Citation Nr: 18144166 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 15-06 622 DATE: October 24, 2018 ORDER The application to reopen the claim for service connection for posttraumatic stress disorder is denied. Entitlement to a rating in excess of 20 percent prior to January 29, 2015 for facet arthritis and degenerative disc disease, thoracolumbar spine with intervertebral disc syndrome (IVDS), is denied. Entitlement to a rating in excess of 40 percent for facet arthritis and degenerative disc disease, thoracolumbar spine with intervertebral disc syndrome (IVDS), is denied. Entitlement to a rating in excess of 20 percent prior to April 14, 2015 for cervical spine strain with degenerative changes, C5-C6, C6-C7 with intervertebral disc syndrome (IVDS), is denied. Entitlement to a rating in excess of 30 percent for cervical spine strain with degenerative changes, C5-C6, C6-C7 with intervertebral disc syndrome (IVDS), is denied. REMANDED Entitlement to a total disability rating based on individual unemployability for the period prior to February 11, 2016 is remanded. FINDINGS OF FACT 1. In a September 2010 rating decision, the RO denied service connection for post-traumatic stress disorder. 2. The evidence received since the September 2010 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for post-traumatic stress disorder. 3. Prior to January 29, 2015, facet arthritis and degenerative disc disease was manifested by pain and stiffness. Forward flexion to 30 degrees or less was not shown. The appellant failed to report for examination. 4. From April 1, 2015 forward, facet arthritis and degenerative disc disease is manifested by pain, stiffness, interference with walking, sitting and standing, and limitation of forward flexion to 25 degrees at worst. There is no ankylosis. 5. Prior to April 14, 2015, cervical spine strain with degenerative changes was manifested by pain and stiffness. Forward flexion of 15 degrees or less was not shown. The appellant failed to report for examination. 6. From April 14, 2015 forward, cervical spine strain with degenerative changes was manifested by pain and stiffness, with limitation of combined range of motion to 135 degrees at worst. There is no ankylosis. CONCLUSIONS OF LAW 1. The September 2010 rating decision denying service connection for post-traumatic stress disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received with respect to the claim of service connection for post-traumatic stress disorder; therefore, the claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for a rating in excess of 20 percent prior to January 29, 2015 for facet arthritis and degenerative disc disease, thoracolumbar spine with intervertebral disc syndrome (IVDS), have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 4. The criteria for a rating in excess of 40 percent from April 1, 2015 forward for facet arthritis and degenerative disc disease, thoracolumbar spine with intervertebral disc syndrome (IVDS), have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 5. The criteria for a rating in excess of 20 percent prior to April 14, 2015 for cervical spine strain with degenerative changes, C5-C6, C6-C7 with intervertebral disc syndrome (IVDS), have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 6. The criteria for a rating in excess of 30 percent from April 14, 2015 forward for cervical spine strain with degenerative changes, C5-C6, C6-C7 with intervertebral disc syndrome (IVDS), have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1982 to November 1985 and from September 1986 to March 2003. 1. New and material evidence for service connection for posttraumatic stress disorder In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510,513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that the threshold was low. In a September 2010 rating decision, the RO denied service connection for post-traumatic stress disorder (PTSD), citing a lack of evidence of PTSD manifest in service and lack of evidence to support the Veteran’s stated in-service stressor. No notice of disagreement or new and material evidence was filed within one year. In April 2012, the Veteran submitted another claim for service connection for PTSD. However, no new evidence was submitted which related to his claimed PTSD or a possible link to his active duty, even after multiple requests from the RO. There is no new and material evidence. Therefore, the claim is not reopened. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 2. Entitlement to a rating in excess of 20 percent from April 2012 to January 29, 2015, and in excess of 40 percent from April 1, 2015 forward, for facet arthritis and degenerative disc disease, thoracolumbar spine with intervertebral disc syndrome (IVDS) The Veteran’s facet arthritis and degenerative disc disease is rated under Diagnostic 5243, covering intervertebral disc syndrome. All spine disabilities covered by Diagnostic Codes 5235 to 5243 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated 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. Id. Under the General Formula, a 20 percent rating is warranted for the thoracolumbar spine when forward flexion is limited to 60 degrees or less, the combined range of motion is limited to 120 degrees or less, or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. A 40 percent rating is warranted when forward flexion is limited to 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. Id. Back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), which applies to Intervertebral Disc Syndrome (IVDS). See 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. An “incapacitating episode” for purposes of totaling the cumulative time is defined as “period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. 20 percent rating The Veteran submitted an application for an increased rating on April 19, 2012. However, no evidence was submitted along with the application regarding symptoms or limitation of range of motion. The Veteran failed to appear for his scheduled VA examination and failed to provide good cause. There are no medical records from this time period to indicate the Veteran’s condition during this time. Accordingly, a rating in excess of 20 percent is not warranted for the period prior to January 29, 2015. As noted by the Court, the duty to assist is not a one-way street or a blind alley. 40 percent rating The Veteran received a VA examination on April 15, 2015, three months after his lumbar spine fusion. The examiner noted subjective reports of constant upper and lower back pain that flares with standing, going up stairs and walking. Upon examination the Veteran exhibited forward flexion to 25 degrees after repetitive testing. The examiner noted functional loss as less movement than normal, weakened movement, excess fatigability, pain on movement, and disturbance of locomotion. There was guarding or muscle spasm resulting in abnormal gait. There was no ankylosis. IVDS was present, but there were no incapacitating episodes within the previous 12 months. Another VA examination was conducted in February 2016. The examiner noted subjective reports of pain and stiffness, with limited range of motion and flare-ups that result in severe pain and inability to sit or stand. Upon examination the Veteran exhibited forward flexion of 20 degrees after repetitive testing. The examiner noted that the examination results were consistent with the Veteran’s statements regarding functional loss and flare-ups. There was no ankylosis. IVDS was present, and the examiner stated that there were episodes of bed rest having a total duration of at least 6 weeks during the previous 12 months. However, the examiner clarified that the bed rest was for the convalescent period following the Veteran’s lumbar surgery. The current evaluation contemplates pain on motion and flexion of 30 degrees or less. To warrant a higher evaluation, there must be unfavorable ankylosis of the entire thoracolumbar spine. All of the objective medical evidence shows that while the Veteran has significant limitation of motion of the thoracolumbar spine, it is not limited to the level required for a 50 percent rating, as there is no unfavorable ankylosis. In evaluating the Veteran’s current level of disability for the period on appeal, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The medical evidence shows that the Veteran has, at different times, complained of pain on motion, flare-ups of varying frequency, weakness, and difficulty sitting or standing for prolonged periods, which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372. However, each VA examiner noted the presence of these factors and noted any further loss of motion after repetitive testing. DeLuca v. Brown, 8 Vet. App. 202 (1995). None of the examinations found additional loss of motion sufficient for a higher rating. As such, the Board finds that the Veteran’s statements concerning additional functional loss are outweighed by the medical evidence of record. 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran has reported frequent flare-ups. However, even when we account for pain on use and flare-ups, there is no unfavorable ankylosis to warrant a higher evaluation. No additional higher or alternative ratings under different Diagnostic Codes can be applied. The Veteran does have IVDS, but he has had no incapacitating episodes to qualify under Diagnostic Code 5243. Although the February 2016 examiner noted episodes resulting in bed rest for at least 6 weeks during the previous 12 months, the bed rest was for post-operative convalescence. The Veteran was granted a 100 percent rating for that period. There is no indication that it is indicative of his overall condition. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. The Veteran has been service-connected for his radiculopathy symptoms, and has expressed no disagreement with those ratings. No other neurologic abnormalities or bowel or bladder impairments have been noted as being associated with the Veteran’s facet arthritis with degenerative disc disease. As such, additional separate compensable ratings are not warranted. 38 C.F.R. § 4.71a, General Formula, Note 1. 3. Entitlement to a rating in excess of 20 percent from April 2012 to April 14, 2015, and in excess of 30 percent from April 14, 2015 forward, for cervical spine strain with degenerative changes, C5-C6, C6-C7 with intervertebral disc syndrome (IVDS) Under the General Formula, a 20 percent rating for the cervical spine is warranted when forward flexion is limited to 30 degrees or less or the combined range of motion is limited to 170 degrees or less. A 30 percent rating is warranted when forward flexion is limited to 15 degrees or less or there is favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine, and a 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. 20 percent rating The Veteran submitted an application for an increased rating on April 19, 2012. However, no evidence was submitted along with the application regarding symptoms or limitation of range of motion. The Veteran failed to appear for his scheduled VA examination and failed to provide good cause. There are no medical records from this time period to indicate the Veteran’s condition during this time. Accordingly, a rating in excess of 20 percent is not warranted for the period from April 19, 2012 to April 14, 2015. 30 percent rating The Veteran received a VA examination for his cervical spine strain with degenerative changes on April 14, 2015. The examiner noted subjective reports of constant pain that flares up with movement and reading, stiffness, and numbness and tingling in both hands and shoulders. Upon examination the Veteran exhibited forward flexion to 20 degrees after repetitive testing. The examiner noted that functional loss after repetitive testing was less movement than normal and pain on movement, resulting in an additional 5 degrees of limitation of forward flexion. There was no ankylosis. IVDS was present, but there were no incapacitating episodes in the previous 12 months. The current evaluation contemplates pain on motion and flexion of 15 degrees or less. To warrant a higher evaluation there must be unfavorable ankylosis of the entire cervical spine. All of the objective medical evidence shows that while the Veteran has significant limitation of movement of the cervical spine, it is not limited to the level required for a 40 percent rating – there is no unfavorable ankylosis. In evaluating the Veteran’s current level of disability for the period on appeal, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The medical evidence shows that the Veteran has, at different times, complained of pain on motion, flare-ups of varying frequency, weakness, and difficulty sitting or standing for prolonged periods, which he is competent to report. Jandreau, 492 F.3d 1372. However, the VA examiner noted the presence of these factors and noted any further loss of motion after repetitive testing. DeLuca v. Brown, 8 Vet. App. 202 (1995). The examination did not find additional loss of motion sufficient for a higher rating. 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran has reported frequent flare-ups. The examination results were noted to be consistent with his reports of functional loss due to flare-ups. We note that even when we account for pain on use and flare-ups, there is no unfavorable ankylosis. No additional higher or alternative ratings under different Diagnostic Codes can be applied. The Veteran does have IVDS, but he has had no incapacitating episodes to qualify under Diagnostic Code 5243. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. The Veteran has since been service-connected for his reported radiculopathy symptoms. No disagreement has been expressed with those ratings. A rating in excess of 30 percent for cervical spine strain with degenerative changes is not warranted. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability for the period prior to February 11, 2016. The Veteran is rated at a combined 100 percent from February 11, 2016. However, he reported at his April 2015 VA examinations that his lumbar and cervical spine disabilities interfered with his ability to work. The issue of entitlement to a TDIU for the period prior to February 11, 2016 has therefore been raised by the record. However, there is no VA Form 21-8940 of record. The matter is REMANDED for the following action: 1. Contact the Veteran and request that he file a completed application for increased compensation based on unemployability (VA Form 21-8940), and upon receipt of this form, take any appropriate action deemed necessary to adjudicate his TDIU claim. H.N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel