Citation Nr: 18152181 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-20 473 DATE: November 21, 2018 ORDER A rating in excess of 10 percent for lumbar strain with intervertebral disc syndrome (IVDS), prior to July 10, 2014, is denied. A rating of 60 percent, but no more, for lumbar strain with IVDS, since July 10, 2014, is granted. REMANDED Entitlement to service connection for sleep apnea. Entitlement to service connection ulcers. Entitlement to service connection for erectile dysfunction. FINDINGS OF FACT 1. The Veteran had active duty service from July 1999 to September 2003, he has been rated 100 percent disabled since September 2012. 2. Prior to July 10, 2014, the lumbar spine disability was manifested by forward flexion to greater than 60 degrees with pain, weakness, fatigue, and incoordination, but without muscle spasm or guarding and resulting in an inability to lift heavy objects during flare-ups. 3. Since July 10, 2014, the lumbar spine disability has been productive of incapacitating episodes having a total duration of at least 6 weeks; ankylosis of the spine has not been shown. CONCLUSIONS OF LAW 1. Prior to July 10, 2014, the criteria for a rating in excess of 10 percent for lumbar strain with IVDS have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5235-5243 (2018). 2. Since July 10, 2014, the criteria for a rating of 60 percent, but no more, for lumbar strain with IVDS have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. § 4.71a, DCs 5235-5243 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. §Part 4. The Veteran’s lumbar spine disability has been rated at 10 percent under DC 5237 for lumbar strain with IVDS prior to July 10, 2014, and as 40 percent disabling thereafter. Lumbosacral spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, DCs 5235-5243. Intervertebral disc syndrome (IVDS) is rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Veteran has been rated under DC 5237 and the Board will consider all relevant diagnostic codes. A rating in excess of 10 percent will be warranted when the objective medical evidence shows the following: • forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees (20 percent); • combined range of motion of the thoracolumbar spine not greater than 120 degrees (20 percent); • muscle spasms or guarding that is severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent); • incapacitating episodes of IVDS having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); • or, in the absence of limitation of motion, degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations (20 percent). A rating in excess of 40 percent is warranted when the objective medical evidence shows the following: • unfavorable ankylosis of the entire thoracolumbar spine (50 percent); • incapacitating episodes of IVDS having a total duration of at least 6 weeks during the past 12 months (60 percent); • unfavorable ankylosis of the entire spine (100 percent). Prior to July 10, 2014 For the period prior to July 2014, a June 2013 VA examination noted forward flexion at worse to 65 degrees even with consideration of pain, and the combined range of motion of the thoracolumbar spine combined motion was greater than 120 degrees as flexion with pain was 65 degrees and extension, right and left lateral flexion, and right and left rotation to 15 degrees for a total of 140 degrees. There was no additional loss of motion on repetition of movement. The examiner noted contributing factors of pain, weakness, fatigability, and/or incoordination, and the Veteran reported inability to lift heavy objects during flare-ups. The Veteran did not exhibit guarding or muscles spasm of the thoracolumbar spine, and gait was antalgic due to his right knee. There was no ankylosis of the spine. Muscle strength and reflexes were all normal. Straight leg raise was positive on the right side and negative on the left. He had moderate intermittent pain and moderate paresthesias and or dysesthesias on the right side only. The examiner documented no incapacitating episodes due to the IVDS in the previous 12 months, and imaging studies revealed no arthritis. Further, he did not exhibit muscle spasms or guarding or incapacitating episodes to any degree, and there was no arthritis found on imaging. Consequently, a rating in excess of 10 percent is not warranted prior to July 10, 2014, and the appeal to that extent is denied. Since July 10, 2014 In July 2014 correspondence, the Veteran asserted that his low back disability had deteriorated. At a November 2014 VA examination, limitation of motion was worse but there was no ankylosis. Importantly, he examiner documented that the Veteran had experienced incapacitating episodes for at least six weeks total in the previous 12 months. Based on that medical finding, a 60 percent rating is warranted. A rating in excess of 60 percent requires unfavorable ankylosis of the entire spine, which was not found during the appeal period. In addition, a review of the VA treatment notes of record reflects complaints of back pain, but does not reveal description or findings of symptoms that are more severe than those discussed above. Accordingly, based on the VA examination and clinical findings, a rating in excess of 10 percent is not supported by the medical evidence prior to July 10, 2014, but a 60 percent rating, but no more, is warranted thereafter. Consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Service connection is already in effect for radiculopathy of the left and right lower extremities and the ratings assigned to those disabilities have not been appealed. Thus, the question of entitlement to separate ratings for neurological disabilities associated with the service-connected spine disability is not before the Board. The Board has also considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of his lumbar spine according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s lumbar spine has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and a rating in excess of 10 percent for lumbar spine disability is denied prior to July 10, 2014, but a 60 percent rating is assigned thereafter. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In accordance with the Board’s August 2018 remand, the Veteran underwent examinations to assess the etiology of sleep apnea, ulcers, and erectile dysfunction in October 2018. However, no supplemental statement of the case (SSOC) adjudicating the claims in light of this new evidence was provided. The law provides that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration. However, that provision only applies to evidence submitted by the Veteran. Thus, the Veteran is not presumed to have waived RO consideration of the October 2018 VA examination reports. Moreover, the August 2018 remand ordered that an SSOC was to be issued after the development was completed. Therefore, the AOJ did not comply with the August 2018 remand orders. The matters are REMANDED for the following action: Issue an SSOC adjudicating the claims for service connection for sleep apnea, ulcers, and erectile dysfunction with consideration of all evidence associated with the claims file since the April 2015 statement of the   case, and the Veteran and his attorney should be afforded the requisite opportunity to respond. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel