Citation Nr: 18142357 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 10-30 028 DATE: October 15, 2018 ORDER An initial 40 percent evaluation, but no higher, for lumbar discogenic disc disease with degenerative arthritis and muscle spasms throughout the appeal period is granted. REMANDED Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD), is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s forward flexion of the thoracolumbar spine is more closely approximate to 30 degrees or less, although there is no evidence of any ankylosis of the thoracolumbar spine or at least 6 weeks of physician-prescribed bedrest throughout the appeal period. CONCLUSION OF LAW The criteria for an initial 40 percent evaluation, but no higher, for lumbar discogenic disc disease with degenerative arthritis and muscle spasm are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1992 to February 1993, April to August 1994, and May to September 1998. The Veteran’s DD Form 214 from the 1992-1993 period of service demonstrates 2 months of prior active service, although it does not indicate when those additional months of service were. The Board further reflects that there appear to be service treatment records associated with the claims file for more than these additional two months of service, and therefore it appears to the Board that the Veteran has additional active duty for training, inactive duty training, and/or reserve service which has not been properly verified by the Agency of Original Jurisdiction (AOJ) at this time. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in April 2016. This case was initially before the Board in December 2016, at which time the Board remanded the above issues for additional development. Those issues have been returned to the Board at this time for further appellate review. In December 2016, the Board additionally remanded service connection claims for psychiatric and bilateral ankle disorders. During the pendency of the remand, the AOJ granted service connection for psychiatric and bilateral ankle disabilities in a November 2017 rating decision. As the full award of benefits sought on appeal have been awarded as to those issues, the Board will no longer discuss those issues in this decision. Finally, the Veteran submitted an application for TDIU during the pendency of the appeal in January 2018. Accordingly, the Board has taken jurisdiction over the TDIU claim in this case, as it is part and parcel of the increased lumbar spine claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Turning to the increased lumbar spine claim, disability ratings are determined by applying the criteria set forth in the 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. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 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). The Veteran filed her claim for service connection for a lumbar spine disability on October 2, 2008, and she has been awarded service connection for her lumbar spine disability since that date. Throughout the appeal period, the Veteran’s lumbar spine disability has been assigned a 20 percent evaluation for the period prior to March 16, 2012, and a 40 percent evaluation for the period beginning March 16, 2012. Her disability evaluations have been assigned under Diagnostic Code 5243-5242 throughout the appeal period. Diagnostic Code 5242 refers the rater to the General Rating Formula for Diseases and Injuries of the Spine, which provides a 20 percent evaluation for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a 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. A 40 percent evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero 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. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Alternatively, the Veteran’s lumbar spine disability may be evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, which assigns a 10 percent evaluation with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation may be assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation may be assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation may be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Id. at Note (1). Turning to the evidence of record, a March 2009 private Magnetic Resonating Imaging (MRI) scan demonstrated a normal lumbar spine. The Veteran underwent a VA general medical examination in May 2009, at which time she was diagnosed with lumbar discogenic disease. The examiner noted that a CT scan in 2004 showed degenerative disc disease, and that she was eventually diagnosed with back muscle spasms. She complained of back pain, constant tenderness, and “hardening of muscles” along her back; she also reported that she had spasms. She denied any flare-ups. She was noted to take Ultram for her symptoms, which did not relieve her symptoms. On examination, the Veteran had normal posture but had an antalgic gait. She did not have any swelling, effusion, tenderness, laxity, ankylosis, prosthesis, or other abnormalities. The examiner, however, did note that the Veteran had tenderness and increased tone on the trapezoid and paravertebral muscles along the back. Motor function, neurological, and sensory examinations were noted as normal at that time. Finally, the examiner noted that for the measurements of range of motion related to the Veteran’s thoracolumbar spine, the rater should refer to the May 4, 2009 examination report, although the Board reflects that such report does not indicate any range of motion findings but rather is a medical opinion only. In the conclusion of the report, the examiner noted that the Veteran has lumbar muscle spasms and again referred the rater to the May 4, 2009 examination report. In her July 2010 substantive appeal, VA Form 9, the Veteran indicated that she had increased pain, limitation of motion, and problems sitting, standing, and laying down. A May 2011 private MRI of the lumbar spine demonstrated ear spondylotic changes with mild inferior lumbar foraminal narrowing. The Veteran underwent another VA examination of her lumbar spine disability in March 16, 2012, at which time she was diagnosed as having lumbar discogenic disease with muscle spasms. She reported that her lumbar spine pain was worse. She reported having daily acute flare-ups. On examination, the Veteran had forward flexion to 35 degrees, with pain at 5 degrees; extension to 15 degrees, with pain at 5 degrees; bilateral lateral flexion to 20 degrees, with pain at 10 degrees; and bilateral rotation to 20 degrees, with pain at 10 degrees. After repetitive testing, she had 10 degrees of forward flexion, 5 degrees of extension, and 10 degrees of bilateral lateral flexion and rotation. The examiner noted that the Veteran had additional functional loss, which included less movement, weakened movement, excessive fatiguability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weightbearing. The examiner noted that the Veteran had tenderness of the lumbar paravertebral muscles and guarding and muscle spasms that resulted in an abnormal gait. Muscle strength and reflex testing were normal and the Veteran did not have any muscle atrophy. The examiner noted that the Veteran did not have IVDS and she did not need any assistive devices. Imaging scans demonstrated arthritis of the lumbar spine. Finally, the examiner found that the Veteran’s lumbar spine disability did not impact her ability to work. A private x-ray from December 2015 demonstrated Beastrup’s disease and degenerative joint disease (DJD) of the lumbar spine. The Veteran underwent a VA examination of her lumbar spine disability in February 2017, at which time she was diagnosed with lumbar discogenic disease with lumbar muscle spasms. She reported having severe pain and difficulty walking. On examination, the Veteran had forward flexion to 40 degrees, 10 degrees of extension and bilateral lateral flexion, and 15 degrees of bilateral rotation. The examiner noted that she had difficulty bending over, and that there was pain with weightbearing and on passive range of motion, although there was no pain during non-weightbearing. The examiner also noted that the Veteran had localized tenderness of the paravertebral muscles; she also had guarding and muscle spasms that did not result in abnormal gait or spinal contour. The examiner noted that the Veteran’s pain of the lumbar spine significantly limited functional ability during flare-ups, although there was no evidence of weakness, fatiguability, or incoordination. Motor function testing was normal and there was no muscle atrophy. The Veteran did not have ankylosis or IVDS of the thoracolumbar spine, and she did not require use of assistive devices. Finally, the examiner noted that the Veteran’s thoracolumbar spine did not impact her ability to work. The Veteran also underwent a VA examination of her lumbar spine disability in February 2018, at which time she was noted to have degenerative arthritis, IVDS, and lumbar discogenic disc disease. The Veteran reported constant low back pain and limitation in standing and walking; she also indicated that she had flare-ups, which caused her to stay at home. On examination, the Veteran had forward flexion to 30 degrees, 5 degrees of extension and bilateral lateral flexion, and bilateral rotation to 15 degrees. The Veteran had trouble dressing and undressing her lower half, and was limited in bending. She also had pain on weightbearing and during active and passive ranges of motion, although there was no pain during non-weightbearing. The examiner noted that the Veteran had guarding that did not result in abnormal gait or spinal contour; she did not have muscle spasms. There was no ankylosis of the thoracolumbar spine, and although there was evidence of IVDS, there were no episodes of physician-prescribed bedrest in the last 12-month period. She did not require assistive devices. The examiner finally found that the Veteran’s lumbar spine would limit her ability to lift 15-20 pounds and to walk. She would not be able to perform heavy lifting or stooping, although she would be able to secure a sedentary type of job with light duty precautions with periods of intermittent standing and sitting, such as a clerk or answering the telephone. VA treatment records demonstrate continued treatment for her lumbar spine disability. Those records reveal substantially similar findings to those noted above in the VA examination reports. Finally, private treatment records demonstrate continued treatment, including management of her pain, of her lumbar spine disability. Significantly, those records do not indicate any ankylosis of the thoracolumbar spine, or any prescription of bedrest for her lumbar spine disability by a physician. Based on the foregoing evidence, the Board finds that a 40 percent evaluation, but no higher, is warranted throughout the appeal period. The Board notes that the first evidence of record in this case of any range of motion testing is in the March 2012 examination report. Although the May 2009 examiner referred the rater to the May 4, 2009 lumbar spine examination report respecting range of motion measurements, the Board notes that examination report did not have any range of motion findings. Consequently, by resolving reasonable doubt in the Veteran’s favor in this case, the Board finds that the range of motion findings in the March 2012 examination report are most closely approximate to the functional impairment of the lumbar spine disability for the period prior to March 16, 2012 in this case. Such range of motion results demonstrate that the Veteran’s forward flexion of her thoracolumbar spine 30 degrees or less, which is commensurate to a 40 percent evaluation throughout the appeal period. An initial evaluation in excess of 40 percent, however, is not warranted in this case, as there is no evidence of ankylosis of the thoracolumbar spine at any time during the appeal period, as noted in the May 2009, March 2012, February 2017, and February 2018 VA examinations. Finally, throughout the appeal period, all the VA examiners but the most recent VA examiner found that the Veteran did not have IVDS of the thoracolumbar spine; the most recent VA examiner did not indicate that the Veteran had any incapacitating episodes, however. Nevertheless, even if the Board were to find that she had IVDS throughout the appeal period, there is no evidence of any incapacitating episodes or any episodes of physician-prescribed bedrest at any time during the appeal period, and certainly not evidence of at least 6 weeks during any 12-month period during the appeal period. Thus, a higher evaluation under Diagnostic Code 5243 is not warranted in this case. Accordingly, the Board finds that an initial 40 percent evaluation, but no higher, is warranted throughout the appeal period in this case based on the evidence of record at this time. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5242, 5243. In so reaching the above conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Initially, in the previous remand, the Board noted that the 1992-1993 DD Form 214 indicated that the Veteran had two months of prior military service. The Board directed the Agency of Original Jurisdiction (AOJ) to verify all periods of service, including periods of active duty, active duty for training (ACDUTRA), and inactive duty training (INACDUTRA/IDT). Such was not accomplished by the AOJ. A remand is therefore necessary. See Stegall v. West, 11 Vet. App. 268 (1998). Turning to the gastrointestinal claim, the AOJ was to obtain a VA examination and medical opinion; such was obtained in February 2017. The February 2017 VA examiner essentially indicated that the Veteran’s GERD most likely had its onset “prior to her periods of active service” given her description of their onset during the examination and the noted stomach complaints prior to August 1992 noted in the claims file. The examiner, however, indicated that the Veteran’s stomach complaints were noted in January 1982 and August 1983 service treatment records and that such correlated with the onset of the history of onset obtained during the examination. The examiner additionally noted that the Veteran’s diagnosis was rendered in 2006, many years after her discharge from service, making it less likely than not related to service. The examiner finally opined that the Veteran’s gastrointestinal disorders were not aggravated during service, as the records in the claims file did not show any complaints during service or within a year after discharge from service, or any aggravation such as hospitalizations or gastrointestinal bleeding. In light of this medical opinion, accurately and completely verifying any and all periods of service becomes highly relevant in this case, as it appears that the VA examiner has indicated that the current gastrointestinal disorders had their onset in 1982-1983 as noted in “service treatment records” noted in the claims file. Consequently, the Board must remand this case in order to obtain clarification as to whether the Veteran was on any type of military service in January 1982 or August 1983, and/or whether such complaints appear to indicate any worsening during subsequent periods of such service. A remand is also warranted in order to obtain an additional adequate VA examination and medical opinion that properly addresses the factual record in this case, as it is clear that the medical opinion obtained in February 2017 is based on a factually inaccurate record. Regarding the cervical spine disorder, the examiner opined that the Veteran’s cervical spine disorder was less likely than not related to military service, as she denied having neck pain or a neck condition during military service and denied injury via motor vehicle accident, trauma, or any other incident by lifting or carrying to involve her neck during military service years and stated clearly that she began to have gradual onset of neck pain and stiffness 2-3 years prior, which the examiner noted was unrelated to any trauma. The examiner noted that a review of the service treatment records did not have any indication of neck pain, neck injury, or neck condition during active service or within the first several years after separation from service. Regarding secondary service connection, the examiner opined that cervical degenerative disc disease (DDD) and degenerative joint disease (DJD) were less like than no due to or caused by her service-connected lumbar spine disability, as such does not predispose her to having cervical DDD or DJD; the examiner further indicated that the cervical spine was anatomically different from the lumbar spine, and lumbar spine DDD and arthritis less likely as not produced or induced cervical spine to develop DDD or DJD. As an aside notation, the examiner stated that there was “no evidence of aggravation of the cervical condition mentioned above by her already service connected lumbar spine condition.” These opinions are not adequate. With regard to direct service connection, the Board specifically requested that the examiner address the Veteran’s contentions that her current cervical spine disorder was related to physical activity and carrying heavy rucksacks during military service. The examiner does not mention any physical activity or carrying rucksacks in his opinion. The direct opinion is therefore not adequate. Likewise, the examiner’s secondary opinion does not indicate whether the Veteran’s lumbar spine caused her cervical spine disability other than to state that it is anatomically different and that having one does not predispose a person to the other. Regarding aggravation, the examiner noted that there was no aggravation but provided no rationale for that opinion. The Veteran has a significant lumbar spine disability that results in significant limitation of motion, altered gait, and weightbearing, as discussed above. She additionally has other service-connected feet and ankle disabilities. The examiner does not indicate whether those other orthopedic injuries and the functional impairments due to those disabilities have caused or aggravated the Veteran’s cervical spine disorder. Therefore, the February 2017 VA examiner’s cervical spine opinions are inadequate and a remand is necessary in order to obtain another VA examination and medical opinion that adequate address the Veteran’s contentions in this case and to ensure compliance with the Board’s previous remand instructions. Finally, the TDIU claim is intertwined with the remanded issues and must also be remanded at this time. The matters are REMANDED for the following action: 1. Verify with the appropriate official sources all of the Veteran’s periods of active duty, inactive duty for training (ACDUTRA), and inactive duty for training (INACDUTRA/IDT); in particular, verify the type of service, if any, served during the noted January 1982 and August 1983 service treatment records noting stomach complaints. All such periods of verified service should be specifically listed in a memorandum associated with the claims file, identifying the day of entry, date of separation, and type of military service served during that period. The Board notes that merely obtaining a retirement points report does not satisfy this Remand Directive and that the AOJ’s memorandum needs to be specific and exact with respect to the dates and types of service. The Board notes that no other subsequently-ordered development below should be completed prior to completion of this Remand directive. 2. Obtain all VA treatment records not already associated with the claims file from the San Juan VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 3. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner who has not previously participated in this case in order to determine whether she has any current cervical spine disorder is related to her service or her service-connected disabilities. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner should state any and all cervical spine disorders found, to include any arthritic conditions thereof. Then, for any cervical spine disorders found, the examiner should opine whether such at least as likely as not (50 percent or greater probability) began in service or is otherwise the result of military service, to include any physical activity therein and/or carrying heavy rucksacks. The examiner must specifically discuss the Veteran’s physical activities during service and carrying heavy rucksacks in any rendered medical opinion, regardless of whether there were any complaints or treatment for neck pain or symptoms in her service treatment records. For any arthritic conditions found, the examiner should additionally address whether such conditions were shown to have any initial manifestations either during service or within one year after discharge therefrom. Next, for any cervical spine disorder found that is not directly found to be related to service, the examiner should also opine whether any cervical spine disorders at least as likely as not were (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected disabilities, particularly the multitude of orthopedic disabilities and any effect such disabilities have on her gait or weightbearing. The examiner is reminded that he or she must address both prongs (a) and (b) above, and provide a rationale for both prongs. In addressing the above, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings opinions must be accompanied by a clear rationale. 4. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner who has not previously participated in this case in order to determine whether she has any current gastrointestinal disorder, to include GERD, is related to her service. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner should state any and all gastrointestinal disorders found, to include GERD. Then, for any gastrointestinal disorders found, to include GERD, the examiner should opine whether such at least as likely as not (50 percent or greater probability) began in service or is otherwise the result of military service. The examiner must address the noted January 1982 and August 1983 service treatment records noting stomach complaints. In addressing the above, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should additionally address the previous examiners’ findings and conclusions, particularly the February 2017 VA examiner’s opinion. The examiner should also consider any other pertinent evidence of record, as appropriate. All opinions must be accompanied by a clear rationale. James L. March Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel