Citation Nr: 18160893 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 12-08 406 DATE: December 28, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the thoracolumbar spine with intervertebral disc syndrome (IVDS) is denied. REMANDED Entitlement to service connection for an acquired mental disorder is remanded. Entitlement to a rating in excess of 30 percent for Meniere’s disease is remanded. Entitlement to a total disability rating based upon individual unemployability due to service connected disabilities is remanded. FINDINGS OF FACT 1. The thoracic spine disability is manifested primarily by tenderness and pain on motion. Remaining functional flexion is better than 60 degrees and the combined range of motion is better than 120 degrees. There is no abnormal contour. 2. The Veteran has not had incapacitating episodes characterized by doctor-prescribed bed rest. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for degenerative arthritis of the thoracolumbar spine with IVDS are not met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Codes 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty for training from August 1974 to January 1975, and on active duty from July 1977 to July 1981, and June 1985 to January 1997. Increased Rating Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Staged ratings are appropriate if the factual findings show distinct time periods in which the service-connected disability exhibited symptoms warranting different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). Here, the disability has not significantly changed and a uniform evaluation is warranted. In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. See 38 C.F.R. § 4.45. When assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, and a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology, is possible. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Although pain may cause functional loss, pain itself does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), 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 (38 C.F.R. § 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. In rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The prohibition of “pyramiding” pursuant to 38 C.F.R. § 4.14 does not preclude consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Diagnostic Code (DC) 5010 (traumatic arthritis) directs that arthritis be rated under DC 5003 (degenerative arthritis), which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major or minor joint groups will warrant a 10 percent rating, and two or more major or minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The 10 percent and 20 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. See 38 C.F.R. § 4.71a, DC 5003, Note 1. 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that an evaluation of 10 percent 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. See 38 C.F.R. § 4.71a, DC 5243. For the purposes of evaluations under DC 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). Separate ratings for neurological manifestations may be warranted under 38 C.F.R. § 4.124a if supported by objective medical evidence. It is the Board’s responsibility to evaluate the assembled evidence. See 38 U.S.C. § 7104(a). All information and lay and medical evidence of record in a case will be considered. It is VA’s defined and consistently applied policy to administer the law under a broad interpretation that is consistent with the facts shown in every case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to a Rating in excess of 10 Percent for Degenerative Arthritis of the Thoracolumbar Spine with Intervertebral Disc Syndrome (IVDS) The Veteran contends that he is entitled to a rating in excess of 10 percent for this back disability. The Veteran has been assigned a 10 percent disability rating for degenerative arthritis of the spine with IVDS. From October 2017, the Veteran’s disability is rated under DC 5243, which relates to IVDS. Prior to October 2017, the Veteran’s back disability was rated under DC 5242. Based on the competent and relevant evidence of record, the Board will consider the Veteran’s disability under the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating IVDS to determine if there is a basis to increase the assigned rating. The current evaluation contemplates pain on motion. It is also consistent with limitation of flexion to 61 degrees or a combined range of motion better than 120 degrees. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of flexion to 60 degrees or less or a combined range of motion not greater than 120 degrees. In addition, the Board must consider whether there is abnormal contour or prescribed bed rest. The Veteran was assigned an initial 10 percent disability rating for his back disability, effective July 29, 2009. In April 2010 correspondence, the Veteran contended that the 10 percent assignment did not adequately contemplate the severity of his condition. He stated that he suffered from chronic pain, tenderness and limited motion. The Veteran underwent a VA examination in December 2010. He reported intermittent episodes 3-4 times weekly of low back pain and stiffness, lasting minutes to hours. He reported no flare-ups and no additional functional loss. He was independent in his activities of daily living and performed chores, repairs and maintenance chores. He stated that the symptoms of his service-connected disabilities did not cause him to miss days at work. Upon examination, the spine was non-tender to palpation with no focal redness, warmth, or swelling. There was some mild stiffness and discomfort with lumbar range of motion testing. Lumbar flexion was to 90 degrees without pain, and extension to 30 degrees without pain. Rotation and lateral lean to the right and left were to 30 degrees without pain. The examiner observed the Veteran dressing and undressing himself without trouble, as well as getting on to the examination table without difficulty. The examiner also noted that the Veteran drove 70 miles to the appointment and that he had a normal gait. The Veteran reported no back pain in October 2011 VA treatment records. On his April 2012 VA Form-9, the Veteran stated that his back disability warranted a higher disability rating because he had limited motion, pain and fatigue. The Veteran denied back pain in July 2012, but reported pain in November 2012. See July and November 2012 treatment records. The Veteran underwent an additional VA examination in May 2014. He reported that his back pain increased around 2012, and stated that he experienced daily, intermittent, non-radiating, sharp, stabbing discomfort in his low back. He stated oral pain medications had been fairly effective and that he had not had physical therapy or any other changes in care. He did not report flare-ups. Range of motion testing revealed forward flexion to 90 degrees or better, with evidence of painful motion at 70 degrees. Extension revealed 30 degrees without evidence of painful motion. Right lateral flexion was 30 degrees with no evidence of painful motion, and 30 degrees left lateral flexion, with painful motion beginning at 25 degrees. Right and left lateral rotation was to 30 degrees, without evidence of painful motion. The Veteran was able to perform repetitive use testing with three repetitions and no additional loss of motion. He reported that his spine was tender to palpation T8-S1. The Veteran did not have an altered gait, and there was no evidence of muscle spasms or guarding. The examiner determined that the Veteran did not have radiculopathy, and did not have IVDS. The examiner determined that the Veteran would be better suited to employment that required less physical activity. April 2016 VA diagnostic testing revealed chronic degenerative changes from normal wear and tear or from arthritis. The Veteran attended another VA examination in November 2017. The Veteran stated that around June 2017 he began to experience radiating pain, he also reported experiencing flare-ups. Range of motion testing revealed forward flexion to 90 degrees, extension was to 20 degrees, right and left lateral flexion was to 30 degrees, right and left lateral rotation was to 30 degrees. Pain was evident in forward flexion, extension and left lateral flexion, but did not result in additional functional loss. The Veteran was able to perform repetitive use testing with three repetitions and no additional loss of motion. It was determined that pain, weakness, fatiguability or incoordination significantly limited functional ability with repeated use over time. The examiner reported that repeated use over time or flare-ups would cause forward flexion to 80, extension to 10 degrees, right and left lateral flexion to 20 degrees, right and left lateral rotation to 20 degrees. Moderate right leg radiculopathy and mild left leg radiculopathy were reported. IVDS was reported but there were no periods of required bed rest in the prior 12 months. A November 2017 X-ray revealed minor degenerative changes of the lumbosacral spine. November 2017 VA treatment records reflect that the Veteran reported that other than leg pain he was feeling great. The weight of evidence is against assigning an initial rating in excess of 10 percent at any time during the period of the appeal. The Veteran’s thoracolumbar disability is manifested by not less than 80 degrees of forward flexion and a combined range of motion not less than 170 degrees, even during periods of flare-ups or repetitive use. The Veteran is limited in standing, walking, climbing and driving endurance but does not use supportive devices. A higher evaluation of 20 percent is not warranted unless there is forward flexion of the thoracolumbar spine greater than 30 degrees but not less than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is presentation of muscle spasm or guarding that is severe enough to result in an abnormal gait or abnormal spinal contour such as with scoliosis, reversed lordosis, or abnormal kyphosis, which objective evidence fails to show. The Board notes that the Veteran is currently service-connected for bilateral right and left leg radiculopathy, rated as 20 and 10 percent disabling respectively. With respect to the provisions of 38 C.F.R. §§ 4.40, 4.45 and DeLuca consideration, the Veteran’s range of motion during repetitive motion testing and flare-ups has been considered, but did not reflect range of motion testing results consistent with the 20 percent rating criteria. There is also no evidence of ankylosis. The Board has not overlooked the statements by the Veteran with regard to the severity of his disability. The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing pain; and the Board finds that the Veteran’s reports have been credible. See Jandreau, supra; Washington, supra. The Board has considered the Veteran’s reports along with the medical evidence of record. Here, the most probative evidence consists of the VA examinations prepared by competent providers. No additional rating issues were raised by the Veteran or by the record. The Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). As the preponderance of the evidence is against this claim, the “benefit of the doubt” rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to Service Connection for an Acquired Mental Disorder 2. Entitlement to a Rating in excess of 30 Percent for Meniere's Disease The Veteran contends that he is entitled to service connection for an acquired mental disorder, as well as an increased rating for his service-connected Meniere’s disease. In March 2015, the Board remanded these issues for further development, to include VA examinations. The Veteran was scheduled for a VA examination in July 2018 and he failed to appear. The record does not contain copies of the notices to the Veteran. In November 2018 correspondence, the Veteran reported that he was not notified of the scheduled examinations and requested a new appointment. As the record does not show that notices were sent to the correct address, the Board finds that there was good cause for failing to appear. He also stated that his Meniere’s disease had increased in severity. Accordingly, a remand is warranted in order to schedule the Veteran for VA examinations. 3. Entitlement to a Total Disability Rating Based upon Individual Unemployability (TDIU) due to Service Connected Disabilities The Veteran also contends that he is entitled to a TDIU rating. Because a decision on the remanded increased rating issue could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand is required. The matters are REMANDED for the following action: 1. Reschedule the Veteran for a mental health examination to assess the nature and etiology of any diagnosable psychological disorders. The claims file must be made available and be reviewed by the examiner in conjunction with the examination. The examiner is asked to determine: (a.) Any diagnosable psychological disorders. In rendering the requested diagnoses, the examiner should address and reconcile his or her diagnoses with the December 2009 VA examination report, the September 2012 mental health note, and June 2014 VA examination report. (b.) whether it is at least as likely as not (i.e. a 50 percent probability or more) that any diagnosed psychological disorder had its onset during or is otherwise related to active duty. In rendering the request opinion, the examiner should address the February 1977 report of medical history indicating that the Veteran reported depression or excessive worry. (c.) whether it is at least as likely as not (i.e. a 50 percent probability or more) that any diagnosed psychological disorder was caused or aggravated (permanently worsened. beyond the natural progression of the disease) by his service-connected disabilities. 2. The Veteran should be provided the appropriate examination to ascertain the current level of severity of his service-connected Meniere’s disease. The examination report should include a detailed account of all manifestations of the disorder found to be present to include the present level of hearing loss, and the frequency of the Veteran’s attacks of vertigo and nausea. The claims folder should be made available and reviewed by the examiner in conjunction with the examination. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel