 8gm/100ml or less with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. DC 7720 mandates that a 10 percent rating is assigned for iron deficiency anemia requiring intravenous iron infusions at least 1 time but less than 4 times per 12-month period, or requiring continuous treatment with oral supplementation, and a 30 percent rating is warranted for iron deficiency anemia requiring intravenous iron infusions 4 or more times per 12-month period. A 30 percent rating requires evidence of intravenous iron infusions 4 or more times per 12-month period. The evidence of record does not show that the Veteran has met the criteria for a compensable rating at any time during the period of appeal under either DC. His records show his hemoglobin was generally in the 11.0 range and there is no evidence of any infusions at any time. See VA February 2013, April 2014, March 2015, September 2017, December 2017, December 2018, and September 2021 medical records. A 2021 VA examination did not find that the Veteran met any of the criteria for a compensable rating. There are no other records of evidence which address the specific rating criteria applicable to the Veteran's BTM. The Veteran and his representative have not identified any evidence which supports a compensable rating. The Board has again considered the lay statements of evidence and considered the Veteran's report of fatigue contained in his VA medical records. However, the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability and established that the Veteran did not meet the criteria for a compensable rating. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. 38 C.F.R. § 3.303 (b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Bilateral Knees The Veteran's STRs do not contain any treatment for either of his knees and also do not show diagnosis of any knee condition in either knee. As stated in the Board's 2020 Remand, the record shows that the Veteran's VA treatment records document the Veteran reported he had a history of bilateral knee tendonitis. See May and August 2005 VA medical records. The Veteran's VA medical records do show that he reported knee pain. See September 2005 VA medical record. However, the record does not contain a diagnosis of a knee disorder. An October 2005 VA examination found the Veteran's bilateral knees normal and there was no diagnosis of tendonitis. A 2013 VA examination did not identify any knee pathology or diagnose a knee disability. Similarly, a 2021 VA examination did not find any pathology regarding the Veteran's bilateral knees and no diagnosis of any disorder was made. Additionally, the Veteran denied flare-ups or any functional loss. See September 2021 VA examination. The Board concludes that the Veteran does not have a current diagnosis of a disability of either knee and has not had one at any time during the pendency of the claims or recent to the filing of the claims. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). It appears the Veteran reported a history of knee tendonitis without any supporting diagnosis of such a disability in either knee. Simply put, there is no evidence of record which showed that the Veteran has a diagnosed disorder or disability of either knee. Indeed, VA medical examinations conducted in 2005 and 2021 specifically found that the Veteran did not have a diagnosis of a disability in either knee. While the Board recognizes that pain alone can constitute a disability for VA purposes when such pain amounts to functional impairment of earning capacity, the 2021 VA examination clearly documented that the Veteran denied any functional loss of his knees which amounts to an independent functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Board acknowledges the Veteran's statements regarding his pain. However, while the Veteran believes he has a knee disability, he has not been shown to be competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377, n.4 (Fed. Cir. 2007). The Board gives more probative weight to the competent medical evidence which includes medical records and VA examination reports which show no diagnosis of a disability or disorder of either of the Veteran's knees. Therefore, the preponderance of the evidence is against the granting of service connection for a bilateral knee disability. Right ankle Bilateral Shoulders As with the Veteran's knees, the Veteran's STRs are silent for complaint, treatment, or diagnosis of any disorder of his right ankle. A November 2003 STR indicated the Veteran had shoulder pain and a rotator cuff injury. His VA medical records also do not show diagnosis of any disorder of his right ankle or his bilateral shoulders. The Veteran's October 2005 VA examination did not identify a disorder or disability of the Veteran's right ankle. The Veteran stated that he did not have much pain in his right ankle and that it really did not bother him. His X-ray and examination were normal. A 2021 VA examination also did not diagnose any disability of his right ankle or bilateral shoulders. The Veteran denied flare-ups or any functional loss associated with his right ankle or bilateral shoulders. There are no records which indicate the Veteran has treated for any disability or condition of his right ankle or his bilateral shoulders. The Board concludes that the Veteran does not have a current diagnosis of a right ankle or bilateral shoulder disorder and has not had one at any time during the pendency of the claims or recent to the filing of the claims. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Board recognizes that pain alone can constitute a disability for VA purposes when such pain amounts to functional impairment of earning capacity, the 2021 VA examination clearly documented that the Veteran denied any pain or functional loss of his right ankle or bilateral shoulders which amount to an independent functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Board acknowledges the Veteran's statements regarding his pain. However, while the Veteran believes he has a right ankle or bilateral shoulder disability, he has not been shown to be competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377, n.4 (Fed. Cir. 2007). The Board gives more probative weight to the competent medical evidence which includes medical records and VA examination reports which show no diagnosis of a disability or disorder of either the Veteran's right ankle or his bilateral shoulders. Therefore, the preponderance of the evidence is against the granting of service connection for a a right ankle or bilateral shoulder disability. REASONS FOR REMAND Skin Left Ankle As to the Veteran's claim for a skin condition, the Board's prior remand reported that the Veteran had multiple diagnoses of skin disorders throughout the pendency of his appeal. The September 2021 examiner did not address if these diagnoses were related to the Veteran's active duty service. As such, a new examination opinion is warranted. As to the Veteran's left ankle, the medical records show that the Veteran was diagnosed with left ankle strain in an October 2005 VA examination. An X-ray indicated the Veteran had mild degenerative changes at his tibiotalar joint space. However, there is no evidence which indicated the Veteran had continuity of care such to support a diagnosis of service connection. The September 2021 VA examination did not address this evidence of record in regard to the Veteran's left ankle. As such, the Board finds that the examination is inadequate for adjudication purposes. TDIU The Board notes that the Veteran has not submitted an appropriate TDIU application form. As such, remand is necessary to obtain the appropriate form. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from a dermatologist as to the etiology of any diagnosed skin disorder during the pendency of the Veteran's claim, including folliculitis and seborrheic dermatitis. The claims file should be made available to the examiner for review. Should the examiner find that an in-person examination is necessary, one should be scheduled accordingly. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any skin disorder diagnosed during the pendency of the Veteran's appeal was incurred in, or due to, the Veteran's active duty service. The Veteran's lay statements regarding onset and continuity of symptomology should be recorded and considered. A rationale for all opinions must be provided. 2. Schedule the Veteran for a VA examination with a physician (M.D.) regarding the etiology of any diagnosed left ankle disorder during the pendency of the Veteran's claim. The claims file should be made available to the examiner for review. Diagnostic tests should be obtained. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any left ankle disorder diagnosed during the pendency of the Veteran's appeal was incurred in, or due to, the Veteran's active duty service. The examiner is asked to specifically address the October 2005 VA examination wherein the Veteran was diagnosed with left ankle strain and underwent an X-ray of his left ankle. The Veteran's lay statements regarding onset and continuity of symptomology should be recorded and considered. A rationale for all opinions must be provided. 3. Provide the Veteran and his representative with all necessary notices and forms for substantiating the claim for a TDIU, including VA Form 21-8940. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish 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.