Citation Nr: 18142526 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 09-41 976A DATE: October 16, 2018 ORDER A rating in excess of 20 percent for service-connected degenerative disc disease, L5-S1 of lumbar spine (hereinafter, “low back disorder”) prior to March 23, 2017, is denied. A rating in excess of 40 percent for service-connected low back disorder from March 23, 2017, is denied. REMANDED Entitlement to a rating in excess of 10 percent for service-connected flat feet with swollen metatarsal areas is remanded. Entitlement to a rating in excess of 10 percent for service-connected skin rash of the face is remanded. FINDING OF FACT 1. Prior to March 23, 2017, the record does not reflect the Veteran’s service-connected low back disorder was not manifested by forward flexion of the spine limited to less than 30 degrees even when taking into account her complaints of pain. 2. From March 23, 2017, the record does not reflect the Veteran’s service-connected low back disorder has been manifested by ankylosis. 3. The record does not reflect the Veteran’s service-connected low back disorder has been manifested by associated neurologic impairment other than the already separately evaluated radiculopathy of the bilateral lower extremities; nor incapacitating episodes as defined by VA regulations. CONCLUSION OF LAW 1. The criteria for a rating in excess of 20 percent for service-connected low back disorder prior to March 23, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235-5243. 2. The criteria for a rating in excess of 40 percent for service-connected low back disorder from March 23, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1994 to December 1995. This matter is before the Board of Veterans’ Appeals (Board) originally on appeal from a November 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony on her low back, flat feet, and skin rash claims at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2016. A transcript of that hearing is of record. In October 2016, the Board, in pertinent part, determined that the Veteran was entitled to at least a 20 percent rating for her service-connected low back disorder throughout the appeal period. The Board remanded the issue of entitlement to a rating in excess of 20 percent for the low back disorder, as well as the flat feet and skin rash claims, for further development. The case has now been returned to the Board for additional appellate consideration. However, for the reasons detailed below, the Board finds that further development is still required regarding the flat feet and skin rash claims. As an additional matter, the Board notes that the November 2016 remand also included the issue of entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability. However, while on remand a September 2017 rating decision assigned a TDIU effective February 8, 2017. As the record does not reflect the Veteran has submitted a Notice of Disagreement (NOD) with respect to the effective date for that TDIU, the Board will not address the TDIU as part of this decision. The Board also notes the record reflects the Veteran has perfected an appeal on other issues including entitlement to service connection for bilateral ankle disabilities, migraines, and a urinary disability to include stress and urge incontinence. However, these issues appear to be part of a separate appeal stream that are not yet ripe for appellate adjudication. In pertinent part, the Veteran indicated in a November 2017 Form 9 (Appeal to the Board) that he desired a Board hearing for these additional issues, and no such hearing appears to have been conducted. 1. Entitlement to a rating in excess of 20 percent for service-connected low back disorder prior to March 23, 2017; and to a rating in excess of 40 percent thereafter. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. More recently, the Court held that “staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran is already in receipt of such “staged” ratings for her service-connected low back disorder. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Initially, the Board notes that the record reflects the Veteran’s service-connected low back disorder has been manifested by pain and limited motion throughout the pendency of this case. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 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. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). The General Rating Formula for Diseases and Injuries of the Spine provides that 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, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. An evaluation of 20 percent is warranted for 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. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51,455 (Aug. 27, 2003). In this case, the Board finds that prior to March 23, 2017, the record does not reflect the Veteran’s service-connected low back disorder was not manifested by forward flexion of the spine limited to less than 30 degrees even when taking into account her complaints of pain. For example, an August 2006 VA examination found he had forward flexion to 90 degrees, even with pain in the mid/low back and radiation to right lower side. A subsequent July 2007 VA examination noted forward flexion to 80 degrees, with objective evidence of pain at 60 degrees. A July 2009 VA examination noted forward flexion to 72 degrees, with objective evidence of pain at 60 degrees. However, it is noted the Veteran criticized the adequacy of the July 2009 VA examination findings in a November 2009 statement. Thereafter, an August 2011 VA examination showed initial forward flexion to 55 degrees, with objective evidence of pain at 50 degrees. Following repetitive motion testing, he had forward flexion noted to 50 degrees. A July 2015 VA examination again showed forward flexion to 55 degrees, with no additional loss of motion following repetition testing. A November 2016 VA examination noted initial forward flexion to 80 degrees, with no change following repetitive motion testing. In addition, the examiner stated that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Moreover, the examiner indicated an opinion could not be provided regarding the extent of additional loss during flare-ups without resort to speculation. In short, none of the aforementioned VA examinations reflect the Veteran had limitation of forward flexion to the extent necessary for a rating in excess of 20 percent during this period, to include during flare-ups. The Board also notes, as detailed above, that various examinations included repetitive motion testing in an effort to stimulate the effect of flare-ups on the Veteran’s range of motion. Further, there is no indication of such impairment in the other evidence of record to include the medical treatment records. The Board acknowledges that the record reflects the Veteran took medication to treat her back symptoms, including pain, during this period. Moreover, the Board is cognizant the Court held in Jones v. Shinseki, 26 Vet. App. 56 (2012), that in assigning a disability rating, VA may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. In fact, that was the basis for the Board’s October 2016 decision that at least a 20 percent rating was warranted for the entire appeal period, as the Board noted the Veteran had consistently used pain medication with some relief and it appeared there would be additional functional limitation without such medication. Nevertheless, there is nothing in the record showing the Veteran would have such additional functional limitation to the extent necessary for a rating in excess of 20 percent for the period prior to March 23, 2017. The Board further finds that from March 23, 2017, the record does not reflect the Veteran’s service-connected low back disorder has been manifested by ankylosis. In fact, the March 2017 VA examination explicitly found he did not have ankylosis; as did the prior VA examinations in August 2006, July 2007, July 2015, and November 2016. In addition, there are no findings of ankylosis in the medical treatment records. The Board also notes that as 40 percent is the highest schedular rating for limitation of motion of the spine, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not for application. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board has also considered the potential applicability of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under this Formula, a 10 percent evaluation is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. An evaluation of 20 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. An evaluation of 40 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, an evaluation of 60 percent requires intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is 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. See 38 C.F.R. § 4.71a, Intervertebral Disc Syndrome, Note (1); see also 69 Fed. Reg. 32, 449 (June 10, 2004). The Board notes the Veteran reported at her July 2007 VA examination that she had approximately 5 to 6 incapacitating episodes in the past 12 months, each lasting about a day. However, the record does not show that she had period(s) of acute signs and symptoms that required bed rest prescribed by a physician during this period. Moreover, the July 2015, November 2016, and March 2017 VA examinations all found the Veteran did not have incapacitating episodes as defined by VA regulations. As such, this Formula is for application in the instant case. The Board also acknowledges that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provides that associated neurological abnormalities (e.g., bowel or bladder impairment) are now for evaluation separately. However, the record does not reflect the Veteran’s service-connected low back disorder has been manifested by associate ed neurologic impairment other than the already separately evaluated radiculopathy of the bilateral lower extremities. For example, the July 2015, November 2016, and March 2017 VA examinations all found he did not have such associated neurologic abnormalities. The Veteran has contended he is entitled to service connection for stress and urge incontinence secondary to the low back disorder, but that is an issue affected by a separate appeal stream and not yet ripe for adjudication. For these reasons, the Board finds the Veteran does not meet or nearly approximate the criteria for a rating in excess of 20 percent for her service-connected low back disorder prior to March 23, 2017; or a rating in excess of 40 percent thereafter. Therefore, the preponderance of the evidence is against these claims, and the benefit sought on appeal must be denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for service-connected flat feet is remanded. 2. Entitlement to a rating in excess of 10 percent for service-connected skin rash of the face is remanded. The Board notes that the Veteran has also been accorded multiple VA examinations for her service-connected flat feet and skin rash of the face during the pendency of this appeal. However, the Veteran has contended the evidence of record does not adequately evaluate these disabilities. In pertinent part, a February 2018 written brief presentation from her accredited representative contended the skin rash had never been adequately evaluated, and criticized the adequacy of the 2017 VA examination of her flat feet. No such contentions appear to have been made regarding the recent March 2017 VA examination of her service-connected low back disorder. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). In view of the Veteran’s contentions, the Board finds a remand is required to accord the Veteran new competent medical examinations of her service-connected flat feet and skin rash of the face. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records for the Veteran which cover the period from June 2017 to the present. 2. Request the Veteran identify all private medical care providers who have treated her for her flat feet and skin rash of the face from June 2017 to the present. After obtaining any necessary release, request those records not on file. 3. Notify the Veteran that she may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of her flat feet and skin rash symptoms and the impact of these conditions on her ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for examination(s) by an appropriately qualified clinician(s) to evaluate the current nature and severity of her service-connected flat feet and skin rash of the face. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel