Citation Nr: 1809002 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 08-08 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to higher initial ratings for degenerative joint and disc disease lumbar spine, currently rated as 40 percent disabling effective May 4, 2007 and rated as 20 percent disabling effective May 17, 2012. 2. Entitlement to increased ratings for Raynaud's syndrome, currently rated as 20 percent disabling prior to June 14, 2017 and rated as 40 percent disabling effective June 14, 2017. REPRESENTATION Appellant represented by: Sean A. Ravin, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to December 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2013 and July 2016 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). Notices of disagreement were received in November 2013 and October 2016; statements of the case were issued in September 2015 and May 2017; and substantive appeals were received in October 2015 and July 2017. The Veteran presented testimony at a Board hearing in February 2009, in conjunction with his claim for service connection for a lumbar spine disability. A transcript of the hearing is associated with the Veteran's claims folder (Hearing Testimony, 4/24/09). The claim was granted by the Board by way of a May 2016 decision and granted by the RO by way of a July 2016 rating decision. In May 2016, the Board also remanded the issue of entitlement to a higher rating for Raynaud's syndrome. In its July 2016 rating decision, the RO granted a 40 percent rating for the Veteran's lumbar spine disability effective May 4, 2007 (the date of receipt of the claim). It assigned a 20 percent rating effective October 15, 2009 (the date of a VA examination). In May 2017, it issued another rating decision in which it found clear and unmistakable evidence in the prior decision. It corrected the effective date of the 20 percent rating. The new effective date is May 17, 2012 (the date of another VA examination). The issue of entitlement to increased ratings for Raynaud's syndrome is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Prior to May 17, 2012, the weight of the evidence is against a finding that the Veteran's degenerative joint and disc disease of the lumbar spine was manifested by unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least six weeks during the past 12 months. 2. Effective May 17, 2012, the weight of the evidence is against a finding that the Veteran's degenerative joint and disc disease of the lumbar spine was manifested by forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. CONCLUSIONS OF LAW 1. Prior to May 17, 2012, the criteria for entitlement to a disability evaluation in excess of 40 percent for the Veteran's service-connected degenerative joint and disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including § 4.7 and Codes 5235 to 5243 (2017). 2. Effective May 17, 2012, the criteria for entitlement to a disability evaluation in excess of 20 percent for the Veteran's service-connected degenerative joint and disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including § 4.7 and Codes 5235 to 5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In a May 2007 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2017). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2017). VA has done everything reasonably possible to assist the Veteran with respect to the claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2017). Relevant service treatment and other medical records have been associated with the claims file. The Veteran was given VA examinations in October 2009, May 2012, and April 2015, which are fully adequate. The examiners reviewed the claims file in conjunction with the examinations; and they addressed all relevant rating criteria. The duties to notify and to assist have been met. Increased Ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet.App. 119 (1999). The current General Rating Formula for Diseases and Injuries holds that for diagnostic codes 5235 to 5243 (unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episode) a 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 5235 Vertebral fracture or dislocation 5236 Sacroiliac injury and weakness 5237 Lumbosacral or cervical strain 5238 Spinal stenosis 5239 Spondylolisthesis or segmental instability 5240 Ankylosing spondylitis 5241 Spinal fusion 5242 Degenerative arthritis of the spine (see also diagnostic code 5003) 5243 Intervertebral disc syndrome Additionally, Diagnostic Code 5243 provides that a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week, but less than two weeks during the past 12 months. An incapacitating episode is defined as 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. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet.App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Prior to May 17, 2012 The Veteran underwent a chiropractic consult in December 2007 (Medical Treatment Record - Government Facility, 2/19/08, pgs. 1-5). He reported that for over thirty years, he has insidiously developed worsening non-descript lower back pain localized to the left lumbosacral junction. He stated that the pain increased when sitting or bending. He also had pain with prolonged standing or walking. He also reported occasional "sharp" pain in his left anterior thigh with infrequent passage below his knee to the lateral lower leg. He stated that the pain is worse in the morning. Upon examination, the Veteran had a normal and steady gait with no assistive devices. There was tenderness with palpation of the left posterior superior iliac spine (PSIS) and L4-S1 facets. There was tenderness over the left greater trochanter. There was point tenderness over the left PSIS. The Veteran achieved 60 degrees of flexion and 30 degrees of extension. Patrick testing produced local lower back pain. Sensory and muscle strength testing were normal. A March 2009 correspondence from Dr. F.S.G. reflects that he examined the Veteran earlier that month (Medical Treatment Record - Non-Government Facility, 4/16/09). The Veteran reported intermittent pain in his low back and over the years, which had worsened. An examination revealed restricted lumbar range of motion particularly with extension, causing increased pain across his lower back, and radiating into his thighs, particularly the right. Dr. F.S.G. noted that a June 2007 MRI revealed multi-levels discopathies and facet hypertrophy. He also noted paralumbar spasm with palpable tenderness at T12-L1, L3-4, L4-5 and S1. The Veteran underwent a VA examination in October 2009. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported constant pain that he rated 5/10 in intensity. He also reported occasional radiation of the pain to both knees and both shoulders. He reported flare-ups of the pain, precipitated by bending forward, standing more than 15 minutes, or lifting more than 10 pounds. These occurred on a daily basis, and usually lasted an average of two hours. He walked without any aids. He stated that he had a belt for lumbar spine support. He claimed to be able to walk up to quarter of a mile, at which time he notes the pain to be worsening. He reported some unsteadiness; but no history of falls. He did not require any assistance with activities of daily living. He claimed to have missed approximately 60 days of work in the last 12 months. Upon examination, the Veteran moved hesitantly. He claimed to be having pains in his back whenever he tries to ambulate tandem toe-to-heel. He claimed to be unable to do it. The examiner noted spasm in the lumbar musculature. There were no spinal deformities. Range of motion was performed with marked apprehension. He achieved forward flexion from 0-20 degrees; extension from 0-10 degrees; left and right lateral flexion and left and right lateral rotation from 0-10 degrees. Deep tendon reflexes were 1+ and equal bilaterally. His pulses were normal in both lower extremities. The examiner noted that repetitive motion resulted in pain that further decreased range of motion to 0-15 degrees of forward flexion. No other limitation of motion was found on the basis of fatigability, incoordination, weakness, and or lack of endurance. There were no findings of unfavorable ankylosis. An April 2012 neurological evaluation (performed due to complaints of facial numbness), noted that the Veteran had "occasional muscle and joint pains, particularly in his lower back and down his right leg." (Medical Treatment Record - Non-Government Facility, 11/15/13, p. 19). Analysis Prior to May 17, 2012, the Veteran's lumbar spine disability is rated as 40 percent disabling. In order to warrant a rating in excess of 40 percent, the Veteran's disability would have to be manifested by unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least six weeks during the past 12 months The Board notes that neither the VA examination, the outpatient treatment reports, nor the correspondence from Dr. F.S.G. suggests that the Veteran's disability was manifested by unfavorable ankylosis of the entire thoracolumbar spine. The Board acknowledges the Veteran's contention that he missed 60 days of work in the past 12 months. However, an incapacitating episode is defined as 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. The outpatient treatment reports fail to reflect at least six weeks of bedrest prescribed by a physician. In the absence of unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks during the past 12 months, the Board finds that the preponderance of the evidence weighs against the claim for a rating in excess of 40 percent. Effective May 17, 2012 The Veteran underwent a VA examination in May 2012. The examiner reviewed the claims file in conjunction with the examination. The Veteran stated that his pain was intermittent; and he rated it as 4-10/10. He also reported intermittent radiation to the popliteal area. He reported flare-ups that can be spontaneous or can be triggered by bending or lifting in excess of 10 pounds. Upon examination, the Veteran achieved forward flexion to 50 degrees (with objective evidence of pain at 50 degrees); extension to 10 degrees (with objective evidence of pain at 10 degrees); right and left lateral flexion to 20 degrees (with objective evidence of pain at 20 degrees); and right and left rotation to 30 degrees or greater (with objective evidence of pain at 30 degrees or greater). The Veteran was able to perform repetitive use testing; and there was no additional limitation of motion following such testing. However, the examiner then stated that in terms of additional functional loss after repetitive use, the Veteran had less movement than normal and pain on movement. He did not have weakened movement, excess fatigability, incoordination impaired ability to execute skilled movements smoothly, swelling, deformity, atrophy of disuse, instability of station, disturbance of locomotion, or interference with sitting, standing, and/or weight bearing The Veteran had pain over the left sacroiliac joint. He also had guarding and/or muscle spasm; but it did not result in abnormal gait or spinal contour. Muscle strength testing was normal. Deep tendon reflexes in the knees and ankles were hypoactive (+1). Sensory examination was normal. Straight leg raising was negative bilaterally. Regarding radiculopathy, he had mild intermittent pain in the lower extremities. He had incapacitating episodes of less than one week over the past 12 months. He reported that he occasionally used a cane. The examiner found no other pertinent physical findings, conditions, signs, or symptoms. Functional impact was that the Veteran was restricted from bending and lifting in excess of 10 pounds. The Veteran underwent another VA examination in April 2015. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported intermittent pain and stiffness. He denied radiculopathy. He denied bowel or bladder incontinence. The examiner noted that the Veteran was last seen by his chiropractor in December 2014 and that there was no radiation of pain. The Veteran reported flare-ups consisting of daily intermittent pain with prolonged standing and sitting. The flare-ups last a few hours. The Veteran reported functional impairment in the form of pain with motion and limitation of motion. Upon examination, the Veteran achieved forward flexion to from 0 to 50 degrees; extension from 0 to 10 degrees; right and left lateral flexion from 0 to 10 degrees; and right and left rotation from 0 to 10 degrees or greater. The Veteran exhibited pain in all types of motion. There was also objective evidence of tenderness to deep palpation at the lumbar paravertebral muscles. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. Additionally, there was no additional limitation to functional ability do to pain, weakness, fatigability or incoordination with repeated use over a period of time. The examiner opined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with flare-ups. There was no guarding or muscle spasm of the thoracolumbar spine. Other factors contributing to the Veteran's disability were less movement than normal due to ankylosis, adhesions, etc., interference with sitting, and interference with standing. Muscle strength testing was normal. Reflex examination reflected normal deep tendon reflexes. Sensory examination was normal. Straight leg raising test was negative bilaterally. There was no evidence of radicular pain or other signs/symptoms due to radiculopathy. There was no ankylosis of the spine. The examiner found no neurologic abnormalities or intervertebral disc syndrome. The Veteran did not use any assistive devices as a normal mode of locomotion. Outpatient treatment records since the most recent examination are consistent with the examination reports. The Veteran has reported pain (typically rated 5-6 in severity), with flare-ups to 8-10 (CAPRI, 6/16/17). Analysis Effective May 17, 2012, the Veteran's lumbar spine disability is rated as 20 percent disabling. In order to warrant a rating in excess of 20 percent, the Veteran's disability would have to be manifested by forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. The Board notes that at both the May 2012 and April 2015 VA examinations, the Veteran achieved forward flexion in excess of 30 degrees. Specifically, he achieved forward flexion to 50 degrees. Moreover, at the May 2012 VA examination, objective evidence of pain was not noted until 50 degrees of forward flexion (indicating that the Veteran achieved more than 30 degrees of pain free flexion). Additionally, unlike in his October 2009 VA examination, in which the Veteran reported constant pain, at his May 2012 and April 2015 VA examinations, he reported intermittent pain. Neither the VA examinations nor the outpatient treatment reports reflect forward flexion limited to 30 degrees or less; or incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. In a November 2017 correspondence, the Veteran's representative argues that the nature and severity of the Veteran's 40-year old back disability "can't possibly be contemplated solely upon the few pithy ranges of motion findings." He suggests that other factors must be considered in determining functionality (including pain and flare-ups). As noted above, the Veteran reported that his pain (during this period of time) has been intermittent. Though the Veteran experienced pain with range of motion testing, there was no evidence of pain until he achieved 50 degrees of forward flexion. Moreover, the April 2015 VA examiner opined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with flare-ups. In addition to range of motion findings, the Board has considered muscle strength testing, sensory examination findings, radiculopathy, etc. However, these have been normal since May 2012. The VA examiners have noted that the Veteran's functional limitations were painful motion and limitation of motion (factors that have been discussed). Simply put, there is no medical evidence to show that there is any additional loss of motion of the lumbar spine due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 20 percent. The Veteran's representative also argued that "(i)t is an injustice to find that his back disability, after over 40 years of continuous symptoms, could improve significantly based upon the results of one single examination." The Board initially notes that the assignment of a 20 percent rating does not represent a rating reduction subject to the provisions of 38 C.F.R. § 3.105(e) and 38 C.F.R. § 3.344. Rather, it is part of an initial or staged rating. Moreover, while the Veteran has stated that he has a 40-year history of back pain, he is only service connected for the disability since May 2007. There is no indication that the Veteran's reported back pain has been severe for 40 years. To the contrary, at his December 2007 chiropractic consultation, the Veteran reported worsening low back pain (thereby indicating that it was not always as severe as it was in December 2007). The Board also notes that the current findings are not based on a single examination. To the contrary, findings consistent with a 20 percent rating are found in both the May 2012 and April 2015 VA examinations, as well as the December 2007 Chiropractic Consult (in which the Veteran achieved 60 degrees of forward flexion). Instead, it is a single examination (the October 2009 VA examination) that reflects findings consistent with the 40 percent rating criteria. The Board findings are based on the Veteran's current level of functioning, reflected in the VA examinations and in outpatient treatment records. The findings are not intended to compensate the Veteran's 40 years of reported pain, most of which has not been service connected. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for initial or staged ratings in excess of 40 percent prior to May 17, 2012; and in excess of 20 percent effective May 17, 2012 for degenerative joint and disc disease lumbar spine must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Entitlement to increased ratings for the Veteran's degenerative joint and disc disease lumbar spine is denied. REMAND The Veteran's most recent VA examination for Raynaud's syndrome occurred in June 2017. In a November 2017 correspondence, the Veteran's representative argued that the examination report does not accurately reflect the Veteran's symptoms (which are typically more severe in the winter). He requested that the claim be remanded for a VA examination that takes place in the winter. Given the Veteran's contention that the most recent VA examination is likely not reflective of the full severity of his disability, the Board finds that a new VA examination is warranted. Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the Veteran for a VA examination for the purpose of determining the current severity of his Raynaud's syndrome. The examination must take place in winter. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any special tests deemed medically advisable should be conducted. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. 2. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claim remains denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs