Citation Nr: 21075318
Decision Date: 12/20/21	Archive Date: 12/20/21

DOCKET NO. 18-18 938A
DATE: December 20, 2021

ORDER

Entitlement to a disability rating in excess of 10 percent for residuals of a stress fracture of the left tibia is denied.

Entitlement to a disability rating in excess of 10 percent for residuals of a stress fracture of the right tibia is denied.

Entitlement to service connection for a left knee disability is denied.

Entitlement to service connection for a right knee disability is denied.

Entitlement to service connection for human papillomavirus (HPV) and cervical dysplasia is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) is granted.

 

FINDINGS OF FACT

1. The most probative evidence of record shows that, during the pendency of this appeal, the residuals of the Veteran's left and right tibia stress fractures are pain and consequent discomfort commensurate with what amounts to slight disability.

2. The most probative evidence of record shows that her left and right knee disabilities are unrelated to her service or to her service-connected disabilities, either by causation or aggravation.

3. HPV and cervical dysplasia in service, alone, do not constitute a ratable disability for which VA compensation may be awarded, and there is no probative evidence or allegation of any current underlying disability or chronic residuals etiologically related to the HPV or cervical dysplasia and owing to the Veteran's service.

4. However, it is at least as likely as not that she is unable to obtain and maintain substantially gainful employment because of her service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria are not met for entitlement to ratings higher than 10 percent for the residuals of the stress fractures of the left and right tibias. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5262.

2. The criteria are not met for entitlement to service connection for left and right knee disabilities. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria are not met for entitlement to service connection for HPV and cervical dysplasia. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. But, when resolving all reasonable doubt in the Veteran's favor, the criteria are met for her entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 2006 to March 2011.

This appeal to the Board of Veterans' Appeals (Board) is from a November 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In a July 2019 decision, the Board, in part, granted compensable (10 percent) ratings for residuals of stress fractures of the left and right tibias but conversely denied service connection for left and right knee disabilities and for HPV and cervical dysplasia. The Board further determined that consideration of a TDIU claim under Rice v. Shinseki, 22 Vet. App. 447 (2009) was not warranted since the Veteran had not claimed that she was unemployable because of service-connected disabilities and since her symptoms and their consequent functional impact were contemplated by the ratings assigned for them.

The Veteran appealed to the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In June 2020, the Court granted a Joint Motion for Partial Remand (JMPR)  partly vacating the Board's decision and remanding the claims resultantly impacted back to the Board for further development and readjudication pursuant to directives and agreement in the JMPR.

To this end, in November 2020, the Board in turn remanded these claims back to the RO (Agency of Original Jurisdiction (AOJ)) to obtain all outstanding treatment records relevant to these claims and then for medical examinations reassessing the severity of the Veteran's left and right tibia stress fractures and for opinions concerning the etiology of her additionally claimed left and right knee disabilities  especially in terms of whether related or attributable to her military service or to the already determined to be service-connected disabilities affecting her lower extremities, such as from overcompensating for them or when considering their effect on her gait.  

 

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt as to the degree of disability is resolved in the Veteran's favor.  38 C.F.R. § 4.3.  

"Staged" ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal, irrespective of whether an initial or established rating.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999) (initial rating); Hart v. Mansfield, 21 Vet. App. 505 (2007) (established rating).

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14.

 

1. Entitlement to a disability rating in excess of 10 percent for residuals of a stress fracture of the left tibia

2. Entitlement to a disability rating in excess of 10 percent for residuals of a stress fracture of the right tibia

The Veteran contends that she is entitled to even higher ratings for the residuals of these stress fractures of her tibias. As already mentioned, in the prior July 2019 decision, the Board granted these higher 10 percent ratings, so compensable ratings, but declined to assign any greater ratings. An increase in rating, however, does not abrogate a pending appeal unless the Veteran receives the highest possible rating or expresses satisfaction or contentment with the new rating.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993).

These stress fracture residuals have been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5262, for impairment of the tibia and fibula. 

According to Diagnostic Code 5262, malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating. Malunion of the tibia and fibula with moderate knee or ankle disability warrants a 20 percent rating. Malunion of the tibia and fibula with marked knee or ankle disability warrants a 30 percent rating. Nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5262.

Normal range of motion of the ankle is from 0 to 20 degrees of dorsiflexion and from 0 to 45 degrees of plantar flexion. See 38 C.F.R. § 4.71, Plate II.

Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. Id. 

Turning now to the relevant evidence, VA treatment records throughout the period on appeal reveal complaints of pain in the knees and ankles. However, the records do not reflect any diagnosis of a knee or ankle disability. Imaging of the ankles and knees in 2013 and 2014 essentially was unremarkable since within normal limits.

 

On VA examination in March 2013, the Veteran reported onset of knee and ankle problems, including pain and swelling, in 2007 associated with running during her service. Testing revealed bilateral stress fractures. The condition reportedly remained symptomatic and was triggered by exercise. But examination revealed full range of motion of both knees and ankles with no objective evidence of painful motion, including resulting in lesser motion (limitation of motion). There also was no additional loss of motion or function after repetitive use. As well, there was no tenderness on palpation of the ankle or knee joints. Reflexes throughout the lower extremities were normal. X-rays were negative for stress fracture of the right or left tibia or arthritis. There was no evidence of subluxation of either knee. There was no evidence of ankle or knee instability. There was no ankylosis of the joint. The examiner noted a diagnosis of bilateral chronic stress fractures/shin splints. Concerning the Veteran's ankle complaints, the examiner found no objective findings specific to either ankle; instead, the examiner attributed the Veteran's reported symptoms to pain from chronic stress fractures of her tibias.

On VA examination in February 2018, the examiner noted a history of lower extremity stress reaction of the tibia, bilaterally. The Veteran reported sharp bilateral shin pain triggered by prolonged standing, being on her feet for many hours a day. The pain, which had improved throughout the years, was alleviated with rest. Examination revealed full range of motion of both knees with no objective evidence of painful motion. There was no additional loss of motion or function after repetitive movement. There was no evidence of pain on weightbearing or passive range of motion. There was no tenderness on palpation of the knee joints. Reflexes throughout the lower extremities were normal. There was no muscle atrophy. Examination was unremarkable, as well, for recurrent subluxation, lateral instability, or recurrent effusion. Stability testing was normal, bilaterally.

The Veteran's knees and lower legs were evaluated again in July 2018, when the examiner noted that imaging of the right and left knees that month showed moderate narrowing of both compartments, consistent with degenerative change. The remainder of the visualized soft tissues and bony structures were radiographically within normal limits. The examiner noted degenerative changes of the knees and shin splints. The Veteran complained of pain on prolonged standing and walking. Range of motion of the knees was from 0 to 125 degrees, bilaterally, meaning from extension to flexion in each knee, with no objective evidence of painful motion. There was no additional loss of motion or function after repetitive movement. There was no evidence of pain on weightbearing or passive range of motion. There was no tenderness on palpation of the knee joints. The examiner was unable to specify additional loss of motion during flare-ups without resorting to speculation. Reflexes throughout the lower extremities were normal. There was no muscle atrophy. Examination was negative for a history of recurrent subluxation, lateral instability, or recurrent effusion. Stability testing was normal, bilaterally.

On VA examination in September 2018, the examiner noted a history of lower extremity stress reaction of the tibia, bilaterally. A knee disability was not diagnosed. The Veteran complained of bilateral shin splints and knee pain with prolonged standing, sitting, bending, or walking. She treated her symptoms with Naproxsyn and rest. She endorsed flare-ups of her symptoms, with prolonged standing and walking, resulting in throbbing pain three to four times a week, lasting two to three hours. Examination revealed full range of motion of both knees with pain that did not result in additional loss of function or motion. There was no additional loss of motion or function after repetitive movement. There was evidence of pain on weightbearing and with passive motion, but with no additional limitation of motion. The examiner was unable to specify additional loss of motion during flare-ups without resorting to speculation. There was no tenderness on palpation of the knee joints. Reflexes throughout the lower extremities were normal. There was no muscle atrophy. Examination was negative for a history of recurrent subluxation, lateral instability, or recurrent effusion. Stability testing was normal, bilaterally. Imaging studies failed to show arthritis or other significant diagnostic findings.

The Veteran's was next examined in December 2020.  She complained of pain in her shins and lower legs as well chronic pain in her knees.  The examiner diagnosed bilateral stress reaction of the tibias.  The Veteran had 95 degrees of flexion in her right knee, 50 degrees of flexion in her left knee, and a full 0 degrees of extension in both knees.  There was no muscle atrophy. Examination was negative for a history of recurrent subluxation, lateral instability, or recurrent effusion. Stability testing was normal, bilaterally.  Reflexes were normal.  The examiner noted tenderness upon palpation and evidence of pain with weight bearing.  There was no objective evidence of crepitus.

The Veteran was again examined in April 2021.  The Veteran reported sustaining stress fractures from running in extra physical training.  She had flexion to 115 degrees and extension to 0 degrees in both knees.  The examiner observed evidence of pain with weight bearing, active motion, and passive motion, but it did not result in additional functional loss.  The Veteran was able to perform repetitive use testing with no additional loss of function or range.  Repeated use of time would result in a further limitation of flexion to 105 degrees.  There was no muscle atrophy. Examination was negative for a history of recurrent subluxation, lateral instability, or recurrent effusion. Stability testing was normal, bilaterally.  Reflexes were normal.

When considering this evidence, the Board finds that the disability picture is commensurate with the existing 10 percent ratings because the Veteran has pain with some consequent limitation of motion and function. However, this has not always been shown and, even when it has, she has not had a level of impairment more compatible with a greater rating.

The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995).

Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (The provisions of § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.).

A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added). In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (i.e., noncompensable) under the applicable diagnostic code. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with Diagnostic Code 5003 regarding arthritis, it does not follow that the maximum rating is warranted under the applicable Diagnostic Code pertaining to range of motion simply because pain is present throughout the range of motion. See id. Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. See id. at 43.

Here, then, this disability is not more than slight in degree for each extremity. To receive higher disability ratings, there must be malunion of the tibia or fibula with moderate knee or ankle disability, and there simply is not this greater level of impairment  even when considering the Veteran's pain. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Her VA examinations in 2013, 2018, 2020, and 2021 do not show malunion of the tibia and do not show moderate ankle or knee disability. Instead, far more often than not, examination showed that her right and left ankle range of motion was within normal limits or nearly so and that her knee flexion, whenever less than normal, even at worst was not less than normal to the point of considering it moderate level of disability. Thus, no higher ratings are warranted under DC 5262

The Board additionally has considered other potentially relevant diagnostic codes and finds that ratings greater than 10 percent are not warranted under a different diagnostic code, either.

 

Limitation of flexion of the knee warrants a noncompensable rating if flexion is limited to 60 degrees; a 10 percent rating if flexion is limited to 45 degrees; a 20 percent rating if flexion is limited to 30 degrees; and a 30 percent rating if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260.

Limitation of extension of the knee warrants a noncompensable rating if extension is limited to 5 degrees; a 10 percent rating if extension is limited to 10 degrees; a 20 percent rating if extension is limited to 15 degrees; a 30 percent rating if extension is limited to 20 degrees; a 40 percent rating if extension is limited to 30 degrees; and a 50 percent rating if extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.

But, as shown, the Veteran's range of motion in her knees was from 0 degrees of extension to, at worst, 50 degrees of flexion, often well more than that. Therefore, since there was not additional motion lost during prolonged or repetitive-use testing, this amount of restriction at most warrants a 10 percent rating under Diagnostic Code 5260 for her flexion limitation and a 0 percent (noncompensable) rating under Diagnostic Code 5261 since she repeatedly has had entirely normal extension, and she already has been awarded a 10 percent rating, so a rating commensurate with this level of limitation. See Correia v. McDonald, 28 Vet. App.158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017).

Also for consideration is Diagnostic Code 5257 for "other" knee impairment, including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, a 10 percent rating requires slight recurrent subluxation or slight lateral instability. Moderate recurrent subluxation or moderate lateral instability is rated 20-percent disabling, whereas severe recurrent subluxation or severe lateral instability is rated 30-percent disabling. But the VA compensation examinations all showed the Veteran does not have either, in either knee.

Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limitation of ankle motion. A 20 percent rating is warranted for marked limitation of ankle motion.

 

These descriptive words "moderate" and "marked" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. However, the Rating Schedule provides some guidance by defining full range of motion of the ankle as from 0 to 20 degrees of dorsiflexion and from 0 to 45 degrees of plantar flexion. See 38 C.F.R. § 4.71, Plate II.

Here, although the Veteran has reported pain in her ankles, the evidence does not demonstrate loss of range of motion of either ankle or reduced strength, even with repetitive movement. As discussed, range of motion of her right and left ankles has been within normal limits and would not warrant compensable disability ratings. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. Indeed, this is true even considering prolonged or repetitive movement of her ankles.

The Veteran is competent to describe her observable symptoms, including leg, knee, and ankle pain resulting in limitation of motion. Layno v. Brown, 6 Vet. App. 465 (1994). However, to the extent that her reported symptoms are inconsistent with the objective medical evidence of record, her statements are afforded less probative weight, as she does not possess the medical or orthopedic expertise to assess the severity of a complex musculoskeletal or orthopedic condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The medical findings directly address the criteria under which these disabilities are evaluated. Indeed, many of the tests are geared to addressing the applicable rating criteria. The Board accords the objective records greater weight than the Veteran's subjective lay complaints. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991).

Therefore, in conclusion, the Board finds that ratings higher than 10 percent are not warranted for the residuals of these left and right tibia stress fractures. Moreover, since the evidence is not in relative balance (equipoise) concerning this, there is no reasonable doubt to resolve in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7.

 

Service Connection

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

Certain conditions like arthritis are considered "chronic", per se, and therefore may be presumed to have been incurred in service if they manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of the Veteran's discharge from service, although this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).

Service connection also may be established on a secondary basis for disability that is proximately due to, or the result of, or aggravated by a service-connected disability. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) indication the current disability was either (a) caused or (b) is being aggravated by the service-connected disability. See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

 

The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011).

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. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

3. Entitlement to service connection for a left knee disability

4. Entitlement to service connection for a right knee disability

The Veteran contends that the degenerative arthritis in her knees is traceable to her service  either directly or even secondarily since caused or aggravated by her service-connected disabilities, especially those affecting her lower extremities since her gait is compromised.  But her contentions notwithstanding, the Board finds that the preponderance of the evidence is against any such notion.

The Veteran underwent a VA examination of her knees in December 2020.  She reported chronic knee pain that had begun spontaneously.  She believed it was due to her altered gait owing to issues with her feet and shins, i.e., her service-connected disabilities.  Aside from the residuals of her tibial stress fractures, service connection has been established for bilateral pes planus (flat feet) and for left and right foot hallux valgus.  She reported instability, dull achy pain, and stiffness.  She explained that she had the most difficulty when she had to sit for a while and then get back up.  She also reported difficulty ascending and descending stairs, bending to pick things up while cleaning, and working out.  She had decreased flexion of both knees with evidence of pain.  The examiner diagnosed degenerative arthritis of both knees.  However, as of the etiology, the examiner opined that the Veteran's knee disability was less likely than not caused by her service-connected pes planus, hallux valgus, or tibia stress conditions or aggravated by them.  This examiner explained that osteoarthritis of the knees is caused by trauma mechanical forces, inflammation, biochemical reactions, and metabolic derangements.  The tibia stress conditions, pes planus, and hallux valgus have distinct pathophysiology and are not related to her knee arthritis.  

The Board finds this opinion highly probative as the examiner considered all the relevant evidence of record, including the Veteran's statements, and provided the required reasoning (rationale) for the opinion, which is where most of the probative value is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The Veteran was more recently examined by VA in April 2021.  Degenerative arthritis of both knees again was diagnosed.  The Veteran reported difficulty standing, walking, or running for extended periods of time.  She again had decreased flexion of both knees with evidence of pain on weight bearing, active motion, and passive motion.  Her range of motion was further reduced with repeated use over time. But there again was not attribution of her knee arthritis to her military service, either directly or secondarily by way of any of her service-connected disabilities  including those affecting her lower extremities. Moreover, there is not competent and credible indication of degenerative arthritis in her knees within a year of her discharge from service  so by March 2012, to in turn warrant presuming it was incurred during her service.

While the Veteran is competent to report symptoms, she is not competent to render a medical opinion. Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. See Jandreau, supra; see also Jones v. Brown, 7 Vet. App. 134, 137 (1994). 

 

The Board thus finds the opinion and findings of the VA examiners who have not attributed the Veteran's knee arthritis to her service or service-connected disabilities to be significantly more probative than the Veteran's lay assertions.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

Accordingly, the preponderance of the evidence is against the Veteran's claims for service connection for left and right knee disabilities, so these claims are denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56.

5. Entitlement to service connection for HPV and cervical dysplasia

As an initial matter, the Board recognizes the following favorable findings:  a positive HPV test during the Veteran's service, in 2007, as well as a diagnosis of cervical dysplasia.

But, unlike some sexually transmitted viruses, HPV and cervical dysplasia generally resolve on their own, although in some instances they can lead to health issues such as genital warts or cervical cancer. Here, though, although the Veteran's service treatment records (STRs) show a positive HPV tests and cervical dysplasia in 2007, by 2018 her VA treatment records indicate that she no longer tested positive for the virus or for cervical dysplasia. For service connection to be warranted, not only must there be showing of relevant disease or injury in service, but there also must be consequent disability, and here there simply is not.

There is no evidence in the record of any presently active HPV infection or cervical dysplasia that may be traced to the positive test in service. Neither is there any evidence of chronic complications of the prior HPV infection such as warts, skin neoplasms, or cervical cancer. As such, the Board finds that there is no present chronic disability associated with the in-service HPV or cervical dysplasia diagnoses, and this claim resultantly must be denied. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowski v. Shinseki, 26 Vet. App. 289, 294 (2013).

The evidence is not supportive of this claim or in relative balance, instead, the preponderance of the evidence is against this claim, so there is no reasonable doubt to resolve in the Veteran's favor. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

6. Entitlement to a TDIU

The Court has explained that a TDIU claim is derivative, so part and parcel, of a claim for an increased rating for a service-connected disability, if that disability is one of those causing unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this circumstance, the Board must assume jurisdiction over this additional TDIU claim when raised by the claimant or evidence.

Here, because of her 70 percent rating for her major depressive disorder, the Veteran has a sufficient rating for this service-connected disability to meet the schedular rating requirements for a TDIU  even without additionally considering the 50 percent rating she has for her bilateral pes planus, 30 percent ratings for headaches and dermatophytosis, 20 percent rating for residual scars, 10 percent ratings for bilateral stress reaction/fracture of her tibias, and noncompensable ratings for bilateral hallux valgus, scar on her right neck, and residual scars on her anterior trunk. See 38 C.F.R. § 4.16(a).  Her combined rating for these service-connected disabilities has been 100 percent effectively since August 21, 2018. See 38 C.F.R. § 4.25 (VA's Combined Ratings Table).

Receipt of a 100 percent schedular disability rating for a service-connected disability or disabilities, however, does not necessarily render moot the issue of entitlement to a TDIU. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). This is especially true when, as here, the 100 percent schedular rating does not cover the entire rating period at issue.

The Board, therefore, must still determine whether these service-connected disabilities render the Veteran unemployable  meaning incapable of obtaining or maintaining employment that could be considered substantially gainful versus just marginal in comparison when considering her level of education, prior work experience and training, but not her advancing age and disabilities that are not service connected. 38 C.F.R. §§ 3.340, 3.341, 4.14, 4.16, 4.18, 4.19.

In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Veterans Court (CAVC) held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U. S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a Veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a Veteran's ability to "secure and follow" such employment, noting that attention must be given to:  the Veteran's occupational history, education, skill and training; whether the Veteran has the physical ability to perform occupational activities; and whether the Veteran has the mental ability to perform occupational activities.

Concerning this determinative issue, during her most recent VA examination for her major depressive disorder, the Veteran mentioned that she had to close her bakery that she had owned in 2019 due to it being too stressful.  Instead, she now only makes the occasional cake at home and sells it.  This limited work in her home, even to the extent she is compensated for it, does not amount to substantially gainful employment. 

 

Given this, and resolving all reasonable doubt in her favor, the Board finds that, absent any probative evidence to the contrary, the Veteran's service-connected disabilities render her incapable of obtaining and maintaining a substantially gainful job. Thus, a TDIU is warranted to the extent not in conflict with the 100 percent schedular rating she he has had since August 21, 2018.

 

 

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Baronofsky

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.