Citation Nr: 21012500 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-22 310A DATE: March 4, 2021 ORDER Entitlement to service connection for a foot fungus is denied. Entitlement to service connection for bilateral ankle sprain is granted, subject to the laws that govern the payment of monetary benefits. Entitlement to an initial rating in excess of 10 percent prior to January 14, 2020 and in excess of 20 percent thereafter for a neck disability is denied. Entitlement to an initial rating in excess of 10 percent for a low back disability is denied. REMANDED Entitlement to a total rating for compensation purposes based on individual un-employability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The probative medical evidence of record does not show that the Veteran's has a diagnosed foot fungus disability that was caused by or the result of military service. 2. The veteran sustained a bilateral ankle injury in service, that has since been productive of pain and swelling which a VA examiner characterized as bilateral ankle sprain, productive of functional impairment with prolonged walking. 3. Prior to January 14, 2020, the Veteran's neck disability was productive of painful motion with flexion to at least 40 degrees; from January 14, 2020, the Veteran's range of motion was limited to 30 degrees of flexion, and there has been no showings of incapacitating episodes or ankylosis. 4. Throughout the period of appeal, the Veteran's low back disability was productive of painful motion, with flexion to 70 degrees; there has been no showings of incapacitating episodes or ankylosis. CONCLUSIONS OF LAW 1. The criteria for service connection for a foot fungus have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). 2. The criteria for service connection for a bilateral ankle sprain have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). 3. The criteria for an increased disability rating in excess of 10 percent prior to January 14, 2020 and 20 percent thereafter for a neck disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Code (DC) 5237 (2019). 4. The criteria for an increased disability rating in excess of 10 percent for a low back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.71a, DC 5242 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 2009 to July 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously before the Board in January 2019, at which time it was remanded for additional development. That development having been completed; these claims are once again before the Board. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). Service connection may also be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, the evidence 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. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such service as shown by the service record, the official history of each organization in which the Veteran served, his or her treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154 (a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Foot The Veteran contends that he currently suffers from foot fungus. He attributes it to his military service, to specifically include treatment for this during service. A review of the Veteran's service treatment records shows that the service entrance examination was silent for any diagnosis of a foot disability. A June 2010 treatment record shows complaints of skin drainage on his bottom right foot. Service medical records shows that the Veteran was diagnosed with a foot fungus in June 2010. A review of the Veteran's post-service outpatient treatment records shows them to be without any discussion of symptoms or diagnoses associated with a foot fungus. The Veteran was provided with VA examinations in December 2012 and January 2020. The examiners found that the Veteran had no current diagnosis of any skin condition of the foot, including a foot fungus. The threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability, in this matter a diagnosis of a foot fungus, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement in a claim of service connection of current disability “is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary’s adjudication of the claim.” See McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, the totality of the competent evidence does not reflect that the Veteran has or has had a diagnosis of a foot fungus or residuals thereof during the relevant period on appeal. Rather, the Veteran merely had a diagnosis of a foot fungus in service that appears to have resolved without any residuals. For the reasons provided above, the preponderance of evidence is against the Veteran’s claim. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulation. Gilbert, 1 Vet. App. at 49; 38 C.F.R. § 3.102. 2. Ankles The Veteran claims that he suffers from a bilateral ankle disability that is the result of military service. The Veteran asserts that he injured his ankles during deployment in-service, but did not seek treatment out of fear of being penalized. In a December 2012 statement, the Veteran's sergeant during his time in-service asserts that he observed the Veteran injure his knee and ankle. He further elaborated that he observed pain and swelling in these joints, and that the Veteran had to subsequently wear a brace on his ankle. A July 2012 service medical record shows complaints and treatment for right ankle pain. Shortly after service, August 2012 treatment records reflect complaints of right ankle pain with swelling on activity. August 2013 records again reflect complaints of ankle pain. The Veteran was provided with a VA examination in December 2012. There he reported injuring both ankles in basic training, which periodically causes him pain and occasional swelling and popping. The examiner diagnosed the Veteran to have bilateral ankle sprain. There was no limitation of motion when examined, but swelling and pain was considered to produce functional loss/impairment, according to the examiner. This was indicated to consist in pain on prolonged walking (or standing) which the Board notes necessarily would include pain on motion/walking. The Veteran was provided with an additional VA examination in January 2020. There, the Veteran reported he experiences intermittent bilateral ankle pain, which he self-treats, and that he would occasionally use braces, more rarely on the left. Range of motion and strength in each ankle was normal. X-rays taken in December 2019, also revealed normal findings. As the examiner found no current pathology of the ankles, he declined to enter any diagnosis, or offer any views concerning a relationship with service. Although no ankle disability was found when the Veteran was examined in 2020, to establish the presence of a current disability for purposes of a VA claim for benefits, one need only establish a disability at some point during the appeal period. This was satisfied at the December 2012 examination when the examiner considered ankle swelling and pain to produce functional impairment. Although perhaps not compensable according to the Rating Schedule, the question of the level of impairment is not currently before the Board. In addition, it is clear from the record that this functional impact was considered to be related to the Veteran’s credible reports of ankle injuries during service. Given the credible accounts of in-service ankle injuries together with the presence of a current disability linked to service, a basis upon which to establish service connection for bilateral ankle sprain has been presented. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2019). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2019). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes, however, that where, as in the present case, the current appeal is based on the assignment of an initial rating for a disability following an initial award of service connection, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence 'used to decide whether an original rating on appeal was erroneous.' Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, 'staged' ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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 (2019). Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45 (2019). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2019); Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Where there is a question as to which of two evaluations shall be applied, the higher rating 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. The Veteran's service-connected neck disability is rated as 10 percent disabling prior to January 14, 2020 and 20 percent thereafter and the low back disability is rated as 10 percent disabling. These are evaluated under the general rating criteria for evaluations of the spine. 38 C.F.R. § 4.71a, DCs 5237 and 5242. A 10 percent rating is warranted if there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent rating warranted if there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. Id. A 30 percent rating is warranted if there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted if the medical evidence shows forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. Id. 1. Neck The Veteran’s claims that his neck disability is worse than reflected by his current evaluations. A review of the Veteran’s service treatment records and post-service outpatient treatment records, to include VA examinations in December 2012 and January 2020, shows that he has been treated for his neck disability with symptoms of pain and limited motion. Prior to the January 2020 VA examination, there were no showings of forward flexion 30 degrees or less. As such, prior to that time, the Veteran’s condition has been rated upon findings of painful motion only in accordance with 38 C.F.R. § 4.59. Thereafter, he has been evaluated based upon his showing of flexion to 30 degrees at the January 2020 VA examination. There have been no showings of ankylosis or incapacitating episodes, and flare-ups consisted of pain, without additional functional loss indicated. Based on the above, the Board finds that the Veteran’s neck disability does not warrant evaluation greater than 10 percent prior to January 14, 2020 or 20 percent thereafter during any time during the period of appeal. In order to warrant a higher evaluation, the Veteran would need to show evidence of worsened ranges of motion, ankylosis, or incapacitating episodes. The probative medical evidence of record has not shown such symptoms. 2. Back The Veteran’s claims that his low back disability is worse than reflected by his current evaluation of 10 percent. A review of the Veteran’s service treatment records and post-service outpatient treatment records, to include VA examinations in December 2012 and January 2020, shows that he has been treated for his low back disability with symptoms of pain and limited motion. The Veteran’s most severe range of motion loss was shown in the January 2020 examination, when flexion was to 70 degrees. Rather, the Veteran’s condition has been rated upon findings of painful motion in accordance with 38 C.F.R. § 4.59. There have been no showings of ankylosis or incapacitating episodes, with flare-ups consisting of pain, but without functional impairment. Based on the above, the Board finds that the Veteran’s low back disability does not warrant evaluation greater than 10 percent prior any time during the period of appeal. In order to warrant a higher evaluation, the Veteran would need to show evidence of worsened ranges of motion, ankylosis, or incapacitating episodes. The probative medical evidence of record has not shown such symptoms. In reaching this decision, the Board notes that changes were made to the musculoskeletal schedule of ratings, effective from February 7, 2121. However, those changes did not impact the criteria for evaluating the disabilities at issue. REASONS FOR REMAND As to the issue of entitlement to a TDIU, the bilateral ankle claim granted herein and its pending rating assignment by the RO could have an impact on the outcome of the TDIU claim, and therefore, the Board will not enter a decision on the TDIU claim until the RO assigns a rating for the bilateral ankle sprains, and re-adjudicates the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991 The matter is REMANDED for the following action: After implementing the Board’s decision above, re-adjudicate the TDIU claim. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.