Citation Nr: 21076675 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 15-06 720A DATE: December 27, 2021 ORDER Entitlement to an increased evaluation in excess of 10 percent for a left ankle sprain is denied. Entitlement to service connection for irritable bowel syndrome (IBS) is denied. FINDINGS OF FACT 1. The evidence supports a finding that the Veteran's left ankle disorder is manifested by moderate limitation of the left ankle motion. 2. The evidence does not support a finding that the Veteran's IBS is proximately related to his service connected left inguinal hernia repair scar or aggravated beyond its natural progression by an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation in excess of 10 percent for a left ankle sprain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.17a, Diagnostic Code 5271. 2. The criteria for service connection for irritable bowel syndrome (IBS) are not met. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1977 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a claim for entitlement to service connection for the above disorders in September 2011. In a December 2012 rating decision on appeal, the RO awarded service connection for the Veteran's left ankle sprain and assigned a 10 percent evaluation effective September 2011. The RO also denied the Veteran's service connection claim for IBS. The Veteran appealed the RO decision in a May 2013 notice of disagreement. The Board remanded the Veteran's claims for additional development in August 2018, April 2019, November 2019, and most recently in a February 2021 remand. In the February 2021 remand, the Board requested that the RO associate an August 2020 colonoscopy report referenced by the August 2020 examiner and schedule the Veteran for an IBS examination to determine the pathology of the Veteran's IBS. The Board also requested that the RO schedule the Veteran for a VA examination to determine the severity of the Veteran's left ankle disorder. A review of the record indicates that the Veteran was sent a March 2021 VA Form 21-4142 to obtain the requested 2016 colonoscopy treatment record. The Veteran did not respond so the record could not be obtained. The record indicates that the Veteran was able to attend a primary care visit on June 2021; however, for his VA disability examinations, the Veteran first requested rescheduling of a July 2021 due to illness. He then requested the rescheduling of an August 2021 VA disability examination, the Veteran reported that he could not attend the VA examination due to an immobilized vehicle. The Veteran was offered transportation to his appointment, but the Veteran refused transportation. When the Veteran appeals from an original assignment of a disability rating, the claim is classified as an original claim, as opposed to one for an increased rating. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995); Turk v. Peake, 21 Vet. App. 565 (2008). The Board notes that the Veteran's left ankle claim is an initial rating claim. As such, the Board will rate the Veteran's left ankle disability based on the record. 38 C.F.R. § 3.655 (a) states, "[w]hen entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA." The Board has determined that the RO has corresponded with the Veteran at the correct address and the Veteran has made no assertions that they were not notified. Furthermore, the Veteran has not communicated good cause for missing his scheduled VA examinations for is claims. As such, the Board finds that the Veteran has not established good cause and his examinations will not be rescheduled. 38 C.F.R. § 3.655. The Veteran's claims will be adjudicated based on the evidence of record. Id. As noted above, in February 2021, the Board remanded this claim for further development, which has since been substantially completed. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. The Board notes that the evidence in the record pertaining to the Veteran's left ankle sprain is dated prior to February 7, 2021, thus the regulations on/after February 7, 2021 for Diagnostic Code are not applicable. Prior to February 7, 2021, the Veteran's left ankle sprain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic 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. Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date and apply the version most favorable to the Veteran. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 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). Also, for consideration, under Diagnostic code 5270, a 20 percent evaluation will be assigned for plantar flexion less than 30 degrees. A 30 percent evaluation will be assigned for ankle ankylosis in plantar flexion between 30 degrees and 40 degrees, or dorsiflexion between 0 degrees and 10 degrees. A 40 percent evaluation will be assigned for ankle ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. C.F.R. § 4.71a, Diagnostic Code 5270. 1. Entitlement to an increased evaluation in excess of 10 percent for a left ankle sprain As indicated in a November 2012 VA ankle examination, the clinical records in this case establish that the Veteran has had an ongoing left ankle disorder. The Veteran's contention is that he is entitled to an increased evaluation in excess of 10 percent for a left ankle disorder. In a November 2012 VA ankle examination, the examiner diagnosed the Veteran with a left ankle sprain. The Veteran reported flare-ups impacting the function of his ankle. Planter flexion was noted at 35 degrees with no evidence of painful motion. Dorsiflexion was noted at 20 degrees with evidence of painful motion at 15 degrees. Range of motion with repetitive testing reveals plantar flexion noted at 30 degrees with post-test dorsiflexion noted at 15 degrees or greater. Functional impairment of the left ankle was noted as less movement than normal and disturbance of locomotion. Interference with standing on weight-bearing was noted with localized tenderness and pain on palpitation. Muscle strength testing was noted at 5 of 5 with no evidence of joint instability, laxity, or ankylosis. X-ray findings showed a normal ankle. Regarding functional and occupational limitations, the Veteran reported that he was formerly employed as an insurance agent. The examiner noted that the Veteran's left ankle sprain impacts his ability to work. The Veteran noted that he experiences stiffness in his left ankle occasionally when carrying anything heavy. In a June 2019 VA outpatient treatment note, the Veteran reported increased pain in his left ankle. After a thorough review of the record, the Board concludes that the current evidence does not provide a basis for granting a higher 20 percent evaluation for the Veteran's left ankle disorder. Prior to the regulation change in February 2021, there is no evidence of marked limitation. Although there is evidence of interference on standing with weight-bearing and localized tenderness diagnosed, there were no findings of functional impairment resulting in marked limited motion of the ankle. Furthermore, the Veteran reported that he was last employed as an insurance agent which by implication denotes sedentary employment. The Board notes that the nature of the Veteran's past employment in an insurance agency has resulted in limited functional impact because he only experienced symptoms when carrying heavy loads. Since February 2021, the Board does not find evidence of less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Moreover, the Board must rate on the basis of the record and no findings of marked limitation of motion of the right ankle. Additionally, in the Veteran's recent June 2021 VA primary care visit, the Veteran did not report any left ankle orthopedic complaints. The Board also considered the assignment of a higher evaluation under Diagnostic Code 5270; however, there are no findings of functional impairment resulting in joint instability, laxity, or ankylosis were noted as negative to warrant the assignment of a higher evaluation under diagnostic code 5270. As such, the Board finds that the preponderance of the evidence does not warrant the assignment of an evaluation in excess of 10 percent as there is no evidence in the record to support a diagnosis of marked limitation of motion less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. The Board finds that the functional impairment of the Veteran's ankle impairment is moderate. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board finds that based on the evidence of the claims file, the assigned 10 percent evaluation currently assigned better approximates the trajectory of the Veteran's left ankle disorder. As the Board reviewed the Veteran's records and determined that they do not support an increased disability rating in excess of 10 percent for this disorder, the evidence for this period preponderates against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. Service Connection Service connection may be granted 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. 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 disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" the so-called "nexus requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). With regard to the element of a current disability, current means near the time a claim is filed or at any time during its pendency. McClain v. Nicholson, 21 Vet. App. 319 (2007). Disability refers to the functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018) (holding that pain can constitute a current disability, even without an underlying diagnosis, if it causes sufficient functional impairment). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, a preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board must determine the value of all pertinent lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The evaluation of evidence generally involves three steps: competency, credibility and weighing the evidence as a whole. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n. 4 (Fed. Cir. 2007). However, laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). The Board must then determine if the evidence is credible; in determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). 2. Entitlement to service connection for irritable bowel syndrome (IBS) The Veteran contends that his IBS is proximately related to his service connected left inguinal hernia repair scar or aggravated beyond its natural progression by an in-service injury or disease. In an October 1976 entrance examination, the Veteran reported undergoing surgery for a hernia rupture five to six years prior to entrance into service. The examiner noted no residuals. July 1979 STRs reveal that the Veteran underwent treatment for an inguinal hernia in-service. August 1979 STRs reveal that the Veteran underwent a surgical procedure for his inguinal hernia and was placed on a three plus week profile. In a September 1979 post-surgical examination, the examiner noted that the site was well-healed with no residuals. Throughout the entirety of the Veteran's period of active duty, the records are bare for reporting of any stomach cramping, bowel problems, or gastrointestinal problems. In an August 1981 Medical Separation Statement of Option, the Veteran elected to not undergo a separation examination. The Veteran is service-connected for left inguinal hernia repair scar at 0 percent since 2011. In a November 2012 VA intestinal disorder examination, the examiner diagnosed the Veteran with IBS. The Veteran reported that the onset of his IBS started after he underwent hernia surgery in-service. The examiner first opined that the Veteran's IBS was at least as likely as not incurred in or caused by an in-service injury, event, or illness. The examiner noted that there was documentation in the STRs of a left inguinal hernia surgery. The examiner then offered a conflicting opinion and opined that the Veteran's IBS was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner noted that medical literature reveals that the causes of IBS are unknown. The examiner also noted that associated pathophysiology included altered gastrointestinal motility, alteration in gut flora, and increased sensitivity are related to the Veteran's IBS. The examiner also noted that risk factors consist of anxiety, depression, personality disorders, history of childhood sexual abuse, and domestic abuse in women. The examiner highlighted the fact that there was no indication from this information that a prior hernia surgery could cause IBS. August 2013 VA outpatient treatment records reveal that the Veteran reported a history of IBS. The Veteran also noted that he experiences diarrhea at times with constipation. In a December 2018 VA IBS examiner opinion, the examiner opined that the Veteran's IBS is less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner explained that in the Veteran's 2012 VA IBS examination, the Veteran reported that the onset of his hernia surgery began after he underwent hernia surgery in-service. The examiner noted that the Veteran's reporting of in-service IBS cannot be confirmed as there are no complaints for distress of the bowels in-service. The examiner also noted that in the Veteran's post-surgical follow-up examination, there were no gastrointestinal complaints. Lastly, the examiner noted that the Veteran did not report his IBS until many years after separation after service. June 2019 VA outpatient treatment records reveal that the Veteran reported bloating and abdominal discomfort. The examiner noted the Veteran's bowels sounds as normal with a non-tender abdomen and no palpable mass. Barrett's esophagus with erosive gastritis was diagnosed. In an August 2020 VA addendum opinion, the examiner noted that the Veteran did not report for his scheduled VA examination. The examiner reviewed the medical records and noted that an opinion could not be offered due to a lack of a VA IBS examination. The Veteran is competent to report what happened in service as well as competent to report issues such as IBS. See Jandreau v. Nicholson, 492 F. 3d at 1377, n. 4. The Veteran did not have a separation examination. The Veteran did not respond to requests for medical records or other contemporaneous treatment since service. The last Board remand found the Veteran credible. Smith v. Wilkie, 32 Vet App. 332 (2020). Unfortunately, the Veteran did not report to the requested examination and there is still no link between IBS and service or the service-connected inguinal hernia. The request for obtaining the non-VA colonoscopy went unanswered. The Board notes that the Veteran's assertions that his IBS is related to his time in-service is credible, yet there is no evidence in the record to support finding a nexus between the Veteran's service connected inguinal hernia and/or his time in-service. Furthermore, the Veteran did not respond to the RO request to obtain a colonoscopy which might have resolved the question at issue. Apart from the Veteran's assertions, there is no positive clinical opinion in the record relating the Veteran's IBS to his time in-service. The Board notes that lay persons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). (Continued on the next page) As the claims file lacks evidence of an IBS disorder secondary to the Veteran's service connected left inguinal hernia repair scar, the Board finds that the evidence of the record indicates that the onset of the Veteran's IBS disorder is less likely than not related to his service connected left inguinal hernia repair scar. As a pathology for IBS disorder has not been shown to be related to the Veteran's service connected left inguinal hernia repair scar, the Board finds that the clinical evidence does not support the Veteran's contentions. Based on this evidence, the Board finds service connection is not warranted. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The benefit of the doubt rule is not applicable, and the claim is denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elliot Harris 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.