Citation Nr: 1760264
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 14-09 136A ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee

THE ISSUES

1. Entitlement to a compensable initial rating for bilateral shin splints.

2. Entitlement to a compensable initial rating for irritable bowel syndrome (IBS).

3. Entitlement to an effective date prior to September 1, 2012, for the award of service connection for left lower extremity radiculopathy.

REPRESENTATION

Appellant represented by: Daniel G. Krasnegor, Attorney-at-Law

ATTORNEY FOR THE BOARD

M. Thomas, Associate Counsel

INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from September 2005 to September 2008.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

The Veteran appointed the Daniel G. Krasnegor, as his representative in April 2010, which effectively revoked the prior representation by New York State Division Veterans Affairs.

The Board considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Here, however, the record indicates that the Veteran has been gainfully employed throughout the period on appeal. Although the Veteran may have had issues at work related to his service-connected disabilities, they are not shown to result in an inability to obtain and maintain substantially gainful employment. Importantly, the Veteran does not assert the inability to maintain his current job due to service-connected disability. The Board therefore finds that Rice is inapplicable, and a TDIU request has not been inferred.

The issue of entitlement to an earlier effective date for the award of service connection for left lower extremity radiculopathy is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. For the entire period on appeal, the Veteran’s bilateral shin splints have resulted in painful but otherwise non-compensable limitation of motion; there has been no evidence of bilateral knee ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, limitation of flexion, limitation of extension, or genu recurvatum.

2. For the entire period on appeal, the Veteran’s IBS most nearly approximated severe symptoms, including diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress.

CONCLUSIONS OF LAW

1. For the entire period on appeal, the criteria for an initial 10 percent rating, but no higher, for right shin splints have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5299-5262 (2017); Burton v. Shinseki, 25 Vet. App. 1 (2011); Deluca v. Brown, 8 Vet. App. 202 (1995).

2. For the entire period on appeal, the criteria for an initial 10 percent rating, but no higher, for left shin splints have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5299-5262 (2017); Burton v. Shinseki, 25 Vet. App. 1 (2011); Deluca v. Brown, 8 Vet. App. 202 (1995).

3. For the entire period on appeal, the criteria for an initial 30 percent rating for IBS have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.114, DC 8873-7319 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Procedural Duties

In this case, neither the Veteran nor his attorney has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Increased Initial Rating Claims – Applicable Laws and Regulations

The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017).

The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has also held that 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

Moreover, the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Increased Initial Ratings for Bilateral Shin Splints – Analysis

The Veteran is currently in receipt of a noncompensable initial disability rating for bilateral shin splints. He contends that a higher rating is warranted.

The Veteran’s bilateral shin splints are currently rated by analogy under 38 C.F.R.
§ 4.71a, DC 5299-5262, applicable to impairment of the tibia and fibula. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. When an unlisted condition is encountered, as with shin splints, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. According to the policy in the Rating Schedule, when a disability is not specifically listed, the Diagnostic Code will be “built up,” meaning that the first 2 digits will be selected from that part of the schedule most closely identifying the part of the body involved, and the last 2 digits will be “99.” 38 C.F.R. § 4.27.

Under DC 5262, malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating, with moderate knee or ankle disability warrants a 20 percent rating, and with marked knee or ankle disability warrants a 30 percent rating. Nonunion of the tibia and fibula with loose motion, requiring a brace warrants a 40 percent rating. Given that the Veteran does not have malunion of the tibia and fibula, the rating criteria in this case is imprecise, but the Board’s analysis focus on whether the disability most nearly approximates slight, moderate, or marked disability, or disability approximating loose motion requiring a brace.
Descriptive words such as “slight,” “moderate” and “marked” 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 for “equitable and just decisions.” 38 C.F.R. § 4.6.

Turning to the evidence, service treatment records reflect that the Veteran had pain in his shins that was worse with running.

A December 2008 VA treatment record indicated that the Veteran had intermittent pain in his bilateral shins. The pain was precipitated by prolonged ambulation and alleviated by rest. He used a cane and at times needed help from his wife to put on his shoes.

In November 2011, the Veteran’s treating physician stated that the Veteran’s bilateral shin pain was episodic with flare-ups with excessive running/jumping activities to the right anterior tibial surface.

The Veteran was afforded a VA compensation examination in September 2012. He stated that he currently had minimal intermittent pain that did not affect his activity level. On examination, there was no loss of range of motion.

After a review of the evidence, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that initial ratings of 10 percent are warranted for the Veteran’s bilateral shin splints. The Veteran has consistently reported having pain when running. Pain is the only reported symptom of the bilateral shin splints. However, the Veteran reported that the pain has been intermittent, minimal in severity, and did not affect his activity level. See September 2012 VA examination report. The Veteran’s competent and credible descriptions of his bilateral shin splints are highly probative. See Layno, 6 Vet. App. at 470.

Overall, the Veteran’s disability picture is consistent with a “slight” disability involving pain with running. As such, separate 10 percent ratings are for assignment as the diagnostic criteria under DC 5262 contemplate a single extremity and not a combined bilateral disability picture. The Veteran’s symptoms are not consistent with a moderate disability level as his shin splint symptoms have occurred only on an intermittent basis; therefore ratings higher than 10 percent under DC 5262 are not warranted. Moreover, a separate or higher rating is not assignable by analogy to any other diagnostic code. Indeed, the medical evidence shows that the Veteran’s shin splints do not affect the functioning of any other joint. The Veteran himself stated that they do not affect his activity level. See September 2012 VA examination report. There is also no other compensable disability not already contemplated by the ratings assigned under DC 5262, which broadly and comprehensively includes all associated symptoms, such as painful motion.

In conclusion, when reconciling the medical evidence into a consistent picture, it is found that the Veteran’s disability picture is most consistent with a 10 percent disability level for each leg. Staged ratings are not warranted. See Hart, 21 Vet. App. at 505. Accordingly, the Board resolves any reasonable doubt in the Veteran’s favor in finding that separate 10 percent ratings are warranted for “slight” disability due to painful motion. See 38 C.F.R. §§ 4.59, 4.71a, DC 5262; Burton v. Shinseki, 25 Vet. App. 1 (2011).

Resolving all doubt in his favor and in consideration of this functional impairment and the holdings of Deluca, Mitchell, and Burton, supra, the Board finds that the Veteran is entitled to the minimum compensable ratings for bilateral shin splints manifested by painful motion for the entire period on appeal. See 38 C.F.R. § 4.59; Burton, 25 Vet. App. 1.

Entitlement to an Increased Initial Rating for IBS – Analysis

The Veteran is currently in receipt of a noncompensable initial disability rating for IBS under DC 8873-7319. See 38 C.F.R. § 4.114. While DC 8873 references undiagnosed illnesses occurring in Persian Gulf veterans (see 38 C.F.R. § 3.317 (2017)), the disability is actually rated pursuant to the criteria of Diagnostic Code 7319.

Under Diagnostic Code 7319, a 10 percent rating is assigned for irritable colon syndrome (spastic colitis, mucous colitis, etc.) due to moderate symptoms; frequent episodes of bowel disturbance with abdominal distress. A 30 percent rating is assigned for irritable colon syndrome (spastic colitis, mucous colitis, etc.) where symptoms are severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress.

Descriptive words such as “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 for “equitable and just decisions.” 38 C.F.R. § 4.6.

With regard to coexisting abdominal conditions, VA regulation recognizes that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. 38 C.F.R. § 4.113. Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. Id. Rather, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The Board also notes that, with regard to the schedule of ratings for the digestive system, section 4.114 expressly prohibits, in pertinent part, the combination of ratings under DCs 7301 to 7329, inclusive, which include the schedular criteria for irritable colon syndrome (DC 7319).

After a review of all the evidence, both lay and medical, and resolving any reasonable doubt in favor of the Veteran, the Board finds that, for the entire initial rating period, the Veteran’s IBS has more nearly approximated severe symptoms including alternating diarrhea and constipation with more or less constant abdominal distress. The evidence of record shows that the Veteran’s IBS has manifested in alternating diarrhea and constipation with more or less constant abdominal distress. A February 2010 private treatment record indicated that the Veteran had irregular bowel movements that alternated between diarrhea and constipation. In March 2010, the Veteran stated that he had alternating frequent diarrhea and constipation and his intestines were frequently noisy and unsettled. He indicated that during episodes of intestinal trouble he felt bloated and unwell. The bloating was accompanied by discomfort in his lower abdomen. These episodes lasted from days to weeks and varied in severity. In April 2012, the Veteran stated that his bowel movements alternate from loose stools to very bad constipation. He stated that these problems had continued in frequency and severity since service. During the September 2012 VA examination, he reported having intermittent diarrhea and constipation, as well as constant troubles with bowel movements that were not regular in frequency or character. The Veteran’s consistent, competent, and credible descriptions of his IBS symptoms are highly probative. See Layno, 6 Vet. App. at 470.

Based on the foregoing, the Veteran’s service-connected IBS has been productive of “severe” symptoms for the entire initial rating period on appeal; therefore, a 30 percent disability rating is warranted under DC 7319 for the entire initial rating period. 38 C.F.R. §§ 4.3, 4.7, 4.114. As 30 percent is the maximum rating available for IBS, the Board concludes that the Veteran is not entitled to any higher rating for the IBS disability under DC 7319 at any relevant time during the appeal period.

Moreover, the evidence does not support a rating in excess of 30 percent based upon another Diagnostic Code pertaining to abdominal disabilities. As discussed above, the predominant manifestations of the IBS are alternating diarrhea and constipation with abdominal distress. The maximum rating of 60 percent under DC 7346 is authorized for hernia with symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Here, while symptoms of pain and vomiting are noted, there has been no evidence of material weight loss, hematemesis or melena with moderate anemia, vomiting, or other symptom combinations productive of severe impairment of health.

There also is no showing of ulcerative colitis as evaluated under DC 7323, and in any event, the next-higher rating under DC 7323 contemplates numerous yearly attacks of colitis, which has not been shown here. While the Veteran’s diarrhea and constipation occur more or less constantly according to his statements and reports to the VA examiner, there is no showing of malnutrition, marked or otherwise. Moreover, indicia of general debility, or any serious health complication, are lacking.

DC 7332 provides for higher ratings only if there is evidence of complete loss of anal sphincter control or extensive bowel leakage and fairly frequent involuntary bowel movements; this is neither alleged nor shown here. Therefore, the other Diagnostic Codes regarding abdominal conditions do not afford a basis for the assignment of an initial rating higher than 30 percent in the absence of a showing of the symptoms or findings discussed. See 38 C.F.R. § 4.114, DCs 7301, 7304 – 7307, 7332.

Accordingly, the Board finds that DC 7319 is the appropriate diagnostic code for evaluating the Veteran’s IBS as the rating criteria expressly takes into account the Veteran’s symptomatology. None of the other diagnostic codes for evaluating the digestive system are more appropriate in this case and they do not provide for a higher disability rating for the Veteran’s IBS-related symptoms.

Finally, the Board notes that neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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).

For these reasons, the Board finds that the preponderance of the evidence supports a finding that an initial 30 percent rating, but no higher, for IBS for the entire period on appeal.

ORDER

For the entire period on appeal, an initial 10 percent rating, but no higher, for right shin splints is granted, subject to controlling regulations governing the payment of monetary awards.

For the entire period on appeal, an initial 10 percent rating, but no higher, for left shin splints is granted, subject to controlling regulations governing the payment of monetary awards.

For the entire period on appeal, an initial rating of 30 percent, but no higher, is granted, subject to controlling regulations governing the payment of monetary awards.

REMAND

In a February 2014 rating decision, the RO granted service connection for left lower extremity radiculopathy and assigned an initial 10 percent rating, effective September 1, 2012. In July 2014, prior to the February 2014 rating decision becoming final, the Veteran’s representative submitted a notice of disagreement with the effective date assigned for the award of service connection for left lower extremity radiculopathy. To date, a statement of the case (SOC) has not been issued as it relates to this issue. The Board is required to remand the claim for issuance of a SOC. Manlicon v. West, 12 Vet. App. 238 (1999). This matter is not before the Board at this time, and will only be before the Board if the Veteran timely files a substantive appeal of the issues after the SOC is issued.

Accordingly, the case is REMANDED for the following action:

Issue a SOC on the issue of entitlement to an effective date prior to September 1, 2012, for the award of service connection for left lower extremity radiculopathy. The Veteran and his attorney should be advised of the time limit for perfecting an appeal, and afforded such period of time to do so. If he timely perfects an appeal in the matter, it should be returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012).

______________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.