Citation Nr: 21025737 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-27 559 DATE: April 28, 2021 ORDER Entitlement to a 20 percent rating for lumbar spine disability, prior to September 14, 2020, is granted. Entitlement to a rating in excess of 20 percent for lumbar spine disability is denied. Entitlement to service connection for insomnia is denied. Entitlement to service connection for patellofemoral pain syndrome of the right knee is denied. Entitlement to service connection for patellofemoral pain syndrome of the left knee is denied. Entitlement to service connection for bilateral pes planus is denied. Entitlement to service connection for pseudofolliculitis barbae is denied. Entitlement to service connection for thrombophilia is denied. REMANDED 1. Entitlement to a rating greater than 30 percent for hypertensive heart disease is remanded. 2. Entitlement to service connection for coronary artery aneurysm with dissection; status, post stent placement, is remanded. 3. Entitlement to service connection for coronary artery disease is remanded. 4. Entitlement to service connection for myocardial infarction is remanded. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s lumbar spine disability exhibited 40 degrees flexion due to pain after repeated use and flareups, but there was no ankylosis or incapacitating episodes. 2. The Veteran does not have a current diagnosis for insomnia, pseudofolliculitis barbae, thrombophilia, a bilateral knee injury, or a bilateral foot injury. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating prior to September 14, 2020 for lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5242 (2019). 2. For the entire appeal period, the criteria for a rating greater than 20 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5242 (2019). 3. The criteria for service connection for insomnia, pseudofolliculitis barbae, thrombophilia, a bilateral knee injury, and a bilateral foot injury, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1980 to September 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a February 2020 decision, the Board adjudicated the Veteran’s claims of clear and unmistakable error (CUE). The Board also determined that claims addressed in the Veteran’s December 2012 written correspondence should have been interpreted as original service connection claims and increased rating claims; therefore, these claims were remanded for further development. The Board notes, however, that the Veteran’s December 2012 correspondence also included claims that were not remanded for adjudication such as service connection for coronary artery aneurysm with dissection; status, post stent placement; service connection for coronary artery disease; and service connection for myocardial infarction. Therefore, these claims are added to the current appeal and will be remanded for adjudication in the first instance. Furthermore, in the prior remand, the RO was directed to obtain treatment records from providers who may have treated the Veteran for the claims that were being remanded. As a result, in February 2020, the RO requested that the Veteran complete a VA Form 21-4142 (a) that would allow VA to obtain the Veteran’s medical records on his behalf. Additionally, in March 2020, the RO requested that the Veteran advise VA as to where the Veteran may have received treatment for the remanded claims, including VA and private facilities. However, the Veteran did not respond to the request or provide written authorization. The Board notes that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that the duty to assist is not a one-way street). As the Veteran failed to provide these records or identify them for VA to obtain, VA’s duty to assist him in development as to this matter is met. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the Board will decide the claims on the evidence of record. Increased Rating Entitlement to a compensable rating prior to September 14, 2020 and in excess of 20 percent thereafter for lumbar spine disability. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran’s lumbar spine disability has been rated as noncompensable prior to September 14, 2020, and 20 percent disabling thereafter for the entire appeal period pursuant to the General Rating Formula for Diseases and Injuries of the Spine under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent is awarded for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, Note 2 and Plate V. Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 20 percent rating for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent rating is warranted. With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. Note (1): An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. When rating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional 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. DeLuca v. Brown, 8 Vet. App. 202 (1995). The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. 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. Therefore, painful motion should be considered to determine whether a higher rating is warranted on that basis, whether or not arthritis is present. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the criteria for rating musculoskeletal disabilities, including disabilities of the spine, have changed once during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran’s appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Board notes that this change does not impact the evaluation in this case as there is no evidence of record relevant to the Veteran’s lumbar spine on or after the effective date of the change. A review of the record shows the Veteran received a VA examination for his back in September 2020 where he was diagnosed with degenerative arthritis of the spine and intervertebral disc syndrome. The Veteran reported he treats his back with Motrin, heat, and stretching, and his current symptoms include restricted flexibility. He reported having flare-ups of the back 2 to 3 time per year which are severe, and last for approximately one week. He further reported the flare-ups are precipitated by sudden movement, twisting, lifting, and bending over which are alleviated by rest, heat/cold packs, pain killers, and stretching. Physical examination showed normal range of motion in all planes with no pain noted on the examination. There was no pain on palpation or tenderness, and the Veteran was able to perform repetitive use testing with no loss of function or range of motion. However, the examiner noted that after repeated use over time and after flare-ups, pain would cause a decrease in motion to 40 degrees forward flexion, 10 degrees extension, and 20 degrees each for right and left lateral rotation, and right and left lateral flexion. There was no guarding or muscle spasm, no muscle atrophy, and normal reflex and sensory examinations. Straight leg testing was negative; however, the Veteran exhibited radiculopathy symptoms of mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in his right lower extremity, affecting the right sciatic nerve. There was no ankylosis or other neurologic abnormalities. The Veteran was found to have IVDS of the spine, but no prescribed bedrest. Based on the above and remaining evidence, the Board finds a 20 percent rating is warranted for the entire appeal period. The Board notes that the Veteran’s assigned 20 percent rating was based on findings in the above examination dated September 14, 2020. Prior to September 14, 2020, there is no medical or lay evidence of record that the Board could consider. In his December 2012 informal claim, the Veteran noted that his back disability was treated in service with anti-inflammatory, pain, and muscle relaxer medications. However, while this evidence is relevant for purposes of service connection and possibly in determining the Veteran’s initial rating, it is not relevant in determining the current severity of the Veteran’s back disability. For non-initial increased rating claims, the Board will only consider evidence submitted one year prior to the filing of the claim for an increased rating, rather than from the initial assignment. In addition, the RO attempted to obtain any relevant treatment records on the Veteran’s behalf; however, the Veteran did not respond to the RO’s request. Notwithstanding the above, the Board notes that the Veteran’s informal claim was filed in December 2012; however, through no fault of the Veteran, he did not receive a VA examination for his back until September 2020. Therefore, the Board resolves all doubt in favor of the Veteran and finds that his back disability more nearly approximated the criteria for a 20 percent rating for the entire appeal period. The Veteran is not entitled to a higher rating as the Veteran’s back did not exhibit forward flexion of the thoracolumbar spine 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes. Notably, the Veteran’s back had normal range of motion in all planes. However, the RO considered the application of functional loss and appropriately assigned a 20 percent rating as the examiner noted a reduction to 40 degrees flexion due to pain with repeated use and flare-ups. Furthermore, separate ratings are not warranted as there is no evidence of neurological abnormalities, except for right lower extremity radiculopathy, which the Veteran has been compensated for. For these reasons, the Board concludes a 20 percent rating, and no higher, is warranted for service-connected lumbar spine disability. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2019). 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. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Whenever 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 Veteran. 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for insomnia. 2. Entitlement to service connection for patellofemoral pain syndrome of the right knee. 3. Entitlement to service connection for patellofemoral pain syndrome of the left knee. 4. Entitlement to service connection for bilateral pes planus. 5. Entitlement to service connection for pseudofolliculitis barbae. 6. Entitlement to service connection for thrombophilia. The Veteran contends service connection is warranted for the above-referenced claims. Along with his December 2012 informal claim, the Veteran submitted service treatment records (STRs) that show a diagnosis for insomnia, pseudofolliculitis barbae, thrombophlebitis of tibial vein, and treatment for his bilateral knee and bilateral foot. He contended that service connection is warranted since these conditions existed in service. The Board acknowledges that the Veteran may have been treated or diagnosed for his claimed conditions in service; however, there is no evidence that he has a current diagnosis for any of the conditions. For the entire appeal period, there is no medical or lay evidence of record the Board can consider in determining whether the Veteran has a current diagnosis. As noted above, the RO attempted to assist the Veteran in substantiating his claims; however, the Veteran did not respond to the RO’s request. Moreover, the Board finds that there is no duty in this case to provide a VA examination in support of the Veteran’s claims. See Waters v. Shinseki, 601 F.3d 1274, 1276-77 (2010) (VA has no duty to provide an examination when there is no competent evidence of a nexus between a current disability and an in-service injury, disease, or event). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, as there is no evidence of a nexus or current diagnosis for insomnia, pseudofolliculitis barbae, thrombophilia, a bilateral knee injury, or a bilateral foot injury, service connection for these claims must be denied. REASONS FOR REMAND 1. Entitlement to a rating greater than 30 percent for hypertensive heart disease is remanded. 2. Entitlement to service connection for coronary artery aneurysm with dissection; status, post stent placement, is remanded. 3. Entitlement to service connection for coronary artery disease is remanded. 4. Entitlement to service connection for myocardial infarction is remanded. As noted above, the Veteran’s claims of service connection for coronary artery aneurysm with dissection, coronary artery disease, and myocardial infarction require adjudication by the RO in the first instance. The Board also finds these claims are inextricably intertwined with the Veteran’s increased rating claim for hypertensive heart disease. Thus, remand is warranted for all of the Veteran’s related heart claims. The matters are REMANDED for the following action: 1. Obtain any outstanding private and/or VA treatment records and associate them with the Veteran’s claims folder. 2. If necessary, schedule the Veteran for VA examinations and perform other appropriate development of the Veteran’s claims to ensure they are appropriately adjudicated. 3. After undertaking any additional development deemed necessary, readjudicate the claims being remanded. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, Associate Counsel 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.