Citation Nr: 21026713 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 13-05 099 DATE: May 3, 2021 ORDER 1. Entitlement to service connection for a low back disability is denied. 2. Entitlement to a 30 percent rating for irritable bowel syndrome (IBS) for the pendency of the appeal is granted. 3. Entitlement to a rating in excess of 20 percent for a left ankle disability is denied. REMANDED 4. Entitlement to service connection for a neck disability is remanded. FINDINGS OF FACT 1. A chronic low back disability was not manifested in service; arthritis of the low back was not manifested within a year following the Veteran's discharge from active duty, and his current back disability is not shown to be etiologically related to his service. 2. Throughout the pendency of this appeal, it is reasonably shown that the Veteran's IBS has been severe and manifested by diarrhea, with more or less constant abdominal distress. 3. The Veteran's left ankle disability are not shown to have been manifested by ankylosis. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2020). 2. The criteria for a rating of 30 percent for IBS have been met throughout the pendency of the appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.114, Diagnostic Code (Code) 7319 (2020). 3. The criteria for a rating in excess of 20 percent for a left ankle disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Code 5271 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran who served on active duty in the U.S. Marine Corps from June 1987 to March 1995 including service in Southwest Asia. He was awarded the Combat Action Ribbon. These matters are before the Board of Veterans' Appeals (Board) on appeal from July 2010, June 2013, and July 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, a Travel Board hearing was held before the undersigned; a transcript is in the record. In August 2018, these matters were remanded for additional development. A January 2021 rating decision increased the Veteran's rating for IBS to 30 percent effective January 11, 2021. 1. Entitlement to service connection for a low back disability. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Certain chronic diseases (to include arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period following separation from service (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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 layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative 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 (b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). An October 1991 Service Treatment Record (STR) notes the Veteran was seen with complaints of lower back muscle strain which was injured during a football game. On December 1994 report of medical examination, the Veteran's spine was normal on clinical examination. In the concurrent medical history questionnaire, the Veteran denied any recurrent back pain. On August 2012 back conditions DBQ, the diagnoses were strain of an unspecified portion of the back (1991), and degenerative intervertebral disc disease (2011). The examiner opined that it was less likely than not that the Veteran's low back disability was related to service. The examiner opined that the Veteran's in-service back injury was acute and self-limited. The examiner noted a normal separation examination, and further opined that the Veteran's degenerative arthritis was age related and not due to the Veteran's in-service muscle strain. At the February 2018 Travel Board hearing, the Veteran testified that he twisted his back in service was seen for a back strain and given Motrin to help with inflammation. The Veteran testified to seeking treatment with a chiropractor in 1999 or 2000. He testified that the chiropractor used a TENS unit on his neck. He testified that he has sought treatment for his back through VA. In November 2019 correspondence, VA requested the Veteran submit a VA Form 21-4142 to obtain records the Veteran identified from a private provider in New Orleans in 1999 or 2000. Initially, the Board notes that the Veteran has not provided a VA Form 21-4142 necessary to obtain the private chiropractic records. He has also not otherwise submitted such records for consideration. Notably, at the Travel Board hearing the Veteran testified that such treatment was related to a neck disability, and that the medical treatment he received for his back had been through VA (and possibly a different private provider of which records are associated with the file). See February 2018 Travel Board hearing pg. 9-10. Accordingly, as such records do not appear to be directly pertinent to the matter of service connection for the low back, adjudication of the matter without further attempts to obtain such private chiropractic records is warranted. The Veteran contends that his current back disability is etiologically related to his complaints of back pain/injuries in service. It is not in dispute that he now has a low back disability (including degenerative arthritis of the lumbar spine). STRs show that the Veteran was seen for a back strain in service. However, the record shows that the Veteran's low back injury in service was acute and resolved with treatment, and that a chronic low back disability was not diagnosed. The Veteran denied any recurrent back pain. Additionally, there is no diagnostic studies (such as X-Ray) demonstrating that arthritis of the low back was manifested in the first post-service year. At the February 2018 Travel Board hearing, the Veteran reported seeking chiropractic treatment for his neck shortly after service (1999 or 2000). However, the Veteran reported he has only received treatment for his back through VA. As there is no documentation of reports or treatment of arthritis of the low back until years after service, continuity of low back arthritis symptoms post-service is also not shown. Consequently, service connection for a low back disability on the basis that a chronic such disability became manifest in service and persisted, on a chronic disease presumptive basis (for arthritis of the low back under 38 U.S.C. §§ 1112, 1137) or based on continuity (under 38 C.F.R. § 3.303(b)) is not warranted. Under these circumstances, whether a currently diagnosed low back disability is etiologically related to injuries and complaints in remote service is a medical question, beyond the scope of common knowledge or capability of resolution based on lay observation; it requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has not submitted any medical evidence indicating that his current back disability may be related to service, and does not cite to any clinical data supporting his theory of entitlement. The August 2012 medical opinion provided that it was less likely than not that the Veteran's back disability is related to his service is against the Veteran's claim. The provider expressed familiarity with the record, and explained the rationale for the conclusion that the back disability was not incurred in service. The examiner explained that the reports of back injury in service was acute and resolved, and noted that the Veteran had not sought treatment for his back for several years after service. The examiner also identified a more likely etiology of age. The weight of competent and credible evidence is against this claim, and the appeal in this matter must be denied. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When the appeal is from the initial rating assigned with an award of service connection, the entire period from the initial assignment of the disability rating to the present is to be considered, and "staged" ratings may be assigned based on facts found. See Fenderson v. West, 12 Vet. App. at 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 2. Entitlement to a 30 percent rating for IBS The Veteran's IBS disability is currently rated as non-compensable (0 percent) (prior to July 15, 2011), 10 percent (prior to March 4, 2014), and 30 percent from January 11, 2021. The Veteran contends that he is entitled to ratings higher than 0 percent and 10 percent prior to January 11, 2021. IBS is rated under Code 7319 for irritable colon syndrome. Under Code 7319, a 0 percent rating is warranted for mild irritable colon syndrome with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is warranted for moderate irritable colon syndrome with frequent episodes of bowel disturbances with abdominal distress. A (maximum) 30 percent rating is warranted for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, Code 7319. Code 7319 specifically provides for a maximum rating of 30 percent unless there are exceptional or unusual circumstances to warrant referring the case for extra-schedular consideration. 38 C.F.R. § 3.321. In July 2011, the Veteran was seen with complaints of alternating constipation and diarrhea. On January 2012 treatment record the Veteran reported loose stool and constipation since returning from overseas in service. He was unable to relate his symptoms to a specific food. On February 2012 intestinal conditions examination using a disability benefits questionnaire (DBQ), the diagnosis was IBS. The Veteran reported symptoms of alternating diarrhea and constipation. The Veteran reported treating his symptoms with over the counter antidiarrheal preparations. The symptoms were reported as occasional episodes of abdominal distress. Weight loss and malnutrition were not shown or attributable to the intestinal condition. On March 2014 intestinal conditions DBQ, the diagnosis was IBS. The Veteran reported symptoms of alternating constipation and diarrhea when he returned from deployment in 1991. The Veteran reported that over time it became primarily diarrhea, and will have on average three to four loose bowel movements with mucus daily. He also reported that constipation for several days occurs less than once per month. The Veteran reported that daily diarrhea was accompanied by diffuse lower abdominal cramps, bloating, and flatus. It was noted that the Veteran required daily fiber supplement to normalize stool water content, and required anti-diarrheal medicine to travel long distance. Signs and symptoms attributed to IBS included diarrhea, alternating diarrhea and constipation, and abdominal distension. Frequent episodes of bowel disturbances with abdominal distress were reported. Seven or more episodes of exacerbations and/or attacks of the intestinal condition within the past twelve months were noted. Weight loss, malnutrition, and tumors and neoplasms were not shown. In July 2014 correspondence the Veteran reported experiencing nearly constant abdominal pains and severe diarrhea. At the February 2018 Travel Board hearing, the Veteran testified that he experiences diarrhea approximately ten or fifteen minutes each time after he eats. He also testified to experiencing gas, discomfort, and bloating daily (multiple times per day). The Veteran reported continuing to treat his IBS with over the counter medications. On January 2021 intestinal conditions DBQ, the diagnosis was irritable bowel syndrome. The Veteran reported alternating diarrhea and constipation. The signs and symptoms attributable to IBS were noted as alternating diarrhea and constipation, and frequent bloating, gas, and abdominal pain. Frequent episodes of bowel disturbance with abdominal distress, and episodes of increased abdominal pain, diarrhea, and bloating were noted. Weight loss, malnutrition, and tumors and neoplasms were not shown to be related to IBS. The Board finds that an increased rating of 30 percent under Code 7319 is warranted throughout the period of the appeal. A review of the record for the period on review found evidence showing that the criteria for a 30 percent rating for IBS are met (or at least approximated) throughout. The Veteran has been consistent in reporting multiple episodes of diarrhea a day, with accompanying abdominal distress. The Board finds that cumulatively such recurrence of symptomatology more closely amounts to more or less constant abdominal distress. Accordingly, a 30 percent rating is warranted throughout the pendency of this appeal. A 30 percent is the maximum schedular rating under Code 7319. Notably, the Veteran's IBS is not shown to have caused material weight loss, anemia, or serious or other general health effects attributable to his service-connected IBS. Accordingly, a rating in excess of 30 percent is not warranted. 3. Entitlement to a rating in excess of 20 percent for a left ankle disability During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, Code 5271 provided for a 10 percent rating for moderate limitation of motion and a 20 percent [maximum] rating for marked limitation. Normal ranges of ankle motion are dorsiflexion 0 to 20 degrees and plantar flexion 0 to 45 degrees. 38 C.F.R. § 4.71a, and Plate II. Moderate and marked limitation of motion were not specifically defined under the old Code. As of February 7, 2021, under the amended criteria for Code 5271, what qualifies as "moderate" and "marked" is now defined. Specifically, "moderate" limitation of range of motion is shown with less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, and warrants a 10 percent rating. A "marked" limitation of motion is shown with less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, and warrants a 20 percent [maximum] rating. 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). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). On April 2010 examination the Veteran reported that he could not run, jump, or stand for long periods of time due to his ankle. Range of motion was abnormal with dorsiflexion limited to 5 degrees from the neutral position and plantar flexion limited of 55 degrees from the neutral position. Inversion and eversion were limited to 5 degrees. Pain on motion was noted. A January 2013 treatment record notes the Veteran was seen with decreased left ankle motion and pain. The Veteran reported that the pain prevented him from running for very long, and reported ankle stiffness. On examination it was noted that the Veteran's left ankle was swollen. Range of motion was abnormal with dorsiflexion limited to 5-10 degrees and plantar flexion limited to 25 degrees. A slight limp was noted initially when walking. Normal sensation to light touch was noted. Over the counter anti-inflammatories were recommended. In July 2019 the Veteran was seen with complaints of decreased activity due to bilateral ankle pain. The Veteran reported chronic ankle pain and swelling. He was assessed for ankle supports. On January 2021 ankle conditions DBQ the left ankle symptoms were noted as constant aching and pain, with severe throbbing pain, increased stiffness, and swelling. Range of motion was abnormal with dorsiflexion limited to 5 degrees and plantar flexion limited to 25 degrees. Muscle strength was reduced to 4/5. Muscle atrophy and ankylosis were not shown. The instant claim for an increase was received March 17, 2010. Accordingly, the period for consideration begins one-year prior in March 2009. Initially, it is noted that from February 7, 2021 the Veteran is entitled to have his service-connected left ankle disability considered under both the old and new rating criteria of 5271. Notably, the Veteran's left ankle was last examined in January 2021. The Board has considered whether remand for a new examination following the modification of Code 5271 is necessary. However, the Veteran was last examined in January 2021, and there is no allegation that ankylosis has manifested since that time. Under such circumstances (where an examination was conducted in such close proximity of the newly implemented rule, and an allegation of worsening within such time is not presented), a new examination following the modification of Code 5271 on February 7, 2021 is not warranted. The Veteran's left ankle disability is rated under Code 5271 (for limitation of motion). An ankle disability may alternatively be rated under criteria in Codes 5270 (for ankylosis of the ankle) and 5272 through 5274 (for ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, and astragalectomy). 38 C.F.R. § 4.71a. At the outset, the Board notes that Codes 5270, 5272, 5273, and 5274 do not have applicability in this matter, as there is no evidence that the left ankle, subastragalar joint, or tarsal joint are ankylosed, that there is malunion of the os calcis or astragalus, or that the Veteran underwent astragalectomy (i.e., the pathology addressed by those Codes). An increase from the 20 percent rating assigned for the Veteran's left ankle disability would require ankylosis in plantar flexion or dorsiflexion (Code 5270). A close review of the record found that ankylosis of the ankle has not been noted at any time; therefore, a rating in excess of 20 percent is not warranted. Significantly, whenever range of motion studies were conducted, the Veteran was found to have motion in the ankle, i.e., the ankle was not in a fixed position. The criteria for a rating higher than 20 percent for the Veteran's left ankle disability are not met, and an increased rating is not warranted. REASONS FOR REMAND 4. Entitlement to service connection for a neck disability Initially, the Board has previously requested that the Veteran submit authorization to VA to obtain chiropractic records for treatment reported in 1999 and/or 2000. On February 2018 the Veteran reported the loss of a lot of paperwork associated with Hurricane Katrina. He also expressed uncertainty as to whether the chiropractic practice was still open. Under such extenuating circumstances, an additional effort to obtain such private records is appropriate. The Board finds that there has not been substantial compliance with previous remand directives, and that corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The August 2018 Board remand ordered a medical opinion (with rationale) addressing whether the Veteran's neck disability was related to service (to include as the Veteran alleged related to injuries while playing football in service). On January 2021 medical opinion, the clinician opined that it was less likely than not that the Veteran's neck disability was related to service. It was noted in the question posed that the clinician was to consider the Veteran's allegation that his neck disability was related to playing football in service. Notably, the clinician indicates that the Veteran's STRs do not have any record of any neck condition, neck injury, or recurrent neck pain. However, such opinion does not consider the Veteran's allegation that his neck disability was related to playing football in service. Accordingly, a new opinion that considers the Veteran's allegation that his neck disability is related to football is necessary. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for VA to obtain private treatment records from any private chiropractors with whom he sought treatment in New Orleans in 1999 and/or 2000, or to submit such records to VA directly. 2. Arrange for the Veteran's record to be forwarded to an appropriate clinician to determine the etiology of his current neck disability. On review of the record (and acknowledgement of the Veteran's lay statements that his neck disability was related to playing football in service), the clinician should respond to the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's neck disability is related to the Veteran's service? (to include the Veteran's allegation of injuries caused by football) (b.) If the Veteran's neck disability is determined to be unrelated to service, the clinician must identify the etiology that is more likely and explain why that is so. The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.