Citation Nr: 18142439 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 12-05 420 DATE: October 15, 2018 ORDER Entitlement to service connection for a neck disorder is granted. Entitlement to a rating greater than 20 percent for a low back disorder is denied. Entitlement to special monthly compensation (SMC) based upon aid and attendance (A&A) is granted. FINDINGS OF FACT 1. Service caused the Veteran’s neck disorder. 2. Range of motion testing, even contemplating functional limitation due to pain, weakness, stiffness, fatigability, lack of endurance, and repetitive motion etc., has not been shown to functionally limit the forward flexion of the Veteran’s thoracolumbar spine to 30 degrees or favorable ankylosis of the entire thoracolumbar spine. 3. Service-connected disabilities cause the need for aid and attendance. CONCLUSIONS OF LAW 1. The criteria for direct service connection for a neck disorder have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. From February 6, 2015 to May 3, 2108, the criteria for a rating greater than 20 percent for a low back disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Codes 5235-5243. 3. SMC criteria for need for aid and attendance are met. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1994 to July 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). VA has rated the Veteran 100 percent disabled since October 23, 2008. Direct Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Issue 1: Entitlement to service connection for a neck disorder The Veteran has a neck disorder. This satisfies the first prong of a direct service connection claim. The Veteran testified in October 2013 that, upon entering service, he "fell down two flights of stairs and landed on [his] neck but [he] went a few weeks without saying anything." The undersigned has reviewed the Veteran's service treatment records. They do not show evidence of a fall, but an August 29, 1994 record shows repeated visits for low back pain with a history of "several weeks." As the Veteran entered service on August 4, 1994, this buttresses his statement. The undersigned will resolve doubt in his favor and find that he fell as he has claimed. This event the second prong of a direct service connection claim. The appeal turns on the third prong of a direct service connection claim – medical nexus. VA examined the Veteran for compensation purposes in January 2018 pursuant to a June 2017 Remand from the undersigned. The examiner opined that "there are no findings in medical records provided indicating issues while in service or following years to ascribe service correlation to current diagnosis devoid of speculation." This conclusion is false. A December 2013 VA treatment record shows the Veteran had "chronic pain" in his neck, lower back and right ankle because of a history because of a fall injury in service in 1994. The undersigned could order additional medical inquiry, but finds this would not materially alter the analysis of this claim. Accordingly, the undersigned finds the Veteran has satisfied the third prong of a direct service connection claim. The Veteran has met all three prongs of a direct service connection claim. Therefore, the Board will grant the appeal. Increased Rating Issue 2: Entitlement to a rating greater than 20 percent for a low back disorder Under the General Rating Formula for Diseases and Injuries of the Spine (Spine Formula), with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area of the spine affected by the residuals of injury or disease, a 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is 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 is 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5237 (2016). A 40 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. Id. In addition to the Spine Formula, VA’s regulations contain a Formula for Rating IVDS Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2016). Ratings under this diagnostic code are assigned according to the duration of “incapacitating episodes” throughout the year due to IVDS. An “incapacitating episode” is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. Pertinent to the current appeal, a 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. Finally, a 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. The undersigned found, in the June 2017 Remand, that the VA compensation examinations that VA conducted for this issue during the pendency of the appeal to that point all violated Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, the undersigned ordered a new examination before the undersigned decided the issue. VA examined the Veteran in January 2018. In this examination, the Veteran was diagnosed with a low back disorder. The examiner noted that the Veteran’s thoracolumbar range of motion was: flexion (90 degrees); extension (30 degrees); left lateral flexion (30 degrees); left lateral rotation (30 degrees); right lateral flexion (30 degrees), and right lateral rotation (30 degrees). The total range of motion was 240 degrees. The examiner found the Veteran had no additional limitation in range of motion testing following repetitive-use testing. The Veteran’s symptoms do not support a rating greater than 20 percent under the Spine Formula. Indeed, they do not support a compensable rating because the Veteran’s forward flexion measurements exceeded 85 degrees and the total range of motion of the thoracolumbar spine exceeded 235 degrees. However, the Board will not disturb VA's rating. Moreover, no increase is warranted because of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under these regulations for the low back. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, while painful motion is an important factor of disability, and joints that are painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint under 38 C.F.R. § 4.59, this is not relevant here because the Veteran is receiving a rating greater than the minimum compensable rating for the joint. Issue 3: Entitlement to SMC based upon A&A. Under 38 U.S.C. § 1114(l), a higher level of disability compensation, referred to as “special monthly compensation” is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to need regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 U.S.C. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: inability of the claimant to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. VA does not require that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The personal functions which the Veteran is unable to perform should be considered regarding his condition. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of special monthly compensation based on need for aid and attendance). VA has service-connected seven disabilities for the Veteran: 1) migraine headaches, rated as 50 percent disabling; 2) posttraumatic stress disorder, rated as 50 percent disabling; 3) a right ankle disorder, rated as 40 percent disabling; 4) residuals of a head injury, rated as 40 percent disabling; and 5) a left shoulder disorder, rated as 20 percent disabling; 6) a gastric ulcer, rated as 20 percent disabling; 7) a low back disorder, rated as 20 percent disabling. (Continued on the next page)   VA examined the Veteran in January 2018 for this issue, with the examiner completing a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. This report is fundamentally flawed because, according to section 19 of the report, the examiner restricted his analysis to only one of the Veteran’s seven service-connected disabilities – the right ankle disorder. The undersigned, notwithstanding this shortcoming, finds the Veteran, pursuant to 38 C.F.R. §3.350(b), “so helpless as to be in need of regular aid and attendance.” Specifically, the Veteran testified in October 2013 that, because the Social Security Administration declared him disabled because of his right knee disorder and PTSD, Medicaid provides him the functional equivalent of the benefit he currently seeks from VA. He stated Medicaid “awarded 62 hours [of assistance] a month. So they come in and do quite a bit, cleaning, cooking, laundry. They’re doing, um, you know, uh, some personal hygiene things, like shaving. They’re also, um, you know, making my bed, ironing my clothes.” It is clear, based on this information and pursuant to 38 C.F.R. §3.350(b)(3), that the Veteran has established a factual need for regular aid and attendance under the criteria set forth in 38 C.F.R. §3.352(a). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Sopko, Counsel