http://www.va.gov/vetapp16/Files3/1621728.

txt
Citation Nr: 1621728
Decision Date: 05/31/16
DOCKET NO.
)
)

Archive Date: 06/08/16

08-23 495 ) DATE

On appeal from the

Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1.

Entitlement to service connection for pancreatitis.

2.

Entitlement to an initial rating in excess of 10 percent for lumbar di

3.

Entitlement to an initial rating in excess of 10 percent for post-oper

4.

Entitlement to an initial compensable rating prior to September 20, 20

5.

Entitlement to a total rating based on individual unemployability (TDIU

REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
B. Muetzel, Associate Counsel
INTRODUCTION

The record reflects that the Veteran had active duty service and several pe

This matter comes before the Board of Veterans' Appeals (Board) on appeal f

The February 2007 rating decision granted service connection for lumbar spi
In the October 2007 rating decision, the RO granted service connection for
In November 2013, the RO increased the rating for left foot numbness to 20
The Veteran testified before the undersigned at a Board videoconference in

In October 2014, the Board remanded the claims for additional development,

During her September 2013 VA examination, the Veteran reported that she had

This appeal was processed using the Veterans Benefits Management System (VB

The issue of entitlement to a temporary total disability rating under 38 C.

The issues of entitlement to service connection for pancreatitis; a TDIU; a

FINDINGS OF FACT
1.

Prior to February 25, 2010, the Veteran's lumbar spine disability was m

2.

From February 25, 2010, to September 19, 2013, the Veteran's lumbar spi

3.

For the entire period on appeal, the Veteran's left ankle disability ha

5.

For the entire period on appeal, the Veteran's left foot numbness has b

CONCLUSIONS OF LAW
1.

Prior to February 25, 2010, the criteria for an initial disability rati

2.

From February 25, 2010, to September 19, 2013, the criteria for an init

3.

For the entire period on appeal, the criteria for an initial disability

5.

For the entire period on appeal, the criteria for an initial disability

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify & Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulati

A notification letter was sent in November 2005 that complied with the requ

The duty to assist the Veteran in the development of claims includes assist

All pertinent, identified medical records have been obtained and considered

The Agency of Original Jurisdiction (AOJ) substantially complied with the r

As VA satisfied its duties to notify and assist the Veteran, there is no fu

II. Disability Evaluations

Disability ratings are assigned in accordance with VA's Schedule for Rating

If two rating are potentially applicable, the higher evaluation will be ass

Staged ratings are assignable during the course of the appeal for an initia

For disabilities rated on the basis of limitation of motion, VA is required

The Court has held that "pain itself does not rise to the level of function

The evaluation of the same disability under various diagnoses is to be avoi

When all the evidence is assembled, VA is responsible for determining wheth

Lumbar Spine Disability
a.

Legal Criteria

The Veteran's lumbar spine disability has been rated under Diagnostic Code

A 20 percent disability rating is assigned for forward flexion of the thora

A 40 percent disability rating is assigned for forward flexion of the thora

Normal ranges of motion of the thoracolumbar spine are flexion from 0 degre

Degenerative arthritis established by X-ray findings will be rated on the b

For VA compensation purposes, unfavorable ankylosis is a condition in which

b.

Factual Background

Service treatment records show that the Veteran sustained a herniated disc

December 2003 treatment records show that the Veteran had been experiencing

Records from Center for Pain shows in July 2004 the Veteran was treated for

At a VA examination on December 12, 2005, the Veteran reported that she con
She reported back pain flares up with bending and lifting.

She indicated t

Examination revealed that thoracolumbar forward flexion to 90 degrees with

A private MRI of the thoracic spine in July 2006 reportedly was normal.

VA

In her March 2007 notice of disagreement, the Veteran contended that her lu

At a VA examination on July 9, 2007, the Veteran had forward flexion of the

Another VA examination was provided on February 25, 2010.

The Veteran endo

The examination revealed that the Veteran's head position and posture were
The Veteran exhibited full strength in all lower extremities.

The sensory

Another VA examination was provided on September 20, 2013.

The examiner re

Range of motion of the lumbar spine on forward flexion was 90 degrees with

Functional loss or functional impairment was noted to include less movement

Straight leg raise test was positive on the left and negative on the right.
c.

Analysis

1.

Prior to February 25, 2010

The evidence during this period shows that thoracolumbar forward flexion wa

Moreover, the VA examiner found no evidence of ankylosis and the record doe
Additionally, while the Veteran reported flare-ups on the December 2005 VA
Even considering functional impairment caused by the DeLuca factors, these

The examination and treatment reports do not show any periods of doctor-pre

Therefore, a disability rating in excess of 10 percent for the orthopedic m

The record demonstrates that there are neurological abnormalities associate

The Board has considered the doctrine of reasonable doubt; however, the pre
From February 25, 2010 to September 20, 2013

The evidence during this period demonstrated that the Veteran's lumbar spin
Left Ankle
The Veteran's left ankle disability has been rated as 10 percent disabling

Diagnostic Code 5271 provides ratings based on limitation of extension of t

Diagnostic Code 5270 provides ratings for ankylosis of the ankle. 38 C.F.R.
Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20
Factual Background

An X-ray examination at a private facility in February 2005, showed moderat

Records from a surgical center show in February 2004 the Veteran underwent

At the VA examination dated December 12, 2005, the Veteran reported that sh

In her March 2007 notice of disagreement, the Veteran indicated that she di

The Veteran submitted a statement in January 2008, disagreeing with the rat

The Veteran was provided a VA examination in February 2010, at which time s

The examiner noted that the Veteran's left ankle symptoms included deformit

On examination, there were no constitutional symptoms of arthritis or incap

The examiner's findings included deformity, tenderness, instability, and we

There was evidence of pain following repetitive motion but no additional li

The examiner also noted that the disability had an effect on the Veteran's
Another examination was provided in September 2013.

The examiner reviewed

The Veteran reported flare-ups that impact her ability to function.

She in

On repetitive motion testing, the Veteran had plantar flexion to 20 degrees

X-ray testing revealed partially threaded screw seen through the medial mal
c.

Analysis

The February 2010 examination showed dorsiflexion to 0 degrees and plantar

Under the current regulations, a rating excess of 20 percent for the Vetera

The Board notes that the examiner who provided the December 2005 examinatio

In so deciding, the Board notes that the provisions of DeLuca were consider
A 40 percent rating would be applicable if there was actual loss of use of

As such, a 20 percent rating is warranted for the Veteran's left ankle disa
Left Foot Numbness
a.

Legal Criteria

The Veteran has been awarded a separate rating for disability of the sciati
The assignment of a particular diagnostic code is "completely dependent on

In this case, the Board finds that the Veteran's disability is more properl

A 10 percent evaluation is warranted for mild incomplete paralysis of the s

When the nerve involvement is wholly sensory, the rating should be for the
b.

Factual Background

During a December 2005 VA examination, the Veteran complained of left foot

Again in July 2007, during another VA examination, the Veteran complained o

A VA examination dated in February 2010 revealed that sensory testing of th

Another VA examination was provided September 2013, which showed signs and/
c.

Analysis

Resolving all reasonable doubt in favor of the Veteran, the Board finds tha
ORDER

Prior to February 25, 2010, an initial rating in excess of 10 percent for t

From February 25, 2010, to September 19, 2013, an initial rating of 20 perc

For the entire period on appeal, an initial rating of 20 percent, but no mo

For the entire period on appeal, an initial rating of 20 percent, but no mo

REMAND

The most recent VA examination for the Veteran's back disability was in 201
The Board previously remanded the claims in October 2014.

With regard to t

Then, in a December 2005 VA examination for PTSD, the examiner noted that t

Given the above, the Board remanded the claim because there was an indicati
This opinion is not adequate for purposes of deciding the claim.

Specifica

A remand by the Board confers on the Veteran, as a matter of law, the right
As noted above a claim of entitlement to a TDIU was raised by the record.

Because the Board is undertaking significant development with regard to the

Accordingly, the case is REMANDED for the following action:
1.

Schedule the Veteran for a VA examination regarding whether the alcohol

a. Whether the Veteran's previously or currently-diagnosed alcohol abuse is

b. Whether the Veteran's previously or currently-diagnosed alcohol abuse is

If alcohol abuse is aggravated by PTSD, the examiner should opine as to whe

The examiner should provide a rationale for each opinion provided. If the e
3.

Obtain a VA opinion regarding the functional and occupational impact of

If the examiner is unable to provide the needed opinion without resorting t

4.

If the decision remains adverse to the Veteran, issue a supplemental st

The appellant has the right to submit additional evidence and argument on t
This claim must be afforded expeditious treatment.

______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

The law requires that a