Citation Nr: 1736561	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  97-29 539	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to a disability evaluation in excess of 40 percent for degenerative disc disease and arthritis of the lumbar spine (herein low back disability). 

2.  Entitlement to a disability evaluation in excess of 10 percent for bilateral pes planus. 

3.  Entitlement to a disability evaluation in excess of 10 percent for a right shoulder disability. 

4.  Entitlement to a disability evaluation in excess of 10 percent for a right ankle disability. 

5.  Entitlement to a disability evaluation in excess of 10 percent for a left ankle disability. 

6.  Entitlement to a disability evaluation in excess of 10 percent for radiculopathy of the right lower extremity. 

7.  Entitlement to a disability evaluation in excess of 10 percent for radiculopathy of the left lower extremity. 

8.  Entitlement to a compensable disability evaluation for a gastrointestinal disability, to include gastroesophageal reflux disorder (GERD) and hiatal hernia. 

9.  Entitlement to service connection for sleep apnea. 

10.  Entitlement to service connection for diabetes mellitus. 

11.  Entitlement to an effective date earlier than November 14, 2012, for the grant of service connection for right shoulder disability.

12.  Entitlement to an effective date earlier than June 12, 2013, for the grant of service connection for radiculopathy of the right lower extremity.

13.  Entitlement to an effective date earlier than June 12, 2013, for the grant of service connection for radiculopathy of the left lower extremity.

14.  Entitlement to an effective date earlier than March 7, 1996, for the grant of service connection for left ankle disability.

15.  Entitlement to an effective date earlier than March 7, 1996, for the grant of service connection for evaluation for a gastrointestinal disability, to include gastroesophageal reflux disorder (GERD) and hiatal hernia.  


REPRESENTATION

Appellant represented by:	Sean A. Ravin, Attorney at Law




WITNESS AT HEARING ON APPEAL

Veteran
 

ATTORNEY FOR THE BOARD

A.Lech, Counsel 


INTRODUCTION

The Veteran had active duty from August 1982 to January 1993.

This case has a procedurally complicated history; it is broken down below.

Back Disability and Bilateral Foot Disability

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 1996 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that, in pertinent part, denied the Veteran's claims for increased ratings for a back disability and a bilateral foot disability.

The Veteran filed his claim for both disabilities in January 1993.  A March 18, 1993 rating decision granted both disabilities at 10 percent disabling, effective January 1, 1993.  The Veteran filed a claim for increased ratings on March 25, 1994.  A May 1995 rating decision continued both ratings at 10 percent.  Another rating decision was issued in December 1995, which continued the bilateral foot disability at 10 percent but increased the back disability to 20 percent.  The Veteran filed a notice of disagreement (NOD) in March 1996.  A September 1996 rating decision confirmed both ratings.  The Veteran filed another NOD in September 1996.  A statement of the case (SOC) was issued in October 1996, and continued both ratings.   
In September 1997, the Veteran perfected a timely appeal and requested a Travel Board hearing, which was subsequently held in June 1998 before a Veterans Law Judge (VLJ) who is no longer employed by the Board.  A transcript of the hearing is of record.  In a letter dated in April 2013, the Veteran was notified that the VLJ who conducted the June 1998 Board hearing was no longer employed by the Board and that the Veteran had the right to another Board hearing.  The Veteran was given 30 days to respond.  As no response was received, the Board assumes that the Veteran does not desire another Board hearing. 

In February 1999, the Board remanded the Veteran's claims for additional development.  In an August 2002 rating decision, the RO increased the Veteran's back disability rating to 40 percent disability rating (effective July 31, 1996) and continued the foot disability rating at 10 percent.  The Veteran filed another NOD in January 2003.  

In March 2003, the Board denied the Veteran's claims for increased ratings for a low back disability with degenerative arthritis and disc disease (back disability) and for bilateral pes planus (foot disability).  The Veteran appealed this decision to the United States Court of Appeals for Veterans' Claims (Court).  The Court vacated the Board's March 2003 decision and remanded the matter in a July 2005 order, which VA subsequently appealed to the United States Court of Appeals for the Federal Circuit (Federal Circuit) in October 2005.  The Federal Circuit subsequently acted upon this matter and the issues were once again before the Board for adjudication in accordance with the July 2005 Court order.

The AOJ issued a rating decision in February 2006, continuing the back disability rating at 40 percent and the foot disability rating at 10 percent.  In August 2015, the Board remanded the Veteran's claims for further development.  A supplemental statement of the case (SSOC) was issued in July 2014, and continued both disability ratings.  The Board remanded the claims once again in December 2015.  The most recent SSOC on the above claims was issued on November 25, 2016.  The claims are once again before the Board.


Right Shoulder Disability

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that, in pertinent part, granted the right shoulder disability at 10 percent disabling.

The Veteran filed his claim for a right shoulder disability in January 1993.  The AOJ issued a rating decision in March 1993, denying the claim due to lack of a diagnosis of a right shoulder disability.  

The Veteran filed a claim to reopen the claim for a right shoulder disability in March 1996.  A September 1996 decision denied the claim, as no new and material evidence has been received to reopen it.  The Veteran filed another claim to reopen on November 14, 2012.  A February 2014 rating decision granted entitlement to a right shoulder disability at 10 percent disabling, effective November 14, 2012.  (The grant was based on the fact that the Veteran was diagnosed with chronic right shoulder strain in 2014.)  The Veteran filed an NOD in March 2014.  An SOC was issued in September 2015, continuing the 10 percent disability rating.  The Veteran perfected his appeal to the Board in September 2015.  

In June 2015, the Veteran asserted that he wished to seek an earlier effective date prior to November 14, 2012, for his right shoulder disability rating.  The September 2015 rating decision denied an earlier effective date, stating that the earliest effective date the claim could be granted was November 14, 2012, the date VA received the Veteran's statement to reopen his claim.  The Veteran appealed to the Board in September 2015.      

Right Ankle Disability and Left Ankle Disability

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

The Veteran filed his claim for a bilateral ankle disability in January 1993.  A March 1993 rating decision denied the claims, as there were no diagnoses of ankle disabilities.  

The Veteran refiled the claims on March 7, 1996.  A September 1996 decision denied the claims to reopen.  The Veteran filed an NOD in September 1996.  The AOJ issued an SOC in October 1996, denying service connection for an ankle disability.  The Veteran perfected his appeal in September 1997.  The Board remanded the claims in February 1999.    

In September 1997, the Veteran perfected a timely appeal and requested a Travel Board hearing, which was subsequently held in June 1998 before a Veterans Law Judge (VLJ) who is no longer employed by the Board.  A transcript of the hearing is of record.  In a letter dated in April 2013, the Veteran was notified that the VLJ who conducted the June 1998 Board hearing was no longer employed by the Board and that the Veteran had the right to another Board hearing.  The Veteran was given 30 days to respond.  As no response was received, the Board assumes that the Veteran does not desire another Board hearing. 

The AOJ issued a rating decision in August 2002 denying service connection for the Veteran's ankles.  The Veteran filed an NOD in January 2003.  The Board remanded the issues again in December 2005.  An SSOC was issued in November 2006, confirming the denial of service connection.  The Board issued a decision in June 2007, denying service connection.  

The Veteran appealed the denial to the Court.  The Court issued a Joint Motion for Remand (JMR) in June 2008, and the Court vacated the June 2007 Board decision and remanded the issues back to the Board.  The Board remanded the claims in September 2008.  In a January 2009 SSOC, service connection for the claims was denied.  The Board remanded the issues once again in August 2009.  An October 2009 SSOC denied service connection for a left ankle disability, and deferred the issue of service connection for a right ankle disability. 

A November 2009 rating decision granted service connection for a right ankle disability, with an evaluation of zero percent effective March 7, 1996, and with an evaluation of 10 percent effective September 27, 2006.  

The Veteran expressed disagreement with the rating decision in December 2009, and stated that he wished to receive a 10 percent disability rating effective at some point in 1995.  A February 2010 SOC denied a rating higher than 10 percent, and denied an earlier effective date for service connection.  The Veteran filed an appeal to the Board in March 2010.

A January 2011 Board decision denied service connection for a left ankle disability.  It also denied entitlement to an initial rating in excess of zero percent from March 3, 1996, and in excess of 10 percent from September 27, 2006. 

The Veteran appealed to the Court.  In an October 2012 decision, the Court vacated the Board's January 2011 decision as to the grant of service connection for a left ankle disability.  The decision left the right ankle decision undisturbed.      

An August 2013 Board decision granted service connection for a left ankle disability.  A July 2014 rating decision promulgated the Board decision, assigning a 10 percent disability effective March 7, 1996.  The Veteran filed an NOD with the rating in September 2014.  

A February 2014 rating decision continued the evaluation of a right ankle disability at 10 percent.  The Veteran filed an NOD in March 2014.  The AOJ issued an SOC in September 2015, continuing the 10 percent disability rating for the right ankle.  The Veteran filed an appeal to the Board in September 2015.  

Radiculopathy of the Lower Extremities

A June 12, 2013 VA examination found that the Veteran experienced radiculopathy of the lower extremities secondary to the service-connected back disability.

The July 2014 rating decision granted the Veteran an increase from zero percent to 10 percent disabling for the disability.  In reality, the RO granted the Veteran service connection for the disability separately from his back disability.  Prior to June 12, 2013, radiculopathy of the lower extremities was included as a symptom of the back disability.  Since June 12, 2013, the RO determined that the radiculopathy required a separate evaluation as it was worsening, and it deserved its own rating (which it was assigned in the July 2014 rating decision).  

The Veteran filed an NOD in October 2014, stating that he disagreed both with the rating assigned and the effective dates assigned.  The SOC issued in September 2015 continued the 10 percent evaluation.  The Veteran filed a formal appeal to the Board in September 2015.     
           
Gastrointestinal Disability

The Veteran filed a claim for service connection for a gastrointestinal disability in January 1993.  A March 1993 rating decision denied the claim, on the basis that the Veteran did not have a diagnosis of a gastrointestinal disorder.  

The Veteran filed to reopen the claim in March 1996.  A September 1996 rating decision denied the request to reopen, on the basis that no new and material evidence was submitted.  The Veteran filed an NOD in September 1996.  The RO issued an SOC in October 1996 confirming the denial.   

In September 1997, the Veteran perfected a timely appeal and requested a Travel Board hearing, which was subsequently held in June 1998 before a Veterans Law Judge (VLJ) who is no longer employed by the Board.  A transcript of the hearing is of record.  In a letter dated in April 2013, the Veteran was notified that the VLJ who conducted the June 1998 Board hearing was no longer employed by the Board and that the Veteran had the right to another Board hearing.  The Veteran was given 30 days to respond.  As no response was received, the Board assumes that the Veteran does not desire another Board hearing. 

The Board remanded the issue in February 1999.  An August 2002 rating decision denied reopening the claim.  A March 2003 Board decision reopened the claim, and then denied the substantive service connection claim.  The Veteran appealed to the Court.  An August 2005 Court decision vacated the Board's March 2003 decision and remanded the claim.

The Board remanded the claim again in August 2013.  A July 2014 rating decision granted service connection for a gastrointestinal disability at 0 percent (noncompensable) disabling, effective March 7, 1996.  The Veteran filed an NOD in October 2014.  The AOJ issued an SOC in September 2015, continuing the noncompensable rating and denying an earlier effective date for the claim.  The Veteran perfected his appeal in September 2015.        

Sleep Apnea and Diabetes Mellitus

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that, in pertinent part, denied the Veteran's claims for service connection for sleep apnea and diabetes mellitus.

The Veteran filed his claim for entitlement to service connection for diabetes mellitus in September 1997.  The RO never adjudicated the claim, and the Board referred it to the RO for adjudication repeatedly in February 1999, March 2003, and September 2008.  A February 2014 rating decision denied service connection.  The Veteran filed an NOD in March 2014.  The RO issued an SOC in September 2015.  The Veteran filed a substantive appeal in a September 2015 Form 9 (formal appeal to the Board).  
   
The Veteran filed his claim for entitlement to service connection for sleep apnea in November 2012.  The RO denied the claim in a February 2014 rating decision.  The Veteran filed an NOD in March 2014.  The RO issued a SOC in September 2015.  The Veteran filed a substantive appeal in a September 2015 Form 9 (formal appeal to the Board).  
  
The issues of entitlement to a disability evaluation in excess of 40 percent for a low back disability; entitlement to a disability evaluation in excess of 10 percent for a right shoulder disability; entitlement to a disability evaluation in excess of 10 percent for a right ankle disability; entitlement to a disability evaluation in excess of 10 percent for a left ankle disability; and entitlement to a disability evaluation in excess of 10 percent for bilateral pes planus are REMANDED to the AOJ.


FINDINGS OF FACT

1.  The Veteran's radiculopathy of the right and left lower extremities have been manifested by, at most, "moderate" incomplete paralysis of the sciatic nerve.

2.  The Veteran's GERD was manifested by the need for medication and avoidance of certain foods, and pyrosis, but not by persistently recurrent epigastric distress with dysphagia and regurgitation, accompanied by substernal or arm or shoulder pain and productive of considerable impairment of health.

3.  Obstructive sleep apnea was not present during the Veteran's period of active duty or for several years thereafter; and, the preponderance of the evidence fails to establish that the Veteran's diagnosed obstructive sleep apnea is related to his active service. 

4.  Diabetes mellitus was not present during the Veteran's period of active duty or for several years thereafter; and, the preponderance of the evidence fails to establish that the Veteran's diagnosed diabetes mellitus is related to his active service.

5.  The date of November 14, 2012, is the earliest possible effective date for the award of service connection for right shoulder disability. 

6.  The date of June 12, 2013, is the earliest possible effective date for the award of service connection for radiculopathy of the right lower extremity

7.  The date of June 12, 2013, is the earliest possible effective date for the award of service connection for radiculopathy of the left lower extremity.

8.  The date of March 7, 1996, is the earliest possible effective date for the award of service connection for left ankle disability.

9.  The date of March 7, 1996, is the earliest possible effective date for the award of service connection for a gastrointestinal disability, to include gastroesophageal reflux disorder (GERD) and hiatal hernia.  


CONCLUSIONS OF LAW

1.  The criteria for a rating of 20 percent for radiculopathy of the right lower extremity have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.123, 4.124, 4.124a, Diagnostic Codes 8517, 8520 (2016).

2.  The criteria for a rating of 20 percent for radiculopathy of the left lower extremity have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.123, 4.124, 4.124a, Diagnostic Codes 8517, 8520 (2016).

3.  The criteria for a compensable rating for GERD have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.114, Diagnostic Code 7399-7346 (2016).

4.  The criteria for service connection for sleep apnea have not been met.  38 U.S.C.A. §§1101, 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016).
   
5.  The criteria for service connection for diabetes mellitus have not been met.  38 U.S.C.A. §§1101, 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016).

6.  An effective date earlier than November 14, 2012 for the grant of service connection for right shoulder disability is not warranted.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.156, 3.157, 3.400 (2016).
7.  An effective date earlier than June 12, 2013 for the grant of service connection for radiculopathy of the right lower extremity is not warranted.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.156, 3.157, 3.400 (2016).

8.  An effective date earlier than June 12, 2013 for the grant of service connection for radiculopathy of the left lower extremity is not warranted.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.156, 3.157, 3.400 (2016).

9.  An effective date earlier than March 7, 1996, for the grant of service connection for left ankle disability is not warranted.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.156, 3.157, 3.400 (2016).

10.  An effective date earlier than March 7, 1996 for the grant of service connection for evaluation for a gastrointestinal disability, to include GERD and hiatal hernia, is not warranted.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.156, 3.157, 3.400 (2016).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Increased Ratings 

The Veteran is appealing the assignments of disability evaluations following awards of service connection.  In such a case it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes.               38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016).  If two evaluations are potentially applicable, 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.  38 C.F.R. § 4.7 (2016). 

The words "slight," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6 (2016).  It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2016).

In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion.  The Court specifically discounted the notion that the highest disability ratings are warranted under DCs 5261 and 5261 where pain is merely evident as it would lead to potentially "absurd results."  Id. at 10-11 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)).

Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). 

Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint.  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996).

Radiculopathy of the Lower Extremities

The Veteran maintains that his service-connected right and left lower extremity radiculopathy disabilities are more severe than what is contemplated by the 
currently assigned 10 percent rating. 

The RO has rated that Veteran's lower extremity radiculopathy under Diagnostic Code 8520 for sciatic nerve disability.  Under this Diagnostic Code, a 10 percent rating is warranted for mild incomplete paralysis, 20 percent for moderate incomplete paralysis, 40 percent for moderately severe incomplete paralysis, 60 percent for severe incomplete paralysis with marked muscular atrophy, and 80 percent for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee and flexion of knee weakened or (very rarely) lost.  38 C.F.R. § 4.124a (2016).

The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a (2016).

Complete paralysis of the sciatic nerve is indicated when the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.  38 C.F.R. § 4.124a, Diagnostic Code 8520 (2016).

A June 12, 2013, VA examination found that the Veteran experienced radiculopathy of the lower extremities secondary to the service-connected back disability.  The July 2014 rating decision granted the Veteran an increase from zero percent to 10 percent disabling for the disability.  In reality, the RO granted the Veteran service connection for the disability separately from his back disability.  Prior to June 12, 2013, radiculopathy of the lower extremities was included as a symptom of the back disability, as part of the 40-percent rating the Veteran received for that disability.  Since June 12, 2013, the RO adjudicated that the radiculopathy needed a separate evaluation as it was worsening.  

As mentioned, the Veteran underwent a VA examination in June 2013 for his back disability.  As part of the findings related to his back, the examiner opined that the Veteran experienced radiculopathy (indicated by a positive straight leg raising test), that he was in moderate constant pain of both lower extremities, that he had moderate paresthesias and/or dysesthesias (abnormal sensations) of both lower extremities, and moderate numbness of both lower extremities.  Upon physical examination, lower extremity strength was 4/5 throughout.  Bilateral lower extremity sensation to light touch was also intact.  The Veteran had no other signs or symptoms of radiculopathy.  The examiner related that the Veteran's sciatic nerve was involved, and the severity of the radiculopathy was opined to be moderate.  There was no paralysis noted.       

The Veteran underwent another back examination in December 2013.  The Veteran told the examiner that he had shooting pains at the back of his legs daily, and he rated his pain level on "bad days" as 12/10.  He reported using narcotics daily, and stated that they did not control his pain.  Upon physical examination, lower extremity strength was 4/5 throughout.  Bilateral lower extremity sensation to light touch was also intact.  The examiner noted that the Veteran was in moderate constant pain of both lower extremities, that he had moderate paresthesias and/or dysesthesias (abnormal sensations) of both lower extremities, and moderate numbness of both lower extremities.   The Veteran had no other signs or symptoms of radiculopathy.  The examiner noted that a diagnosis of radiculopathy was given based on the subjective symptoms reported by the Veteran, despite negative objective findings at the examination.        

The Veteran underwent another VA examination of his back in April 2016.  Upon physical examination, lower extremity strength was 4/5 throughout.  Bilateral lower extremity sensation to light touch was also intact.   The Veteran had no muscle atrophy.    

A May 2015 VA treatment note indicated that the Veteran experienced pain that "goes down the legs from the back."  Otherwise, the Veteran's treatment records are silent regarding his radiculopathy of the lower extremities.  The Veteran reported experiencing mild constant pain and moderate intermittent pain.  The examiner noted that the Veteran had mild paresthesias and/or dysesthesias, and no numbness.  The examiner noted that the Veteran experienced radiculopathy of mild severity bilaterally.  

Based on the evidence of record, the Board finds that the evidence does not show more than moderate symptoms associated with the Veteran's bilateral lower extremity radiculopathy.  The evidence discussed above shows that the Veteran's symptoms were, at worst, moderate.  The evidence does not show moderately severe incomplete paralysis, any muscular atrophy (the Veteran's muscle strength has consistently been 4/5, almost normal), complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee and flexion of knee weakened.  In addition, bilateral lower extremity sensation to light touch was also intact.  Accordingly, ratings of 20 percent, but not higher, for the right and left lower extremity radiculopathy disabilities are warranted.

GERD

The Veteran contends that he is entitled to an initial compensable rating for his service-connected GERD. 

A July 2014 rating decision granted service connection for a gastrointestinal disability at 0 percent (noncompensable) disabling, effective March 7, 1996, the date the Veteran filed his claim.   

The Veteran's GERD has been assigned a noncompensable evaluation under 38 C.F.R. § 4.114, Diagnostic Code 7399-7346.  38 C.F.R. § 4.27 (2016).  

Accordingly, the hyphenated diagnostic code used in this case indicates that a digestive disorder under Diagnostic Code 7399 is the service-connected disorder.  The GERD is rated by analogy to hiatal hernia, under Diagnostic Code 7399-7346.
Under Diagnostic Code 7346, a 10 percent rating is warranted when there are two or more of the symptoms for the 30 percent evaluation of less severity.  A 30 percent disability evaluation is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain and productive of considerable impairment of health.  A 60 percent evaluation is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health.

Dysphagia is defined as difficulty in swallowing.  Dorland's Illustrated Medical Dictionary, 587 (31st ed. 2007).  Pyrosis is defined as heartburn.  Id. at 1587.  Hematemesis is defined as the vomiting of blood.  Id. at 842.  Melena is defined as the passage of dark-colored feces stained with blood pigments or with altered blood.  Id. at 1142.

The Veteran underwent a VA examination in August 2011.  He reported to the examiner that he experienced heartburn for seven years, and related that he had diarrhea and vomited blood.  His physical examination and a UGI (a radiological examination of the esophagus, stomach, and small intestine) were normal.  

The Veteran underwent another VA examination in December 2013.  The examiner diagnosed GERD, and opined that the Veteran's condition was related to his active service.  The Veteran told the examiner that he experienced acid reflux and pyrosis (heartburn).    

VA treatment records from April 1996 showed a diagnosis of GERD and heartburn, as well as a positive UGI, and from July 1996 showed moderately severe esophagitis.  Records from that point on continued a diagnosis of GERD and complaints of heartburn.  The Veteran related that his GERD was bad "once in a while."  See June 1998 VA treatment notes.  The records also show that the Veteran was obese, consumed large quantities of alcohol, smoked, and was not complaints with his medications, including GERD medications and noncompliant with the diet recommended for his gastrointestinal disorder.  See, for example, June 1997, June 1998 VA treatment records.  There was no mention of GERD or heartburn/acid reflux from 1998 to May 2014, when, once again, the Veteran reported that he had a history of the disorder.  GERD does not appear on the Veteran's list of chronic problem in his VA treatment records.    

Social Security Administration (SSA) records showed evidence of gastroesophageal reflux and a small hiatal hernia.  

In this case, the clinical evidence does not establish persistently recurrent epigastric distress with dysphagia, and regurgitation, accompanied by substernal or arm or shoulder pain and productive of considerable impairment of health, either individually or in concert.  While the Veteran repeatedly reported pyrosis, the VA examinations did not report any dysphagia, epigastric pain, no hematemesis or melena, regurgitation, and no nausea or vomiting.  The record shows that the Veteran reported diarrhea and vomiting blood to his August 2011 VA examiner, his GI examination was normal and there were no objective findings of such problems (this was also the only time the Veteran reported such symptoms).  In sum, there is simply no evidence to suggest that a compensable rating is warranted at any time during the pendency of this appeal.

The Board has considered the Veteran's statements, both in writing and at his hearing, regarding the symptoms of his GERD.  The Veteran's statements are competent evidence as to the symptoms of his GERD as this comes to him through his senses.  Moreover, his statements are credible to the extent that they are consistent with the medical evidence of the record.  However, his statements are not competent evidence as to a specific level of disability according to the appropriate diagnostic codes.  See Robinson v. Shinseki, 557 F.3d 1355 (2009).  Evidence concerning the nature and extent of the Veteran's GERD has been provided by the medical personnel who have examined him at various times during the current appeal and who have rendered pertinent opinions in conjunction with the physical evaluations.  The medical findings as provided in the examination reports directly address the criteria under which this type of disability is evaluated.  The Board, therefore, finds the medical findings to be of a greater probative value as to the current severity of the Veteran's GERD than his statements.

For the reasons stated above, the presently assigned noncompensable rating for GERD is appropriate.  38 C.F.R. § 4.114, Diagnostic Code 7399-7346 (2016).  The medical evidence does not establish that an increase is warranted at any time period during the Veteran's appeal.  Fenderson, 12 Vet. App. at 126.

Extraschedular Consideration

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 
28 Vet. App. 366, 369-7 (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).

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, the Veteran has been in receipt of TDIU since 2005, so Rice is inapplicable.

II. Service Connection 

Sleep Apnea and Diabetes Mellitus

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2014).  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.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Certain chronic diseases are subject to presumptive service connection if they manifest to a compensable degree within one year from separation from service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2016). 

Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Here, the Board notes that the Veteran is not entitled to presumptive service connection for his obstructive sleep apnea, as it is not considered a chronic disease for purposes of 38 C.F.R. § 3.303 (b).  See C.F.R. § 3.309 (a) (2016). 

Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303 (d) (2016). 

Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact.  The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied.  38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's service treatment records (STRs) do not show any complaints of, issues with, or diagnoses of sleep apnea or diabetes mellitus.   

Medical records from September 2004 show that the Veteran had a sleep study done in 2003, was using a CPAP mask, and was sleeping well at night.  December 2003 post-sleep study notes sleep study showed an impression of obstructive sleep apnea, daytime hypersomnolence and obesity.  Therefore, the Veteran was diagnosed with sleep apnea more than 10 years after he separated from active service.  The physician noted that the Veteran's daytime hypersomnolence could be due to the medications he was taking for various health issues, and that he needed to lose weight.  No other etiology was given for the Veteran's sleep apnea. 

The Veteran's treatment records are negative for a diagnosis of diabetes mellitus until 1996.  Records from 1995 to 1996 specifically denied the presence of diabetes, and only noted that the Veteran had a family history of diabetes.  Medical records from May 1996 to September 1996 indicated "possible DM" (possible diabetes mellitus).  Records from September 1996-on stated "diabetic - yes," presumably relating that the Veteran was diagnosed with diabetes at that point.  The Veteran was then diagnosed with diabetes in or around September 1996 (almost four years after he separated from active service).  His records showed obesity from at least 1995-on, and a treating physician also noted that the Veteran's diabetes was due to obesity.  See September 29, 2008, VA treatment note. 

After a review of the record, the Board concludes that entitlement to service connection for a sleep apnea and diabetes mellitus is not warranted.  While the Veteran has diagnoses of the conditions, meeting element (1) of Shedden, the competent and probative evidence of record does not demonstrate a nexus between the sleep apnea and diabetes mellitus and his active service, or any of his service-connected disabilities.  The Veteran's STRs are absent of any complaints or findings related to any sleep apnea or diabetes mellitus issues.  His current sleep apnea and diabetes mellitus disorders have been shown to be the result of his obesity and family history, and not anything he experienced in active service.   

Further, as indicated, the record includes medical treatment records speaking to the etiology of the disorders at issue.  None of the physicians has found any relationship between the Veteran's active service and the post-service diagnoses of sleep apnea and diabetes mellitus.  To the contrary, medical records have reported that the Veteran's sleep apnea and diabetes mellitus were both due to his obesity.

As such, the Veteran's claims for service connection for sleep apnea and diabetes mellitus fail.  The Veteran's diagnosed disorders cannot be attributed to his active service.  In the absence of proof of a present disorder that is connected to service, the claim cannot be granted.  This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a Veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the Veteran's service and the disability."  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). 

The Board has considered the Veteran's lay statements in support of his claims. Although laypersons are competent to provide opinions on some medical issues, as to the specific issue in this case, diagnosing current sleep apnea and diabetes mellitus and their etiologies, these issues fall outside the realm of common knowledge of a layperson.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (laypersons not competent to diagnose cancer).  As a layperson, the Veteran has not been shown to possess the medical expertise to diagnose such complex medical issues as sleep apnea and diabetes mellitus and their etiologies.  The claims file does not contain any medical records linking the Veteran's disorders to his active service.  To the contrary, medical records tie the said disorders to the Veteran's obesity.  In sum, there is no evidence, medical or otherwise, to support the Veteran's assertions.  Thus, as previously stated, the medical evidence of record is only against the Veteran's service connection claims.

Accordingly, service connection for sleep apnea and diabetes mellitus is not warranted because the Veteran has not satisfied the second requirement of service connection, i.e. a nexus to active service.  See 38 C.F.R. § 3.303 (2016).   In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claims, that doctrine does not apply.  38 U.S.C.A. § 5107 (b) (West 2014).  The claims of entitlement to service connection for sleep apnea and diabetes mellitus are denied.

III. Earlier Effective Dates

The Veteran seeks an earlier effective date for several of his already service-connected disabilities.  He seek entitlement to an effective date earlier than November 14, 2012 for the grant of service connection for right shoulder disability; an effective date earlier than June 12, 2013 for the grant of service connection for radiculopathy of the right lower extremity; an effective date earlier than June 12, 2013 for the grant of service connection for radiculopathy of the left lower extremity; an effective date earlier than March 7, 1996 for the grant of service connection for left ankle disability; an effective date earlier than March 7, 1996 for the grant of service connection for gastrointestinal disability.

The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a)-(b)(1); 38 C.F.R. § 3.400 (b)(2).

Under VA laws and regulations, a specific claim in the form prescribed by the VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C.A. § 5101 (a); 38 C.F.R. § 3.151 (a).  Any communication or action indicating intent to apply for one or more benefits under laws administered by the VA, and identifying the benefits sought, may be considered an informal claim. 38 C.F.R. § 3.155 (a).

The provisions of 38 U.S.C.A. § 5101 (a) mandate that a claim must be filed in order for any type of benefit to accrue or be paid.  See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998).  Further, the mere presence of medical evidence in the record does not establish intent on the part of the Veteran to seek service connection for the benefit in question.  Brannon v. West, 12 Vet. App. 32, 34-5 (1998).  While the Board must interpret the Veteran's submissions broadly, the Board is not required to conjure up issues that were not raised by the Veteran.  Id.
The word "claim" includes a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1 (p) (2016); Brannon v. West, 12 Vet. App. 32, 34-35   (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  Any communication or action indicating intent to apply for one or more benefits under laws administered by VA from a Veteran may be considered to be an informal claim.  Such an informal claim must identify the benefits sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  38 C.F.R. § 3.155 (a) (2016).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

In this regard, VA may not pay a benefit before a claim is made.  38 U.S.C.A. § 5101 (West 2014); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) (stating that "[38 U.S.C.A. §] 5101 is a clause of general applicability and mandates that a claim must be filed in order for any type of benefits to . . . be paid under the laws administered by the Secretary.")  The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Lalonde v. West, 12 Vet. App. 377, 382 (1999); Brannon v. West, 12 Vet. App. 32, 35 (1998).  More specifically, a medical examination report is only considered an informal claim for an increase in disability benefits if service connection has already been established for the disability.  MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. § 3.157 (b)(1) (medical records can serve as informal claim "when such reports relate to examination or treatment of a disability for which service-connection has previously been established").  Likewise, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition.  Crawford v. Brown, 5 Vet. App. 33, 35 (1995); KL v. Brown, 5 Vet. App. 205, 208 (1993). 

Following a review of the pertinent evidence of record in light of the above-cited legal authority, the Board finds that earlier effective dates for service connection of the Veteran's claims are legally precluded.

In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Right Shoulder Disability

Turning to the facts in the instant case, the Veteran initially submitted a claim for service connection for a right shoulder disability in January 1993.  A March 1993 rating decision denied the claim due to lack of a diagnosis of a right shoulder disability.  

The Veteran filed a claim to reopen the claim for a right shoulder disability in March 1996.  A September 1996 decision denied the claim, as no new and material evidence has been received to reopen it - the Veteran still did not have a diagnosis of a right shoulder disorder.  The Veteran filed another claim to reopen on November 14, 2012.  A February 2014 rating decision granted entitlement to a right shoulder disability at 10 percent disabling, effective November 14, 2012.  The grant was based on the fact that the Veteran was diagnosed with chronic right shoulder strain in 2014 - he now had a diagnosis for which VA could grant him service connection.   

The Veteran asserts that the effective date for his claim should be prior to November 14, 2012.  The Board disagrees.

The Board concludes that the date on which the Veteran initially filed his claim for service connection is not relevant in the present context.  This is so because a date of entitlement earlier than the current effective date could not result in an earlier date; as noted above, the effective date will be the date of receipt of a claim to reopen or the date entitlement arose, whichever is the later.  In this case, November 14, 2012 - the date of receipt of the application to reopen - is the earliest date that service connection may be awarded.  Because the AOJ denied the Veteran's initial claims in a March 1993 decision that had become final (in March 1994), the date of filing of that claim, or any prior claim, is not applicable to the assignment of an effective date in this case.  

In sum, the Veteran's most recent claim for service connection for a right shoulder disability was received on November 14, 2012.  A review of the post-service treatment records and examination shows that the earliest evidence reflecting a diagnosis of right shoulder strain was the January 2014 VA examination.  Before that date, the Veteran did not have a diagnosis of a right shoulder - there was nothing to service-connect before that. 

Accordingly, an effective date earlier than November 14, 2012, the date that the Veteran refiled his claim for service connection, must be denied.

Radiculopathy of the Lower Extremities

The Veteran never actually submitted a claim for service connection for radiculopathy of the lower extremities.  Instead, a June 12, 2013 VA examination found that the Veteran experienced radiculopathy of the lower extremities secondary to the service-connected back disability.

As a result of that examination, the July 2014 rating decision granted the Veteran a 10 percent disabling rating for the disability.  In reality, in this decision the RO granted the Veteran service connection for the radiculopathy of the lower extremities separately from his back disability.  Prior to June 12, 2013, radiculopathy of the lower extremities was included as a symptom of the back disability.  Since June 12, 2013, the RO adjudicated that the radiculopathy needed a separate evaluation as it was worsening.  

As such, the June 2013 VA examination report was considered an informal claim for an increase in disability benefits if service connection has already been established for the disability.  MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. § 3.157 (b)(1) (medical records can serve as informal claim "when such reports relate to examination or treatment of a disability for which service-connection has previously been established").  As a result of that VA examination, the RO separated out the Veteran's radiculopathy of the lower extremities from the back disability (of which it was previously a part), essentially turning the radiculopathy from a non-compensable rating (as it was encompassed in the back disability rating) to its separate 10 percent rating.  The June 12, 2013 VA examination report was the earliest date that entitlement arose.

Accordingly, an effective date earlier than June 12, 2013, the date that the Veteran's entitlement arose, must be denied.


Left Ankle Disability

The Veteran submitted a claim for service connection for a left ankle disability in January 1993.  A March 1993 rating decision denied the claim, as there was no diagnosis of a left ankle disability.  The Veteran refiled the claims on March 7, 1996.  After year of procedural back and forth, an August 2013 Board decision granted service connection for a left ankle disability.  A July 2014 rating decision promulgated the Board decision, assigning a 10 percent disability effective March 7, 1996.   

The Veteran asserts that the effective date for his claim should be prior to March 7, 1996.  The Board disagrees.

The Board concludes that the date on which the Veteran initially filed his claim for service connection is not relevant in the present context.  This is so because a date of entitlement earlier than the current effective date could not result in an earlier date; as noted above, the effective date will be the date of receipt of a claim to reopen or the date entitlement arose, whichever is the later.  In this case, March 7, 1996 - the date of receipt of the application to reopen - is the earliest date that service connection may be awarded.  Because the AOJ denied the Veteran's initial claims in a March 1993 decision that had become final (in March 1994), the date of filing of that claim, or any prior claim, is not applicable to the assignment of an effective date in this case.  

In sum, the Veteran's most recent claim for service connection for a left ankle disability was received on March 7, 1996.  Accordingly, an effective date earlier than March 7, 1996, the date that the Veteran refiled his claim for service connection, must be denied.

GERD

The Veteran submitted a claim for service connection for a gastrointestinal disability in January 1993.  A March 1993 rating decision denied the claim, on the basis that the Veteran did not have a diagnosis of a gastrointestinal disorder.  
The Veteran filed to reopen the claim in March 1996.  Again, after years of procedural back and forth, a July 2014 rating decision granted service connection for a gastrointestinal disability at 0 percent (noncompensable) disabling, effective March 7, 1996.  

The Veteran asserts that the effective date for his claim should be prior to March 7, 1996.  The Board disagrees.

The Board concludes that the date on which the Veteran initially filed his claim for service connection is not relevant in the present context.  This is so because a date of entitlement earlier than the current effective date could not result in an earlier date; as noted above, the effective date will be the date of receipt of a claim to reopen or the date entitlement arose, whichever is the later.  In this case, March 7, 1996 - the date of receipt of the application to reopen - is the earliest date that service connection may be awarded.  Because the AOJ denied the Veteran's initial claims in a March 1993 decision that had become final (in March 1994), the date of filing of that claim, or any prior claim, is not applicable to the assignment of an effective date in this case.  

In sum, the Veteran's most recent claim for service connection for GERD/gastrointestinal disability was received on March 7, 1996.  Accordingly, an effective date earlier than March 7, 1996, the date that the Veteran refiled his claim for service connection, must be denied.


ORDER

Entitlement to a disability evaluation of 20 percent, but not higher, for radiculopathy of the right lower extremity is granted.
    
Entitlement to a disability evaluation of 20 percent, but not higher, for radiculopathy of the left lower extremity is granted.   

Entitlement to a compensable disability evaluation for a gastrointestinal disability, to include GERD, is denied.

Entitlement to service connection for sleep apnea is denied. 

Entitlement to service connection for diabetes mellitus is denied. 

Entitlement to an effective date earlier than November 14, 2012 for the grant of service connection for right shoulder disability is denied.

Entitlement to an effective date earlier than June 12, 2013 for the grant of service connection for radiculopathy of the right lower extremity is denied.

Entitlement to an effective date earlier than June 12, 2013 for the grant of service connection for radiculopathy of the left lower extremity is denied.

Entitlement to an effective date earlier than March 7, 1996 for the grant of service connection for left ankle disability is denied.

Entitlement to an effective date earlier than March 7, 1996 for the grant of service connection for evaluation for a gastrointestinal disability, to include GERD and hiatal hernia, is denied.  


REMAND

The Board regrets the additional delay, but the below issues must once again be remanded before they are adjudicated.


Feet

First, the Veteran's attorney has asserted that the Veteran's foot disability has worsened, and he has not been afforded a VA examination for the disability since December 2013.  See December 2016 Attorney Statement.  As such, he should be afforded a new VA examination to assess the current severity of his bilateral foot disability.  See Snuffer v. 

Back 

With respect to the Veteran's low back disability claim, the AOJ did not comply with the Board's December 2015 remand directives.  An additional remand is necessary.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

The Veteran was last afforded a VA examination in April 2016, per the remand directives.  The examiner, however, did not consider the Veteran's private medical treatment records relating to a February 2015 hospitalization for his back in a private hospital.  

VA has not obtained those private records.  While VA sent the Veteran a letter in February 2016 asking him to complete and return a VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs and a VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs.  While VA has not received a response from the Veteran, it is unclear whether the Veteran received those letters, as some of the mail mailed to him has been returned.  VA should attempt to get those forms to the Veteran again.     

For reference, a February 2015 VA treatment note related that the Veteran was discharged after four days from a private hospital (CCMH) in February 2015. The note further referenced that the Veteran "states he was also having severe back pain, MRI showed bulging disc."  A March 2015 VA treatment note referenced the previously noted hospitalization and noted "abnormal [MRI]; he was consulted to neurosurgery for abnormal finding of [MRI] of lumbosac[]ral spine."  An assessment noted "lower back pain; await for neurosurgery consult result."  As such, an addendum to the April 2016 VA examination should be obtained to address the February 2015 hospitalization and its findings. 

Further, the Board notes that during the pendency of this appeal, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4, including the rating criteria for evaluating disabilities of the lumbar spine.  Effective September 23, 2002, VA revised the criteria for diagnosing and evaluating intervertebral disc syndrome.  See 67 Fed. Reg. 54345-01 (Aug. 22, 2002).  Effective September 26, 2003, VA revised the criteria for evaluating general diseases and injuries of the spine.  See 68 Fed. Reg. 51454-01 (Aug. 27, 2003).  The Board notes that the September 1996 rating decision on appeal rated the Veteran's back disability under Diagnostic Code 5295 (formerly Lumbosacral strain).  In an August 2002 rating decision, the Veteran's low back disability was rated under Diagnostic Code 5293 (formerly Intervertebral disc syndrome).  A February 2006 rating decision code sheet listed the Veteran's low back disability as being rated under Diagnostic Code 5010-5242 (Arthritis and Degenerative arthritis of the spine), but subsequent rating decision code sheets returned to the use of Diagnostic Code 5293.  Starting with a July 2014 rating decision code sheet, the AOJ listed the Veteran's back disability as being rated under Diagnostic Code 5237 (Lumbosacral or cervical strain). 

When a law or regulation (to include pertaining to the rating schedule) changes while an increased rating claim is pending, both the old and new versions must be considered.  See VAOPGCPREC 3-2000 (Apr. 10, 2000); 65 Fed. Reg. 34531-02 (May 30, 2000); see also VAOPGCPREC 7-2003 (Nov. 19, 2003); 69 Fed. Reg. 25174-02 (May 5, 2004).  However, the effective date of any rating assigned under the revised schedular criteria may not be earlier than the effective date of that change; the Board must apply only the earlier version of the regulation for the period prior to the effective date of change.  See VAOPGCPREC 3-2000; 38 U.S.C.A. § 5110 (g) (West 2014) (stating "where compensation...is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue").

The post-remand SSOC, issued in November 2016, did not consider the prior schedular criteria and appeared to evaluate the Veteran's service-connected low back disability for the entire appeal period based only on the updated September 2003 regulations.  As such, the AOJ has not evaluated the Veteran's service-connected disability with consideration of the appropriate schedular criteria in effect prior to September 2002 and September 2003.  The AOJ is, therefore, directed once again to readjudicate the Veteran's increased rating claim for his service-connected back disability with consideration of the appropriate schedular criteria, to include the schedular criteria in effect prior to September 2002 and September 2003. 

Also, as referenced above, outstanding private medical records from a private hospital (CCMH) appear to be relevant, as they referenced treatment for the Veteran's service-connected low back disability.  While on remand, pursuant to VA's duty to assist, the Veteran must be given the opportunity to submit (or provide VA a release) any relevant private medical records, to include from CCMH. See 38 C.F.R. § 3.159 (e)(2) (2015) (stating that "[i]f VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records").  

Right Shoulder 

The Veteran asserts that he is entitled to a higher disability rating for his right shoulder disability.  His disability has been evaluated at 10 percent disabling, effective November 14, 2012.  

The Veteran's VA treatment records are free of any right shoulder complaints until December 2007, where there was a mention of shoulder pain, but it was unclear which shoulder was mentioned.  In February 2011, the Veteran complained that his cane use made his shoulder hurt.  In May 2014, the Veteran reported right shoulder pain to his provider.  No other VA records speak to this issue.

The Veteran underwent a VA examination in January 2014.  The examiner diagnosed the Veteran with chronic right shoulder strain.  The Veteran told the examiner that he fell on his right shoulder in 1982, and that it has experienced pain and soreness ever since.  Upon examination, the Veteran's right shoulder flexion ended at 155 degrees, abduction at 130 degrees, and painful motion started at the same.  (Left shoulder flexion ended at 160 and abduction at 135.)  Range of motion was the same after repetitive uses.  The examiner indicated that the Veteran had less movement and weakened movement than normal, and pain on movement.  There was pain in palpation and guarding.  Muscle strength was normal, and there was no ankylosis of the shoulder joint.  There was no history of mechanical symptoms (clicking and catching) or recurrent dislocation (subluxation).  The examiner noted that the Veteran did not have any history of right shoulder surgeries or hospitalizations for the condition.    

The United States Court of Appeals for Veterans Claims (Court) has held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  The referenced portion of 38 C.F.R. § 4.59 (2016) states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint."  The prior VA examination did not comply with Correia and as such, a remand is required so that the Veteran may be afforded a new VA examination that contain adequate information pursuant to Correia.

Right Ankle Disability and Left Ankle Disability

The Veteran asserts that his ankle disabilities are more severe than contemplated by the currently-assigned 10 percent disability ratings.

The Veteran complained of ankle pain in February 1993, but x-rays were within normal limits and the Veteran did not receive a diagnosis of any ankle issues or disorders.

In August 1996, the Veteran underwent a VA examination.  The Veteran told the examiner that he had a history of bilateral ankle pain.  The examiner reported that the Veteran experienced small right plantar calcaneal spur and degenerative changes of the left ankle, but had no chronic bilateral ankle disorder.  

In VA treatment records prior to 1996, the Veteran complained of pain in his knees, hips, elbows, and neck, but did not mention any issues related to his ankles.  See December 5, 1996 treatment notes.  In September 1998, the Veteran reported bilateral ankle pain, worse in the PM.     

During his June 1998 hearing, the Veteran testified that after walking, he felt pounding pain in his ankles and his ankles were swollen by the end of the day. 

In a November 7, 2002 opinion, a physician stated that the Veteran experienced ankle issues and "worsening arthritis due to patient's inactivity/deconditioning and postural difficulties from flat feet."   

The Veteran underwent an orthopedic examination in September 2006.  The Veteran told the examiner that problems with his ankles started worsening in 1998, and that he had continuous pain in his ankles.  The Veteran related that his ankles swelled occasionally, were stiff in the morning, hurt him when he walked or stood for longer than 10 minutes, and he had to take pain medication for it.  He did not use crutches or corrective shoes, but used a cane or a wheelchair if he had to walk extensively.  Upon examination, there was no evidence of edema, effusion, instability, redness, heat, or abnormal movement, but he did have some tenderness, painful motion, and some guarding of movement.  His ankle range of motion was dorsiflexion bilaterally 0-20 degrees, plantar flexion 0-45 degrees, with pain starting at 0-18 degrees dorsiflexion and 0-42 degrees with plantar flexion.  He also had pain on palpation of both malleoli bilaterally.  Repetitive use did not cause any additional range of motion loss.    

The Veteran underwent another VA examination in November 2008.  The Veteran related that he had constant, ongoing pain in his ankles made worse by prolonged walking, standing, bending, or changing position, and relieved by resting or taking medication.  He reported that he had occasional ankle stiffness, but no swelling, heat, or redness.  He complained of fatigability and lack of endurance in all joints, and stated that he had no surgery on his ankles and was never hospitalized for any ankle problems.  Upon examination, dorsiflexion was 0-20, plantar flexion 0-40, with pain starting at 40 degrees.  There was no change of function in degrees secondary to pain, fatigue, or lack of endurance, and no laxity noted bilaterally.  There was no tenderness to palpation noted of both malleoli on the left ankle.  No significant degenerative changes were noted on the right ankle, and plantar osteophytes were noted on the calcaneus on both ankles.  The examiner diagnosed the Veteran with chronic strain of the bilateral ankles with bilateral heel spur.

The Veteran underwent another VA examination in September 2009.  The examiner opined that the Veteran's right ankle disorder was related to his active service, but did not report any physical findings.     

During an October 2009 VA examination, the Veteran reported constant throbbing pain in his right ankle, he felt numbness in the ankle, and his ankle was weak, stiff, and rolled easily.  He reported swelling with prolonged use or after rolling the ankle, with some heat but no redness associated with the swelling.  The Veteran denied any locking or instability, as well as clicking and popping.  The Veteran reported flare-ups with pain severity 10/10 occurring four-five times a day that last five-ten minutes.  The Veteran reported using a cane when he had to walk a lot, but did not wear a brace.  The Veteran stated that he used a wheelchair due to problems with multiple joints, including his right ankle.  Upon examination, there was no tenderness on palpation, a bony nodule over the malleoli that was more tender to palpation, and tenderness to palpation on the lateral malleoli.  There was no evidence of erythema, edema, increased warmth, or effusion.  Dorsiflexion was 0-20 degrees with pain at 20 degrees, plantar flexion was 0-35 degrees with pain at 30 degrees, and no additional loss of range of motion on repetition.  X-rays did not show any significant degenerative changes.  The examiner's impression was bone spur right medial malleolus with soft tissue swelling. 

The Veteran underwent a VA examination in June 2013.  X-rays of the right ankle showed slight degenerative irregularity or old fracture deformity at the medial malleolus, and no other radiographic findings.  Upon examination, right plantar flexion was 0-35 degrees (with pain at 35 degrees) and dorsiflexion was 0-15 degrees (with pain at 15 degrees).  Left ankle plantar flexion was 45 degrees or greater (with no pain) and dorsiflexion was 20 degrees or greater (with no pain).  Upon repetitive use testing, right plantar flexion was 0-35 degrees and dorsiflexion was 0-15 degrees.  Left ankle plantar flexion was 45 degrees or greater and dorsiflexion was 20 degrees or greater - there was no additional limitation.  The Veteran had pain on palpation in the right ankle, 4/5 strength in both ankles, no instability was noted, no laxity was noted, there was no ankylosis, and no other abnormalities or conditions.  The Veteran reported occasional use of a wheelchair, regular use of braces, and constant use of a cane.    

A December 2013 VA back examination noted that the plantar flexion and dorsiflexion of the Veteran's ankles were 4/5, there was no muscle atrophy, deep tendon reflexes in both ankles were normal, and sensation to light touch was normal.

The Veteran's VA treatment records show ongoing complaints of ankle pain.  See March 2, 2015 VA treatment note.  The Veteran has also reported that his ankles (and knees) "give out" and that he wears boots to make his "ankles feel more secure."  See July 2014 VA treatment note.  His ankle strength was assessed at 3/5, and he was recommended a walker and boots.  Id.      

The Court has held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  The referenced portion of 38 C.F.R. § 4.59 (2016) states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint."  The prior VA examinations did not comply with Correia and as such, a remand is required so that the Veteran may be afforded a new VA examination that contain adequate information pursuant to Correia.

In addition, the Board notes that before scheduling him for such any examinations and conducting any other further development in the case, the RO should contact the Veteran, as he may wish to withdraw his remaining claims in light of the fact that he has been adjudicated to be 100 percent disabled from June 5, 2005.

Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran to see if he wishes to proceed with his appeal, or if he wishes to withdraw the claims (in writing, please).

2. If the Veteran wishes to proceed with the increased rating claims, schedule the Veteran for an appropriate VA examination to evaluate the current severity of his service-connected right shoulder, right ankle, and left ankle disabilities.  Provide the claims file and access to the electronic file to the examiner. Request that the examiner review the files, including all the previous right ankle VA examination reports and note the review in an examination report. 

a) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination must record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing.  If a joint cannot be tested on "weight-bearing," then the examiner must specifically indicate why that testing cannot be done.

b) The examiner must also express an opinion whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss.  If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so.

3. Schedule the Veteran for VA examination to determine the current nature and severity of his service-connected bilateral foot disability, to include pes planus.  The examiner should discuss all diagnoses of the feet.  The claims file should be made available to and reviewed by the examiner, and that review should be noted in the examination report.  The examiner should perform all indicated tests and studies.

4. Re back disability - Contact the Veteran again and request that he either provide any outstanding relevant private treatment records, to include from the CCMH related to a February 2015 hospitalization, or completes a release for such providers; if any releases are returned, attempt to obtain the identified records.  If any records requested are not ultimately obtained, notify the Veteran pursuant to 38 C.F.R. § 3.159 (e) (2016).  The Veteran must then be given an opportunity to respond.

5. After completion of the above, obtain an addendum to the April 2016 back examination which would consider the private records from the February 2015 hospitalization for his back, and which would comment on the current severity of the Veteran's service-connected low back disability.



6. Then, readjudicate all claims on appeal.  If the benefits sought remain denied, furnish the Veteran and his representative a SSOC and afford them the appropriate time period to respond. 

Again, please note that, with respect to the Veteran's increased rating claim for his service-connected low back disability, this means readjudicating the claim with consideration of the appropriate schedular criteria, to include the schedular criteria in effect prior to September 2002 and September 2003.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
YVETTE R. WHITE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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