Citation Nr: 21015209 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-10 973 DATE: March 16, 2021 ORDER Entitlement to a disability rating higher than 20 percent for the service-connected thoracolumbar spine (low back) disability is denied. Entitlement to service connection for a left wrist disorder is denied. Entitlement to service connection for a right wrist disorder is denied. Entitlement to service connection for a right knee disorder is denied. FINDINGS OF FACT 1. The service-connected low back disability has been manifested by range of flexion that exceeds 30 degrees without ankylosis and without separately ratable associated objective neurological abnormalities. 2. A left wrist disorder is not related to service or to a service-connected disability. 3. A right wrist disorder is not related to service or to a service-connected disability. 4. A right knee disorder is not related to service or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 20 percent for the service-connected low back disability, or for separately compensable ratings, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, Diagnostic Code 5242 (2021). 2. The criteria for entitlement to service connection for a left wrist disorder are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2021). 3. The criteria for entitlement to service connection for a right wrist disorder are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2021). 4. The criteria for entitlement to service connection for a right knee disorder are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from April 1, 1980 to November 17, 1980. This appeal comes before the Board of Veterans’ Appeals (Board) from October 2011 and November 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran did not report for a Board hearing that was scheduled to be conducted at the RO in March 2018 and October 2018. Because the Veteran has neither submitted good cause for failure to appear or requested to reschedule the hearing, the request for a hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (failure to appear for a scheduled hearing treated as withdrawal of request). The Veteran was incarcerated on July 23, 2020; however, this was subsequent to the date of the Board hearing. In December 2018, the Board remanded these issues for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. The Board also denied service connection for neck and left shoulder disorders. The Board’s decision with respect to those claims is final. See 38 C.F.R. § 20.1100. The Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is a component of the increased rating claim(s) on appeal in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). However, the Veteran does not contend that his service-connected low back disability (rated at 20 percent), without consideration of nonservice-connected disabilities, has rendered him unable to secure or follow a substantially gainful occupation. He stated that, when he is experiencing flares, he cannot perform physical tasks. However, he estimated flares as occurring about 2-3 times a year, lasting for 3- 7 days. This does not suggest unemployability even with respect to physical occupations. Disability Rating—Law and Regulations Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate 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, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca, supra; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes 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’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2021). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gilbert at 54. Entitlement to a disability rating higher than 20 percent for the service-connected thoracolumbar spine disability. A review of the evidence, as noted, reveals that the Veteran could not be contacted by letter or telephone to schedule a VA medical examination. A review of the claims file indicates that all correspondence from VA was sent to his current address of record. The Board acknowledges that the Veteran was incarcerated in July 2020. However, the examination was scheduled for April 2019, well prior to this. The Veteran has an obligation to cooperate, when required, in the development of evidence pertaining to his claims. He has a duty to keep VA apprised of his whereabouts. The duty to assist is not always a one-way street, nor is it a blind alley. Olson v. Principi, 3 Vet. App. 480, 483 (1992); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA efforts to obtain an adequate examination of the Veteran, in order to evaluate his claim fully and fairly, have been unsuccessful, and there is no indication that additional efforts prior to his incarceration would have been fruitful. See Soyini v. Derwinski, 1 Vet. App. 541 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). As reasonable efforts were made by the Agency of Original Jurisdiction (AOJ) to comply with the Board’s instructions, the Board finds that there is substantial compliance with its instruction; and, therefore, no violation of Stegall v. West, 11 Vet. App. 268, 271 (1998); Mathews v. McDonald, 28 Vet. App. 309, 315 (2016); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). While substantial compliance is required, strict compliance is not. In an October 2006 rating decision, VA granted service connection for degenerative disc disease of the lumbar spine and assigned an initial disability rating of 10 percent under Diagnostic Code 5242, effective September 19, 2005. In a December 2007 rating decision, the disability rating was increased to 20 percent, effective August 24, 2007. It was decreased to 10 percent in a February 2010 rating decision. The rating was returned to 20 percent in an April 12, 2011, rating decision. The current appeal arises from an increased rating claim received at VA on April 29, 2011. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include lumbosacral strain (Diagnostic Code 5237). A rating of 100 percent requires unfavorable ankylosis of the entire spine. A rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. A rating of 40 percent requires unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A rating of 20 percent requires 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. A rating of 10 percent is assigned with 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. The Veteran was afforded a VA examination in October 2013. At that time, forward flexion was measured to 90 degrees or greater. There was no objective evidence of painful motion. Extension was measured to 25 degrees. There was no objective evidence of painful motion. Right lateral flexion was measured to 25 degrees. There was no objective evidence of painful motion. Left lateral flexion was measured to 20 degrees. There was no objective evidence of painful motion. Right lateral rotation was measured to 25 degrees. There was no objective evidence of painful motion. Left lateral rotation was measured to 20 degrees. There was no objective evidence of painful motion. There was no additional loss of motion after 3 repetitions. Functional loss consisted of less movement than normal and pain on movement. There was not guarding or muscle spasm. Strength in the lower extremities was full, with no atrophy. Reflexes were hypoactive at the knee and normal at the ankles. Sensory examination in the lower extremities was normal. There were no signs or symptoms of radiculopathy. There was no intervertebral disc syndrome. The Veteran stated that, when he is having flares, he is unable to perform any physical employment. The Veteran will have flares of severe pain about 2-3 times a year. These flares will last for 3- 7 days. Aside from the flares, he cannot lift more than 25 pounds without causing pain in the back (Record 10/29/2013). Pertinent to the period on appeal, outpatient treatment records can be summarized as showing complaints of lumbar pain, with pain radiating into the left hip. After a review of all of the evidence, the Board finds that the criteria for a rating higher than 20 percent for the service-connected low back disability are not met. The current evaluation contemplates pain on motion and flexion greater than 30 degrees but not greater than 60 degrees. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of flexion to 30 degrees or favorable ankylosis. The presence of pain, as described by the Veteran, is certainly a component of his spine disability; however, all compensable levels under the rating schedule are assigned with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); see 38 C.F.R. § 4.40. Here, the evidence demonstrates no additional functional impairment that would warrant a higher rating than currently assigned. While it is clear from the record that the Veteran has joint pathology as described under 38 C.F.R. § 4.59; and, there is limited motion, and painful motion, those provisions establish only that the Veteran is entitled to a minimum compensable evaluation for such symptomatology. Such a rating is already assigned. Evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. As there is no finding of intervertebral disc syndrome, use of the alternative rating formula for rating intervertebral disc syndrome is not indicated. There are also no confirmation of associated objective neurological. The VA examiner found that there were no such abnormalities. Accordingly, a separate rating is not warranted. In sum, the Board finds that the service-connected low back disability has been manifested by range of flexion that exceeds 30 degrees without any degree of ankylosis and without associated objective neurological abnormalities. In light of these findings of fact, the Board concludes that a disability rating higher than 20 percent for the service-connected low back disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (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). Service Connection—Law and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Entitlement to service connection for a left wrist disorder. Entitlement to service connection for a right wrist disorder. Entitlement to service connection for a right knee disorder. As with the service-connected low back disability, the Veteran could not be contacted by letter or telephone to schedule the VA medical examinations required by the Board’s remand. The Board finds that there was substantial compliance with its remand instructions and that no additional efforts are indicated. Service treatment records reveal that in September 1980, the Veteran was treated for complaint of his right knee giving out when running or walking for the past month. On examination, range of motion was full. Examination was negative for sub patella pain, negative for crepitus, and negative for lateral ligament laxity. The assessment was subjective knee problem. He was referred to physical therapy (Record 06/23/2014 at 31). A September 25, 1980, physical therapy note indicates that the Veteran had right knee pain ever since basic training, and that it gives out while running and walking (Record 06/23/2014 at 30). At service separation, the Veteran reported that he hurt his wrist on the range. The examiner noted a prior medical history of right knee pain (Record 10/22/1980). Service treatment records also reveal a right hand injury in April 1980 (Record 10/22/1980 at 3). X-rays were normal (Record 10/17/2006 at 50). A separate treatment note indicates the injury as a blister (Record 06/23/2014 at 7). At service separation, he was examined and found to have normal lower extremities and normal upper extremities. No wrist or knee problems were found. Consistent with this, he was assigned the highest physical profile rating of 1 for the upper and lower extremities (Record 10/17/2006 at 29). This indicates that he possessed a high level of medical fitness and, consequently, was medically fit for any military assignment regarding the upper and lower extremities. See 9–3(c)(1) Army Regulation 40–501, Change 35; Hanson v. Derwinski, 1 Vet. App. 512 (1991); Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). The Veteran was discharged in November 1980 after six months of service (basic training) due to unsuitability. This was based on attitude and effort, and was not related to any disability. He filed his initial claims for these disorders more than 30 years later. An October 2013 VA Examination of the wrists reveals a diagnosis of degenerative joint disease, with date of diagnosis in October 2013. A right knee examination conducted concurrently also reveals a diagnosis of degenerative joint disease with initial diagnosis in October 2013 (Record 10/29/2013). Regarding the right knee, the examiner opined that the disorder was less likely than (less than 50 percent probability) related to service. The rationale was that there was no history of Outpatient treatment records reveal the Veteran’s denial of any history of previous leg trauma in March 2011 (Record 05/14/2020 at 339). The first complaint of right wrist pain appears to be in 2006. In addition to degenerative joint disease, he has been described as having median neuropathy (carpal tunnel syndrome). After a review of all of the evidence, the Board finds that the criteria for service connection are not met for a left wrist disorder, a right wrist disorder, or a right knee disorder. While the Veteran complained of right knee pain in service, he has not provided medical or other evidence between those complaints made in 1980, and the current degenerative joint disease, diagnosed many years later. While the medical opinion obtained by VA does not acknowledge these complaints, the Veteran was not cooperative in an attempt to rectify that situation. With respect to the wrists, there were no wrist injuries noted in service. The injury to the right hand appears be nothing more than a blister. Again, the Veteran has not provided a medical opinion to relate that injury to his current bilateral degenerative joint disease. He has not cooperated with VA’s attempt to assist him in obtaining such an opinion. Ultimately it is the responsibility of VA claimants to support their claims. If they do not cooperate with VA’s efforts to assist them, they must substantiate their claims by their own means. The only substantiated element necessary for service connection for the left wrist is a current disability. The Board accepts the potential that the Veteran’s right hand injury could substantiate the second element of injury or disease in service. However, there is no medical opinion of record that purports to establish the necessary third element of nexus. The Board has considered the Veteran’s lay statements regarding nexus. The Board acknowledges its obligation to read the filings of this pro se claimant liberally. See Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); and Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (each emphasizing that pro se filings must be read liberally). However, the conditions noted in service are not the same conditions currently diagnosed. Relating current degenerative joint disease to temporally remote events in service is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). The issue is medically complex, as it requires knowledge of the potential causes of these diseases. Therefore, the question is outside the competence of a layperson because the record does not show that he has the medical training or credentials to make such a determination. Accordingly, the Veteran’s lay statements are not competent evidence on this question. In sum, the Board finds that the claimed left wrist, right wrist, and right knee disorders are not related to service. In light of these findings of fact, the Board concludes that service connection for the claimed disorders is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.