Citation Nr: 18158320 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-47 101 DATE: December 14, 2018 ORDER The appeal of the increased rating claim for bilateral metatarsalgia is dismissed. The appeal of the increased rating claim for bilateral hammertoes is dismissed. The appeal of the increased rating claim for right foot hallux valgus is dismissed. The appeal of the increased rating claim for dermatitis is dismissed. The appeal of the service connection claim for a right hand disorder is dismissed. The appeal of the service connection claim for a lung disorder is dismissed. The appeal of the service connection claim for psychosis for the purpose of establishing eligibility to treatment is dismissed. New and material evidence has not been presented, and the Veteran’s claim for entitlement to service connection for a cervical spine disorder is not reopened. Service connection for a depressive disorder is granted. A rating in excess of 20 percent for a lumbar spine disability is denied.   REMANDED Entitlement to a total disability rating based on individual unemployability as a result of service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a June 2017 statement and before the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his increased rating claims for bilateral metatarsalgia, bilateral hammertoes, right foot hallux valgus, and dermatitis and his service connection claims for a right hand disorder, a lung disorder, and for psychosis for the purpose of establishing eligibility to treatment. 2. A June 2012 rating decision denied the Veteran’s claim of entitlement to service connection for a cervical spine disorder; the Veteran filed a notice of disagreement in July 2012 but later withdrew his claim in September 2013, and evidence obtained since the June 2012 rating decision does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for a cervical spine disorder. 3. The Veteran’s depressive disorder was caused by his active service and service connected disabilities. 4. Even considering his complaints of pain and functional loss, the forward flexion in the Veteran’s lumbar spine is not shown to be functionally limited to 30 degrees or less; ankylosis of the lumbar spine is not shown; and incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks but less than 6 weeks during any 12-month period are not shown. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the increased rating claim for bilateral metatarsalgia have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for withdrawal of the increased rating claim for bilateral hammertoes have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the increased rating claim for right foot hallux valgus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 4. The criteria for withdrawal of the increased rating claim for dermatitis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 5. The criteria for withdrawal of the service connection claim for a right hand disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 6. The criteria for withdrawal of the service connection claim for a lung disorder have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2018). 7. The criteria for withdrawal of the service connection claim for psychosis for the purpose of establishing eligibility to treatment have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 8. The June 2012 rating decision which denied entitlement to service connection for a cervical spine disorder is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011). 9. New and material evidence has not been submitted, and the Veteran’s service connection claim for a cervical spine disorder is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 10. The criteria for service connection for a depressive disorder have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310. 11. The criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from February 1972 to February 1974. Withdraw Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. Id. In the present case, in a June 2017 statement, the Veteran expressly withdrew his appeal with regard to the issues of entitlement to increased ratings for bilateral metatarsalgia, bilateral hammertoes, right foot hallux valgus, and dermatitis and the issues of entitlement to service connection for a right hand disorder, a lung disorder, and psychosis for the purpose of establishing eligibility to treatment prior to promulgation of an appellate decision; hence, there remain no allegations of errors of fact or law for appellate consideration with respect to these specific matters. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are therefore dismissed. Reopening 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. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. In May 2011, the Veteran filed a service connection claim for a cervical spine disorder, which was denied by a June 2012 rating decision. While the Veteran appealed the rating decision in July 2012, he later withdrew his claim in September 2013. In addition, he did not submit any new and material evidence pertaining to this issue within a year of that rating decision, meaning that the rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. At the time of the June 2012 rating decision, the claims file contained no evidence showing his cervical spine disorder was due to or caused by his active service. In a statement received in September 2013, the Veteran sought to have his previously denied claim for a cervical spine disorder reopened asserting that his cervical spine disorder was due to his active service. The medical evidence dated after June 2012 consists of additional VA and private treatment records. However, the new medical records do not show a nexus between his current cervical spine disorder and his active service. As described above, additional evidence has been submitted since the Veteran’s claim was previously denied; however, this evidence is not new in that it was already known at the time of the previous denial that the Veteran had a diagnosis of a cervical spine disorder, and the evidence is not material in that it does not suggest a nexus between his cervical spine disorder and his active service. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless and as described the evidence that has been added since the September 2007 rating decision clearly does not reach that threshold with regard to any of the issue on appeal. See Shade, 24 Vet. App. 110, 118. Essentially, even if the Board reopened the claims, no duty to assist would be triggered. Accordingly, the request to reopen the previously denied claim of service connection for a cervical spine disorder is denied. Service Connection In order to establish entitlement to service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease of injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In September 2013, the Veteran filed his service connection claim for depressive disorder. The Veteran’s STRs show that he was involved in a motor vehicle accident during his active service in April 1973. He has been granted service connection for a lumbar spine disability, bilateral metatarsalgia, bilateral hammertoes, right foot hallux valgus, and dermatitis. In May 2014, the Veteran was afforded a VA examination and was diagnosed with depressive disorder. In September 2015, Dr. Edwin J. Grasmann reviewed the Veteran’s claims file and opined that the Veteran’s depression was at least as likely as not related to his chronic pain from his service connected disabilities. In March 2018, Dr. Chester E. Sigafood reviewed the Veteran’s claims file and opined that the Veteran’s depression was more likely than not due to the motor vehicle accident during his active service. After weighing all the evidence, the Board finds that the evidence is at least in equipoise that the Veteran’s depressive disorder is due to his active service and service connected disabilities. As such, the criteria for service connection for depressive disorder have been met and the Veteran’s claim is granted. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran filed his increased rating claim in September 2013. A June 2014 rating decision granted an increased rating of 20 percent effective September 27, 2013. The Veteran disagrees with the assigned rating and asserts he is entitled to a higher rating. Lumbar spine 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 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, Diagnostic Code 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 appear to show that the Veteran has experienced any IVDS in his lumbar spine during any period on appeal. May 2014 and February 2018 VA examiners reported that the Veteran did not have IVSD. In addition, there is no evidence showing that the Veteran has been specifically prescribed bed rest to treat his lumbar spine disability. Because the prescription of bed rest 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, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran’s lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine for the periods on appeal. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the lumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the lumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding 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 lumbar spine is 30 degrees or less or there is favorable ankylosis of the entire lumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire lumbar 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. Normal ranges of motion of the lumbar 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. The Veteran’s treatment records show that he has received treatment for his lumbar spine disability. However, his treatment records do not describe the results of any range of motion testing. Likewise, there is no finding of any spinal ankylosis. In May 2014, the Veteran was afforded a VA examination. He reported daily mild back pain, but denied having any flare-ups. On examination, he demonstrated forward flexion to 50 degrees, extension to 20 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 25 degrees, all with pain. Repetitive use testing resulted in limited flexion to 45 degrees and left and right lateral rotation to 20 degrees. The examiner indicated that the Veteran had function loss of the lumbar spine that included less movement than normal, incoordination, pain on movement, and interference with sitting, standing, and/or weight bearing. The Veteran retained normal 5/5 strength with no muscle atrophy. He retained normal reflexes and sensation. He did not have radicular pain or any other signs or symptoms due to radiculopathy. The examiner indicated that the Veteran did not have ankylosis of the spine. In February 2018, the Veteran was afforded a VA examination. He denied having any flare-ups but was unable to lift. On examination, he demonstrated forward flexion to 60 degrees, extension to 20 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees. The examiner noted pain with flexion and extension, but the pain did not result in functional loss. The examiner indicated that the Veteran had mild localized tenderness or pain on palpation. The examiner indicated that the Veteran had pain with weight bearing. Repetitive use testing did not result in any additional limitation of motion. The examiner indicated that repetitive use testing resulted in function loss that included pain and lack of endurance. The examiner indicated that the Veteran had evidence of pain with weight bearing. The Veteran retained normal 5/5 strength with no muscle atrophy. He retained normal reflexes and sensation. He did not have radicular pain or any other signs or symptoms due to radiculopathy. The examiner indicated that the Veteran did not have ankylosis of the spine. After a complete review of the medical record, the Veteran does not demonstrate limitation of motion consistent with a 40 percent rating. At the May 2014 and February 2018 VA examinations, he demonstrated in excess of 30 degrees, even considering pain. The medical record does not demonstrate findings consistent with a higher 40 percent evaluation as he has not demonstrate forward flexion limited to 30 degrees or less. In addition, both VA examiners indicated that the Veteran did not have ankylosis of the spine. As such, a rating in excess of 20 percent is not warranted. The Board has considered whether higher disability evaluations are warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, 8 Vet. App. 202. 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, 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. Here, the Veteran clearly experienced some pain on range of motion testing. However, even if flexion 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, 25 Vet. App. 32, 36-38. 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. at 43; see 38 C.F.R. § 4.40. In this case, repetitive testing at the May 2014 resulted in and addition 5 degrees of limitation of motion of flexion and left and right lateral rotation; however, pain was not shown to be so limiting as to functionally limit the range of motion to a degree that would support a higher rating. His rating is largely the result of the application of such functional limitations, as his demonstrated range of motion equivalent to a 20 percent rating in recognition of the functional limitations. The Veteran’s medical record does not demonstrate any additional functional limitations. Such fails to support the assignment of a higher rating. Accordingly, a rating in excess of 20 percent for a lumbar spine disability is denied. REASONS FOR REMAND Regarding a TDIU, Drs. Grasmann and Sigafood opined that the Veteran’s service connected disabilities precluded him from substantial gainful employment. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. As such, a remand is warranted in order for the RO to effectuate the grant of service connection for a depressive disorder and then adjudicate the issue of TDIU. The matter is REMANDED for the following action: (Continued on the next page)   Effectuate the grant of service connection for a depressive disorder and then adjudicate the issue of entitlement to a TDIU. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel