Citation Nr: 18150172 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-24 551A DATE: November 14, 2018 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. The claim for a rating in excess of 10 percent prior the May 12, 2016 and in excess of 20 percent thereafter for a lumbar spine disability is denied. Service connection for radiculopathy of the left lower extremity is granted. Service connection for radiculopathy of the right lower extremity is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his GERD is at least as likely as not related to his active military service. 2. Prior to May 12, 2016, the evidence of record did not show forward flexion functionally limited to 60 degrees or less or combined ranges of lumbar motion functionally limited to 120 degrees or less; and the Veteran’s lumbar spine was not shown to be productive of either muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 3. Since May 12, 2016, the Veteran’s back disability has not been shown to be functionally limited to 30 degrees or less. 4. At no time during the appeal period, has the Veteran been shown to have had bed rest prescribed by a physician to treat IVDS. 5. At no time during the appeal period, has spinal ankylosis been diagnosed. 6. The Veteran’s back disability is shown to be productive mild of neurologic impairment in the left lower extremity. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for a rating in excess of 10 percent prior the May 12, 2016 and in excess of 20 percent thereafter for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243. 3. The criteria for a 10 percent rating for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active service from September 1986 to June 1992. 1. Entitlement to service connection for gastroesophageal reflux disease (GERD). The Veteran is seeking service connection for GERD. A review of the Veteran’s service treatment records shows that he was assessed with a long history of indigestion in November 1988 and on his separation examination report, while he was assessed with normal gastrointestinal conditions, he self-reported frequent indigestion with milk and stress. A July 1992 VA examination report showed normal gastrointestinal review except for a five-year history of aerophagia and postprandial pyrosis in association with periods of anxiety. Belching was noted to temporarily relieve the distress although epigastric burning would usually persist for perhaps 6 to 10 hours. A July 2014 VA examination report shows that the Veteran was diagnosed with GERD. The examiner determined that it was less likely than not that GERD was related to active service to included in-service treatments for indigestion. The examiner’s rationale was based on medical literature review, medical records review, clinical experience, and a review of available records. The examiner noted that Veteran’s in-service reports of indigestion and flatulence during service. The examiner remarked that there was no objective evidence of GERD related problems during service, nor was there continuity of symptomatology in close proximity to his release from active service. A September 2014 private treatment report showed that the Veteran’s private physician determined that GERD was as likely as not caused by stress which onset during the military and persisted after discharge. The private physician noted a review of the Veteran’s service treatment and private medical records. In reviewing the evidence of record, the Board finds that the evidence is at least in equipoise regarding the Veteran’s claim of entitlement to service connection for GERD. The Board is aware of the conflicting medical evidence as to whether the Veteran’s current GERD is related to service. However, the Board concludes that in this case, as it now stands, the evidence of record is at least in relative equipoise. The Board finds that none of the medical opinions are more probative than the other opinions of record. The Veteran’s private September 2014 evaluation report shows that the Veteran’s GERD was related to service to include as due to his service reports of indigestion caused by anxiety. The July 2014 VA examiner, in contrast, determined that the Veteran’s GERD was not incurred in or related to active service. Additionally, the Board notes that service treatment records show treatments for indigestion. The Board finds that each medical opinion is supported by a reasoned analysis of medical facts. Neives-Rodriguuez v. Peake, 22 Vet. App. 295 (2008). The Board finds that the medical opinions and diagnoses in this case are at least in equipoise as to whether the Veteran’s GERD is related to his active service. When evidence is in relative equipoise, reasonable doubt must be decided in the appellant’s favor. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for GERD is warranted. 2. Entitlement to a rating in excess of 10 percent prior the May 12, 2016 and in excess of 20 percent thereafter for a lumbar spine disability. In January 2014, the Veteran filed a claim seeking an increased rating for his back. During the course of his appeal, his rating was increased from 10 to 20 percent as of the date of a VA examination May 12, 2016 which showed for the first time that a higher rating was warranted. Under the current criteria, back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record does not show that the Veteran has been prescribed bed rest to treat incapacitating episodes of IVDS, or even that the Veteran has had IVDS at any time during the appeal period. He has not argued to the contrary. For example, both VA spine examiners stated that the Veteran did not have IVDS, and neither stated that bed rest had ever been prescribed for IVDS treatment. Further, neither the Veteran’s private nor VA treatment records show that he has ever been prescribed bed rest for IVDS during the appeal period. Because the prescription of bed rest for IVDS is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, here, a rating based on IVDS is not appropriate and the Veteran’s lumbar spine disability will thus be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, DC 5237. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 In July 2014, the Veteran underwent a VA examination at which he demonstrated 80 degrees of forward flexion, extension to 15 degrees, lateral rotation and flexion to 30 degrees bilaterally. The Veteran was able to perform repetitive-use testing with three repetitions, which did not cause any additional limitation of motion on any measurement. The examiner stated that the Veteran did not have any functional loss and/or functional impairment of the thoracolumbar spine. There was no localized tenderness or pain to palpation, no guarding or muscle spasm, no muscle atrophy, and all muscle strength tests were normal. No other range of motion is of record prior to 2016. At the 2014 examination, range of motion testing did not show forward flexion functionally limited to 60 degrees or less or combined ranges of lumbar motion functionally limited to 120 degrees or less. Additionally, the Veteran’s lumbar spine was not shown to be productive of either muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. As such, a rating in excess of 10 percent is not supported prior to the VA examination in 2016. In reaching this conclusion, the Board has considered whether a higher rating is warranted based on functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. Here, the evidence shows that repetitive motion testing was completed but did not cause any decrease in the range of motion. The Veteran did report experiencing flare-ups of back pain, but the frequency did not appear to be sufficient to warrant the assignment of a higher rating. The Veteran underwent a second VA examination in May 2016 which led to the assignment of a 20 percent rating. At the examination the Veteran demonstrated forward flexion to 40 degrees. Additionally, the examiner noted that the Veteran was able to bend over and put on his clothes without any obvious evidence of pain., and repetitive motion testing did not show that the Veteran’s forward flexion was functionally limited to 30 degrees or less. VA regulations also provide that in addition to orthopedic impairment of a back disability, neurologic impairment should be rated separately. Here, the Veteran reported experiencing pain that radiated down his left side and noted that he had been prescribed neurotin at the July 2014 VA examination. The examiner diagnosed mild radiculopathy in the left lower extremity. It was noted that there was no radiculopathy in his right lower extremity. In September 2014, the Veteran was seen for a neurology consultation at which he reported experiencing pain radiating down his left lower extremity for the previous several years. Straight leg raises were positive on the left, and the medical professional diagnosed left side sciatica. At the more recent VA examination in 2016, the examiner found no radiculopathy. However, the examiner acknowledged that the Veteran had voiced subjective complaints of radiculopathy in the left lower extremity and imaging showed what could be acute radiculopathy. Here, the evidence of record shows that the Veteran has consistently complained about pain in his left lower extremity, has sought medical treatment for it (such as a neurology consultation), and has been prescribed medication to treat it. As such, the Board is satisfied that the symptomatology the Veteran experiences in his left lower extremity is the result of his service connected back disability and that a separate rating is warranted for it. The evidence of record does not appear to show any right lower extremity radiculopathy. As the radiculopathy in the left lower extremity has been found to be mild on VA examination, a 10 percent rating is warranted under Diagnostic Code 8520. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel