http://www.va.gov/vetapp16/Files4/1630438.

txt
Citation Nr: 1630438
Decision Date: 07/29/16
DOCKET NO.
)
)

Archive Date: 08/04/16

15-28 469 ) DATE

On appeal from the

Department of Veterans Affairs Regional Office in San Juan, the Commonwealt
THE ISSUES
1.

Whether new and material evidence has been received to reopen a service

2.

Entitlement to service connection for bilateral hearing loss.

3.

Entitlement to service connection for tinnitus.

4.

Entitlement to service connection for dyslipidemia.

5.

Entitlement to service connection for a cervical spine disability.

6.

Entitlement to service connection for bilateral shoulder and arm osteoa

7.

Entitlement to service connection for right elbow osteoarthritis.

8.

Entitlement to service connection for right wrist osteoarthritis.

9.

Entitlement to service connection for bilateral hip osteoarthritis.

10.

Entitlement to service connection for bilateral knee osteoarthritis.

11.

Entitlement to service connection for bilateral ankle osteoarthritis.

12.

Entitlement to service connection for bilateral foot osteoarthritis.

13.

Entitlement to service connection for obstructive sleep apnea.

14.

Entitlement to service connection for a psychiatric disability, to inc

15.

Entitlement to service connection for a prostate disability, claimed a

16.

Entitlement to a disability rating higher than 20 percent for a lumbar

17.

Entitlement to a disability rating higher than 10 percent for residual

18.

Entitlement to a compensable disability rating for left leg length dif

19.

Entitlement to a total rating due to individual unemployability (TDIU)

REPRESENTATION
Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

S. B. Mays, Counsel
INTRODUCTION
The Veteran had active service from July 1956 to July 1958.

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

The issues of entitlement to a compensable rating for left leg length diffe
FINDINGS OF FACT
1.

Resolving all doubt in the Veteran's favor, the Veteran has had the fun

2.

The Veteran's residuals of left tibia fracture approximate malunion of

3.

Dyslipidemia is a laboratory finding, not a disability due to disease o

4.

An unappealed January 1992 rating decision denied service connection fo

CONCLUSIONS OF LAW
1.

The criteria for a 40 percent rating, but not higher, for a lumbar spin

2.

The criteria for a 20 percent rating, but not higher for residuals of l

3.

The criteria to establish service connection for dyslipidemia are not m

4.

The January 1992 rating decision denying service connection for hyperte

5.

Evidence received since the January 1992 rating decision is new and mat

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist
VA has duties to notify and assist a claimant in substantiating claims for

In this case, the RO provided a notice letter to the Veteran in August 2014

The Board finds that the duty to assist has also been met and appellate rev
The Veteran underwent February 2015 VA examinations to assess the severity

The Veteran has not been provided a VA medical examination in conjunction w

The Board finds that all relevant facts have been properly developed, and a
Increased Ratings

Disability ratings are determined by applying the criteria set forth in the

If there is a question as to which rating to apply to the Veteran's disabil

Where entitlement to compensation has already been established and increase

The Board must analyze the credibility and probative value of the evidence,

In general, all disabilities, including those arising from a single disease

When rating joint disabilities rated on the basis of limitation of motion,
Pain, in and of itself, that does not result in additional functional loss

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

Lumbar Spine Disability

The Veteran has been in receipt of a 20 percent disability rating for dorso

Diagnostic Code 5295 refers to the earlier criteria (pre-2003) pertaining t

However, effective September 26, 2003, all diagnostic codes pertaining to t

Diagnostic Codes 5291 and 5295 are no longer part of the current rating sch
Disabilities of the spine are rated under the General Formula for Diseases

Under the General Rating Formula, a 10 percent rating is warranted for forw

Alternatively, under the IVDS Formula, incapacitating episodes having a tot

An incapacitating episode is a period of acute signs and symptoms due to in

Rating factors for a disability of the musculoskeletal system include funct

In rating musculoskeletal disabilities, VA must determine whether pain coul

VA received the Veteran's increased rating claim on appeal here in July 201

At a February 2015 VA examination, the Veteran reported constant low back p

As indicated, the Veteran is in receipt of a 20 percent rating for his lumb

On February 2015 VA examination, forward flexion of the Veteran's thoracolu

Based on that evidence and with resolution of all doubt in favor of the Vet

The evidence does not show ankylosis.

Therefore a rating greater than 40 p

Accordingly, the Board finds that entitlement to a 40 percent rating, but n

Residuals of Left Tibia Fracture

The Veteran seeks a rating higher than 10 percent for residuals of left tib

Knee disabilities are rated under Diagnostic Code 5256 for ankylosis, Diagn

Under Diagnostic Code 5256, a 30 percent rating is assigned for ankylosis o

Under Diagnostic Code 5257, for other knee impairment including recurrent s
Under Diagnostic Code 5258, a 20 percent rating is assigned for dislocated

Under Diagnostic Code 5259, removal of semilunar cartilage that is symptoma

Flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexi

Extension limited to 5 degrees warrants a 0 percent rating.

Extension limi

Normal or full range of motion of a knee is from 0 degrees of extension to

Under Diagnostic Code 5262, a 10 percent rating is warranted for malunion o

A 10 percent rating is assigned for acquired, traumatic genu recurvatum, wi

Separate ratings may be assigned for knee disability under Diagnostic Codes
Separate ratings may be assigned where a service-connected knee disability

The Veteran in this case fractured his left tibia during service, and becau

At a February 2015 VA examination, the Veteran stated that if he stood or w

As described above, the Veteran has a deformity in the upper third of the l

Based on that evidence and with resolution of all doubt in favor of the Vet

However, the Board finds that more than moderate disability of the left kne

Accordingly, the Board finds that a rating of 20 percent, but not higher, i
Service Connection for Dyslipidemia
The Veteran contends that he has dyslipidemia that is related to service.
Service connection may be granted for disability resulting from disease or

In order to establish service connection for a claimed disorder on a direct

Congress has specifically limited entitlement for service-connected disease

In making all determinations, the Board must fully consider the lay asserti

On review of all evidence, the Board finds that the criteria to establish s

Dr. Mora Quesada's July 2014 statement indicates that the Veteran has dysli

The Board recognizes that the representative, in the 2016 written argument,
New and Material Evidence

Rating decisions are final and binding based on evidence on file at the tim
To reopen a claim, new and material evidence must be presented or secured.

New evidence is defined as existing evidence not previously submitted to ag

In this case, the record shows that the Veteran originally filed a VA compe

In 2014, the Veteran essentially sought to reopen the previously denied cla

On review, the Board finds that the new and material evidence has been rece
ORDER

Entitlement to a 40 percent rating, but not higher, for lumbar spine disabi

Entitlement to a 20 percent rating, but not higher, for residuals of left t

Entitlement to service connection for dyslipidemia is denied.

New and material has been received and the claim to reopen a previously den
REMAND

n July 2016 written argument, the Veteran's representative noted that the V

Moreover, a request for Social Security Administration (SSA) records should

For the claim for service connection for bilateral shoulder and arm, right
In addition, the Veteran asserts in the July 2016 written argument that he

On remand, a VA examination is necessary to help ascertain the likely etiol

In Dr. Mora Quesada's July 2014 opinion, he indicated that the Veteran's ca

The July 2014 statement authored by Dr. Mora Quesada, diagnosed the Veteran

Examinations are also needed to clarify the etiology of the Veteran's heari

The Veteran also asserts that he has tinnitus secondary to the effects of N

The record contains a current diagnosis of a cervical spine disability, ins

The record to date contains no VA outpatient records showing a current psyc

The issue of entitlement to a TDIU is intertwined with the increased rating

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

Obtain and associate with the claims file all outstanding VA treatment

2.

Contact the Veteran and ask him to provide any information regarding an

3.

Obtain the Veteran's complete service personnel records.

4.

Contact the Veteran and inquire whether he is currently receiving SSA d

5.

Provide the Veteran with a VA examination to determine the current natu

6.

Schedule the Veteran for a VA audiology examination.

7.

Schedule the Veteran for a VA examination to determine the etiology of

8.

Schedule the Veteran for a VA examination to determine the current natu

(a)

Diagnose any bilateral shoulder and arm, right elbow, right wrist, bil

(b)

For each bilateral shoulder and arm, right elbow, right wrist, bilater

(c).

For each currently shown bilateral hip, knee, ankle, and foot disabil

All action in

The examiner must

9.

Schedule the Veteran for a VA examination to determine the current natu

(a)

State whether any obstructive sleep apnea or prostate disability is cu

(b)

For any currently shown obstructive sleep apnea and prostate disabilit

10.

If newly received evidence suggests that any current cervical spine di

11.

Then, readjudicate the claims.

If any decision is adverse to the Vete

The appellant has the right to submit additional evidence and argument on t

______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs