Entitlement to a disability rating in excess of 10 percent for lumbar strain is denied.
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Citation Nr: 19196465 Decision Date: 12/27/19 Archive Date: 12/27/19 DOCKET NO. 13-03 745A DATE: December 27, 2019 ORDER 1. Entitlement to a disability rating in excess of 10 percent for lumbar strain is denied. 2. Entitlement to service connection for condyloma is denied. 3. Entitlement to service connection for a heart disability is denied. FINDINGS OF FACT 1. Lumbar strain has not been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. The preponderance of the evidence is against finding that the Veteran has any residuals that cause functional impairment in earning capacity from in-service condyloma. 3. A heart disability did not have its onset in service, did not manifest to a compensable degree within one year of service discharge, and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.40, 4.45, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for service connection for condyloma have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a heart disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1991 to September 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In July 2017, the Veteran provided testimony in a video conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In November 2017, the Board granted the service connection claim for hypertension and remanded the claims for service connection for a heart disability, tinea versicolor, and condyloma, as well as entitlement to an increased disability rating for lumbar spine strain with degenerative changes. The Board finds there is substantial compliance with the remand directives. After the Board’s remand, the RO granted service connection for tinea versicolor in October 2018. Because the October 2018 rating decision constitutes a full grant, the issues of service connection for tinea versicolor is no longer on appeal before the Board. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107. 1. Entitlement to a disability rating in excess of 10 percent for lumbar strain The service-connected lumbar strain is rated under DC 5237, which is to be evaluated under the General Rating Formula for rating diseases and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees, extension is to 30 degrees, left and right lateral flexion are to 30 degrees, and left and right lateral rotation are to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula, n. 1. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply to lumbar spine disabilities. An evaluation of 20 percent is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is 120 degrees or less; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, DCs 5235-5243. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is limited to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine, is fixed in flexion or extension. 38 C.F.R. § 4.71a. During the July 2017 Board hearing, the Veteran testified his lumbar spine disability increased in severity. He stated that when he is at work, he can barely sit without pain. He also stated that he cannot sleep at night and he was advised that his prostate was enlarged because he is constantly urinating. The Veteran stated that he believes that is a direct result of his back injury. His doctor told him a nerve could be pressing against a nerve and that could cause his leg to buckle. On the right side, the Veteran said pain goes from the center of his back, rotates around under his testicles, and then radiates from there. The Veteran stated he takes BC Powder for the pain. He also stated that his pain had increased in severity since his last examination in February 2017. A September 2011 VA examiner concluded that the Veteran’s flexion was zero to 90 degrees, his extension from zero to 20 degrees, and right and left lateral flexion and rotation from zero to 25 degrees. All ranges of motion were noted to be completed with pain. Furthermore, the examiner noted that there was no evidence of radiating pain on movement. The examiner also noted there was no muscle spasm, no weakness, and the Veteran’s muscle tone was normal with no atrophy. Additionally, there was no ankylosis of the thoracolumbar spine. The Veteran was privately evaluated by Dr. Craig Bash in November 2014. During that examination, the Veteran’s flexion was zero to 70 degrees, his extension from zero to 5 degrees, and right and left lateral flexion was zero to 20 degrees, and right and left rotation from zero to 10 degrees. Dr. Bash noted that there was muscle spasm guarding and tenderness, radicular pain on the right sciatic region, absent reflexes in the Veteran’s achilles and patellar. Additionally, Dr. Bash concluded that the Veteran had bladder incontinence and erectile dysfunction due to his lumbar spine disability. Furthermore, Dr. Bash noted that the Veteran had decreased range of motion due to pain, fatigue, fatigue, lack of endurance, incoordination, stiffness, and spasms. He also had decreased range of motion such as pain, fatigue, weakness, and decreased endurance on repeat testing. During the February 2017 VA examination, the Veteran reported that he had flare ups. The VA examiner found that the Veteran’s flexion was zero to 80 degrees, and his extension, right and left lateral flexion, and rotation were from zero to 30 degrees. All ranges of motion were noted to be completed with pain. The examiner explained that the Veteran did not have guarding or muscle spasm of the lumbar spine, had normal muscle strength, normal reflexes, a normal sensory exam, and no muscle atrophy, ankylosis, or intervertebral disc syndrome (IVDS). The examiner noted that the Veteran’s pain did not result in additional functional loss of motion. However, there was objective evidence of pain on passive range of motion and non-weight bearing testing. A December 2017 VA examiner conducted an examination of the Veteran in-person and during that examination, the Veteran reported he has constant dull, aching back pain and swelling daily in his lower back. The Veteran stated that his back slows him down and he is unable to lift weights or jog over a mile. During the examination, the Veteran was within the normal range of motion but there was pain noted. The examiner explained that the Veteran did not have guarding or muscle spasm of the lumbar spine, had normal muscle strength, normal reflexes, a normal sensory exam, and no muscle atrophy, ankylosis, or intervertebral disc syndrome (IVDS). After thoroughly reviewing the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s lumbar strain warrants a disability rating in excess of 10 percent. The reasons follow. During the appeal period, the Veteran was evaluated by a VA examiner in September 2011, February 2017, and December 2017. Additionally, the Veteran was evaluated by Dr. Bash in November 2014. At all the examinations during the appeal period, the Veteran’s forward flexion of the thoracolumbar spine was greater than 60 degrees. During the examination with Dr. Bash, the Veteran’s forward flexion was less than 85 degrees. The Veteran’s combined range of motion of the thoracolumbar spine was also greater than 120 degrees throughout the appeal period, as it was 210 degrees in September 2011, 135 degrees in November 2014, 230 degrees in February 2017, and 240 degrees in December 2017. All examinations, except for the November 2014 private examination, document that the Veteran did not have muscle spasm or guarding of the lumbar spine. To the extent that muscle spasm was diagnosed in November 2014, the preponderance of the evidence is against a finding that it resulted in an abnormal gait or abnormal spinal contour. Thus, the preponderance of the evidence is against a finding that the Veteran’s lumbar spine disability warrants a 20 percent rating. Additionally, Dr. Bash’s examination noted that the Veteran bladder problems secondary to his lumbar spine. The Board finds that the preponderance of the evidence is against a finding the Veteran has bladder problems or radiculopathy as a result of the service-connected lumbar strain. For example, the evidence shows that the Veteran has issues related to his bladder due to an enlarged prostate. Additionally, in the September 2011, March 2017, and December 2017 VA examination reports, the examiner specifically noted that the Veteran did not have radiculopathy. In the February 2017 and December 2017 VA examination reports, the examiner found that the Veteran did not have bladder problems related to the lumbar strain. Therefore, the Board finds that the clinical findings made by VA medical professionals outweigh Dr. Bash’s cursory conclusion. The Board acknowledges the Veteran’s report of pain related to his lumbar strain disability. Pain is specifically contemplated for ratings assigned under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a (“With or without symptoms such as pain (wh[e]ther or not it radiates, stiffness, or aching in the area of the spine affected by residuals of injury or disease)). In the September 2011 VA examination, the examiner noted there was no additional function limited by pain, fatigue, weakness, lack of endurance or incoordination, which is evidence against an evaluation in excess of 10 percent. Additionally, in the February 2017 and December 2017 VA examination reports, the examiners noted that there was pain but that it did not result in functional loss. During these examinations, the Veteran reported having less than one week of time lost at work in the last year due to his back. The Veteran said he was unable to tolerate prolonged standing, walking, heavy lifting, bending or twisting due to his low back pain and stiffness. During the VA examinations during the appeal period, the Veteran’s strength has been at full strength (5/5), he had normal reflexes, and no muscle atrophy, which is evidence against a finding that the Veteran has lumbar spine weakness that caused more than mild functional impairment. Additionally, the currently-assigned 10 percent rating contemplates the level of functional impairment that the Veteran experiences. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for lumbar strain. Thus, as the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for increase is denied. 38 U.S.C. § 5107(b). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established under 38 C.F.R. § 3.303(b), if a chronic disease, such as coronary artery disease, are shown in service, and subsequent manifestations of the same chronic diseases, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established under 38 C.F.R. § 3.303(b), where a disability in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran’s claims on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 2. Entitlement to service connection for condyloma The Veteran asserts that he has condyloma, also known as genital warts, that was incurred in service. The Veteran testified at the July 2017 video conference hearing that he still had genital warts, at least a couple of them. He asserted that the examiner did not look and explained that his genital warts “come and go.” Additionally, the Veteran testified that he does self-treatment by burning them off instead of going to a doctor. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for condyloma. The reasons follow. Initially, the Board notes that the service treatment records show that the Veteran was treated for condyloma in April 1994, July 1994, and February 1995. Thus, the Veteran meets the element of an in-service disease or injury. However, as to evidence of a current disability, the preponderance of the evidence is against a finding that the Veteran currently has a disability due to the in-service condyloma. For example, the Veteran’s medical records show he was last treated for condyloma in October and November 1998. In a September 2011 VA examination report, it shows that the Veteran had no signs of skin disease and his penis was normal with no evidence of deformity, masses, or tenderness. The examiner concluded that he could not enter a diagnosis because there was no pathology to render a diagnosis. Additionally, the December 2017 VA examination report shows the examiner concluded the Veteran was asymptomatic. The examiner acknowledged that the Veteran had condyloma during service but concluded that it was acute only, and there was no evidence of chronicity of care. There is also no evidence within the record that the Veteran has experienced functional impairment that affects earning capacity due to his condyloma. Therefore, the preponderance of the evidence is against a finding that the Veteran has a current disability of condyloma. Thus, the Veteran does not meet the first element of a service-connection claim. The Board is aware that following the September 2011 VA examination, the examiner was asked for an addendum opinion as to whether the condyloma was recurrent, and, if so, the condition was related to his in-service treatment of genital warts during service. In an October 2011 addendum, the examiner noted that the Veteran was treated for condyloma during service but that it had “currently resolved.” The examiner added that condyloma was “a result or caused during active service.” The Board finds that this does not change the meaning of what the examiner concluded. The evidence shows that the Veteran was treated for condyloma during service. However, the issue is that after he was treated in the 1990s, it has not been recurrent and has resolved. Thus, the conclusion made in the October 2011 addendum opinion does not change the finding that the preponderance of the evidence is against a finding that the Veteran had a current disability that causes functional impairment in earning capacity. While the Veteran is competent to report symptoms that he experienced in service and since service, he is not competent to directly link any current condyloma disability to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. Hence, while the evidence shows that the Veteran has condyloma in the service, the preponderance of the evidence is against a finding that he has a current disability that is related to service. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for a heart disability The Veteran testified during the Board hearing that while in service, he was referred to Walter Reed Medical Center and there were medical tests performed to determine he has a heart condition. He stated after a year after he separated from the military, the Veteran tried to get medical assistance for his heart condition. The Veteran reported that he was later diagnosed with an aortic aneurism. The Veteran believes if he had started taking medication when he was first told he had a heart condition, his condition would not have gotten to the point of the aortic aneurism. The Veteran said he assumed that the AV block and damaged portion of his heart was related to the military service. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a heart disability on any theory of entitlement. The reasons follow. As to evidence of a current disability, a November 2014 private medical professional found that the Veteran had an enlarged heart with concentric left ventricular hypertrophy. Additionally, a February 2019 private medical report from Jackson Heart shows the Veteran was diagnosed with thoracic aortic aneurysm, without rupture. Therefore, the Veteran meets the first element of a direct service-connection claim. As to evidence of a disease or injury, the service treatment records do not show that the Veteran sustained a disease or injury to the heart during service. For example, the Veteran was referred to cardiology in August 1994 after being provisionally diagnosed with an atrioventricular (AV) block Mobitz II, which was documented was “asymptomatic”. Further evaluation noted that the Veteran had normal sinus rhythm and no evidence of sinoatrial (SA) exit or AV block. The treating physician noted that the Veteran’s heart was normal and asymptomatic. The physician wrote that the septal MI on the Veteran’s EKG could be related to bad placement and the noncardiac chest pain was not related to ischemia. The service treatment record notes there is no other evidence of cardiac disease. Thus, the preponderance of the evidence is against a finding that the Veteran had a disease or injury involving his heart during service, and the Veteran does not meet the second element of a direct service-connection claim. Regarding service connection for a chronic disease, without an in-service diagnosis of a heart disability or a heart disability being manifested to a compensable degree within one year of separation from service, the Veteran’s heart disability service connection cannot be granted on a presumptive basis as a chronic disease. Accordingly, presumptive service connection under 38 C.F.R. § 3.309(a) is denied. As to evidence of a nexus between the current disability and service, the Board finds the preponderance of the evidence is against such a nexus. For example, the Veteran was afforded a VA examination in September 2011. During this examination, the Veteran’s heart was normal and there was no evidence of congestive heart failure, cardiomegaly, or cor pulmonale. The examiner concluded that there was no diagnosis because there is no pathology to render a diagnosis. Craig Bash, M.D. opined in a November 2014 private opinion that the Veteran’s enlarged heart is likely a result of his hypertension and is a likely contributor to his AV block. Dr. Bash also said the Veteran’s AV block is also likely caused by way of his hypertension, which caused arteriosclerosis and damage to his conduction pathways. The Board finds that the passage of many years between service discharge and medical documentation of a claimed disability is a factor that tends to weigh against a finding that the disability is related to service. The evidence of record shows that the Veteran was diagnosed a heart disability in November 2014, which is more than 18 years after separation from his service. To the extent that the Veteran asserts that he was treated for a heart disability during service, the Board finds probative and persuasive that the first documentation of a heart disability was in 2014, which is many years following his discharge, and does not establish a nexus to service. Moreover, as noted above the service treatment records do not support evidence of a disease or injury related to a heart disability in service. The Veteran was provided with another VA examination in December 2017. During that examination, the examiner concluded that the Veteran’s condition was less likely than not incurred in or caused by the in-service injury, event, or illness because there was no evidence of chronicity of care for a cardiac condition. The examiner noted there was no objective evidence of a heart disability directly related to service. The examiner noted the Veteran’s EKG showed an inferior myocardial infarction and left atrial enlargement, which were both diagnosed several years post service and did not represent a heart disability recognized for VA purposes. Finally, the Veteran had an updated VA examination in June 2019. The examiner noted that she was unable to confirm ischemic activity or infarction. Additionally, after a thorough review of records and after in person examination, the examiner was unable to confirm or verify a diagnosis or treatment for a chronic heart disability, to include atrioventricular block with abnormal EKG that is proximately due to or aggravated by the service-connected hypertension. This is competent evidence against a nexus between the current disability and the service-connected hypertension. The Board finds the medical opinions provided in the November 2014 private examination, the December 2017 VA examination, and the June 2019 VA examination are competent. However, it finds that the November 2014 private examination of no probative value. Although Dr. Bash reviewed the Veteran’s records and medical articles in order to formulate his conclusion, he incorrectly applied the information provided to him by the Veteran to formulate his conclusion that the Veteran’s heart disability was related to military service. For example, Dr. Bash stated that the Veteran’s AV block was likely caused by his hypertension, which caused arteriosclerosis and damage to his conduction pathways. A review of the Veteran’s VA records supplied to Dr. Bash show that a January 2014 entry noted the Veteran had been erroneously diagnosed with coronary artery disease or atherosclerosis. Thus, Dr. Bash’s statement that the Veteran had atherosclerosis is incorrect. Based on the Board’s review of Dr. Bash’s opinion, the premise that Dr. Bash used to formulate his nexus opinion is incorrect. Accordingly, the Board finds the November 2014 private opinion to have no probative value. Additionally, while the Veteran alleges a nexus between the current heart disability and service or hypertension, he is not competent to directly link any current disability to service or a service-connected disability, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s opinion is nonprobative evidence. For all the reasons laid out above, the Board concludes that the preponderance of the evidence is against the claim for service connection for a heart disability, on a presumptive, direct, or a secondary basis. As the preponderance of the evidence is against the claim of service connection for a heart disability, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.