Citation Nr: 21006595 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-20 208 DATE: February 4, 2021 ORDER Service connection for a low back disability is denied. Service connection for a right upper extremity disability is denied. Service connection for a left upper extremity disability is denied. A rating in excess of 20 percent for the residuals of a left ankle fracture is denied. REMANDED A rating in excess of 20 percent for bilateral hearing loss is remanded. Service connection for a right lower extremity disability is remanded. Service connection for a left lower extremity disability is remanded. Service connection for a heart condition is remanded. Entitlement to a temporary total disability rating for a heart condition is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s back condition was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established, and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran’s back condition is not secondary to his service-connected left ankle disability. 3. The preponderance of the evidence of record is against finding that the Veteran has had a right upper extremity disability at any time during or approximate to the pendency of the claim. 4. The preponderance of the evidence of record is against finding that the Veteran has had left upper extremity disability at any time during or approximate to the pendency of the claim. 5. The Veteran’s left ankle disability is rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle. Ankylosis is not present. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a right upper extremity disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left upper extremity disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for a rating in excess of 20 percent for residuals of a left ankle fracture have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to December 1975. The Board remanded the issues on appeal for additional development in July 2018. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Low Back Disability The Veteran contends he is entitled to service connection for a low back disability, asserting the condition began in service and has continued since or is secondary to his left ankle disability. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of degenerative disc disease and degenerative joint disease, both of which are forms of arthritis, as evidenced by the September 2019 VA examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran’s VA treatment records show the Veteran was not diagnosed with arthritis of the lumbar spine until the January 2009 VA examination, decades after his separation from service and decades outside of the applicable presumptive period. And while the Veteran is competent to report experiencing symptoms of back pain consistently since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports are internally inconsistent with his reports in contemporaneous treatment records, which show that he initially reported the onset of back pain in December 2000, outside of the presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Moreover, the Veteran continually attributed the pain to an injury he suffered while shoveling snow from the date of onset until November 2006, when he first reported he had experienced chronic back pain since service. See December 2000 VA Treatment Records; November 2006 VA treatment Records. Further, while the Veteran asserts that the reported symptoms were manifestations of his current lumbar spine arthritis, he is not competent to determine that these symptoms were manifestations of arthritis as the Veteran has not demonstrated the necessary medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Service connection for a back disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s lumbar spine arthritis and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The September 2020 VA examiner opined that the Veteran’s lumbar spine disability is not at least as likely as not related to an in-service injury, event, or disease, including his reported in-service back spasms. The examiner explained that the Veteran’s in-service back spasms were non-specific and generic symptoms that did not require any treatment. Finally, the Veteran has asserted that his back disability is secondary to his already service-connected left ankle disability. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. As noted above, the Veteran has lumbar spine degenerative disc disease and degenerative joint disease. The Board concludes the preponderance of the evidence is against finding that the Veteran’s back disability is proximately due to or the result of, or aggravated beyond its natural progression by, his service-connected left ankle disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The January 2009 VA examiner opined that while the Veteran asserted that his back disability began at the same time as his left ankle injury, there was no gross abnormality of the Veteran’s left ankle that could equate his ankle injury to the onset of back pain or the diagnosis of arthritis of the lumbar spine. The examiner reiterated the opinion in a March 2009 addendum. While the Veteran believes his back disability is related to an in-service injury, event, or disease, including his in-service back spasm, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized training to differentiate symptoms stemming from muscle pain and those stemming from arthritis as well as knowledge of the interactions between the joints of the ankle and the spine. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the competent medical evidence, specifically the opinions of the VA examiners. 2. Bilateral Upper Extremities The Veteran contends he is entitled to service connected for bilateral upper extremity disabilities, which he has claimed as arthritis. 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. The Board concludes that the Veteran does not have an upper extremity disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The September 2020 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of aches and pains and non-specific complaints of pain, he did not have an upper extremity disability. The examiner reviewed the Veteran’s in-service complaints of right-hand pain in September 1975 and right-shoulder pain in November 1974 and opined these complaints were generic symptoms that did not have a specific diagnosis. Further, despite consistent treatment from VA medical facilities, the Veteran’s treatment records do not include treatment for an upper extremity disability. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Id. at 1367-69. But in this case, while the Veteran has reported experiencing pain in his upper extremities, which he is competent to do, he has made no statements indicating he has suffered any functional impairment due to his subjective pain or reported he is limited in his earning capacity to his subjective pain. While the Veteran believes he has an upper extremity disability, he is not competent to provide a diagnosis in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Service connection for a bilateral upper extremity disability is therefore denied. Increased Rating 3. Left Ankle The Veteran contends that he is entitled to a rating in excess of 20 percent for his service-connected left ankle disability. The Veteran’s left ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. As the Veteran is in receipt of the highest schedular rating for limited motion of the ankle, there is no basis to award a higher rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Although a July 2010 examination by Dr. M.K. indicated the Veteran had a very limited range of motion, the examiner specifically indicated the Veteran’s ankle was not ankylosed and there was no x-ray evidence of malunion of the os calcis or astragalus. Likewise, the September 2019 VA examiner reported the Veteran’s left ankle was not ankylosed and did not have any additional conditions, including malunion of os calcis or astragalus or astragalectomy. Therefore, separate or higher ratings are not warranted under Diagnostic Codes 5270, 5272, 5273, or 5274. As the Veteran already has the maximum schedular disability rating, the appeal is denied. REASONS FOR REMAND 1. Service Connection for Bilateral Lower Extremity Conditions The Veteran has specifically asserted his bilateral lower extremity claim includes a claim for bilateral knee conditions, which he maintains are secondary to his left ankle condition. See April 2018 Veteran Statement in Support; October 2018 Representative Statement. The September 2020 VA examiner assessed the Veteran’s assertions of non-specific pain and radiculopathy but did not address his knee pain or provide an opinion as to whether it is related to the left ankle disability. Remand for an additional examination is necessary. 2. Increased Rating for Hearing Loss The April 2019 VA examiner did not provide any audiometric or the results of Maryland CNC testing, rendering the examination inadequate. The examiner reported that this was because the results of Puretone testing and speech recognition testing were in poor agreement. But the examination report does not indicate the examiner made more than one attempt to conduct the testing. Because the results of the examination are inadequate, remand for an additional examination in necessary. 3. Service Connection for a Heart Condition and a Temporary Total Rating As discussed in the Board’s July 2018 decision, the Veteran asserts his heart disability is secondary to a psychiatric disorder. In October 2020, the Board remanded the pending claims for service connection for a psychiatric disorder. As a successful service connection claim for a psychiatric disability would impact the outcome of the claim of service connection for a heart disability, the psychiatric disability claim must be adjudicated prior to the heart disability claim and the claim for a temporary total disability rating currently before the Board. Thus, the claims are inextricably intertwined, and the Board cannot adjudicate the Veteran’s claim until the remanded claims have been adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 4. TDIU Finally, because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed lower extremity disability, to specifically include any bilateral knee disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is any lower extremity disability, to specifically include any bilateral knee disability, at least as likely as not related to the Veteran’s service? Is any lower extremity disability, to specifically include any bilateral knee disability, at least as likely as not proximately due to the Veteran’s service-connected left ankle disability? Is any lower extremity disability, to specifically include any bilateral knee disability, at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected left ankle disability? 2. Schedule the Veteran for an examination by an appropriate examiner to determine the current severity of his service-connected bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 3. Then readjudicate the claims. If any benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mine 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.