Citation Nr: 18112166 Decision Date: 06/18/18 Archive Date: 06/18/18 DOCKET NO. 10-32 864 DATE: June 18, 2018 ORDER Entitlement to an evaluation in excess of 40 percent since September 18, 2012 for lumbar spine degenerative joint disease (DJD) and degenerative disc disease (DDD) with Diffuse Idiopathic Skeletal Hyperostosis Syndrome is denied. Entitlement to an evaluation in excess of 20 percent since September 18, 2012, for degenerative arthritis of the cervical spine is denied. REMANDED Entitlement to service connection for bladder impairment claimed as due to lumbar spine disability, to include entitlement to a separate compensable rating is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. From September 18, 2012, the Veteran’s service-connected lumbar spine disability had not been manifested by ankylosis or incapacitating episodes. 2. From September 18, 2012, the Veteran’s service-connected cervical spine disability had not been manifested by forward flexion of the cervical spine 15 degrees or less; favorable ankylosis of the entire cervical spine, or intervertebral disc syndrome (IVDS). CONCLUSIONS OF LAW 1. From September 18, 2012, the criteria for a rating in excess of 40 percent for lumbar spine disability had not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242. 2. From September 18, 2012, the criteria for a rating in excess of 20 percent for cervical spine disability had not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the Air Force from March 1958 to June 1962 and from March 1963 to November 1978. The Veteran died in January 2017; the appellant, the Veteran’s surviving spouse, has been substituted as the claimant. While undergoing remand development, separate compensable ratings were assigned for radiculopathy of the lower extremities. There was no disagreement with that action and those issues are no longer before the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. When, as here, the Veteran requested a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Entitlement to an evaluation in excess of 40 percent since September 18, 2012 for lumbar spine degenerative joint disease (DJD) and degenerative disc disease (DDD) with Diffuse Idiopathic Skeletal Hyperostosis Syndrome The Veteran’s service-connected lumbar spine disability has been rated as 40 percent disabling, since September 18, 2012, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. The rating criteria for diseases and injuries of the spine are contained in 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (for, respectively, vertebral fracture or dislocation; sacroiliac injury and weakness; lumbosacral or cervical strain; spinal stenosis; spondylolisthesis or segmental instability; ankylosing spondylitis; spinal fusion; degenerative arthritis of the spine; and intervertebral disc syndrome). In pertinent part, 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, the following apply: Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. 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. Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IDVS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25. Formula for Rating IVDS Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent rating is warranted. With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. Note(1): For purposes of evaluations under diagnostic code 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. Note(2): If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. As noted above, service connection has been established for the Veteran’s radiculopathy of bilateral lower extremities. The appellant has not to date expressed disagreement with the effective date or the evaluation assigned to the either extremity radiculopathy. As such, the Board will not address the severity of the right or left lower extremity radiculopathy. The Veteran underwent VA examination in November 2016. At that time, the Veteran demonstrated flexion to 20 degrees, extension to 15 degrees, right and left lateral flexion and right and left lateral rotation to 10 degrees. There was no evidence of pain with weightbearing. There was no additional loss of function or range of motion after three repetitions. The examiner was unable to describe functional loss due to pain and weakness or during flare-ups in terms of range of motion. There was muscle spasm during range of motion, localized tenderness, and guarding but not resulting in abnormal gait or abnormal spinal contour. There was left muscle atrophy, no ankylosis, and no bladder or bowel problems. The Veteran denied incapacitating episodes. The examiner noted that there had been a progression of the Veteran’s symptoms. There had been no periods of incapacitation. The evidence does not include any reports of ankylosis of the lumbar spine, and the Veteran has not reported any periods when his lumbar spine was fixed in position. As such, the Board finds that at no time after September 18, 2012, did the Veteran’s service-connected lumbar spine disability meet the criteria for a 50 percent disability rating or higher pursuant to Diagnostic Code 5242 during the appeal period. The Board has also considered the rating criteria pursuant to Diagnostic Code 5243 for IVDS, and finds that the Veteran was not entitled to a rating in excess of those already assigned based upon incapacitating exacerbations. The evidence does not show that the Veteran had incapacitating episodes, including doctor-prescribed bed rest to warrant a higher rating under the rating criteria for IVDS during the appeal period. Entitlement to an evaluation in excess of 20 percent since September 18, 2012, for degenerative arthritis of the cervical spine. The veteran’s service-connected cervical spine disability has been rated as 20 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. In pertinent part, 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, the following apply: Forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 warrants a 20 percent rating. Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine warrants a 30 percent rating. Unfavorable ankylosis of the entire cervical spine warrants a 40 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. 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 (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. Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 20 percent rating is warranted. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent rating is warranted. The Veteran underwent VA examination in November 2016. At that time, the Veteran demonstrated flexion to 20 degrees, extension to 15 degrees, right lateral flexion to 30 degrees, left lateral flexion to 25 degrees, right lateral rotation to 50 degrees, and left lateral rotation to 40 degrees. There was no evidence of pain with weightbearing. There was no additional loss of function or range of motion after three repetitions. The examiner was unable to describe functional loss due to pain or during flare-ups in terms of range of motion. There was no muscle spasm or guarding, but localized tenderness was demonstrated but not resulting in abnormal gait or abnormal spinal contour. There was no muscle atrophy and no ankylosis. The examiner noted that the Veteran did not have IVDS of the cervical spine. In addition, muscle strength testing, reflex examination, and sensory examination of the upper extremities were normal. There were no signs or symptoms of upper extremity radiculopathy and there were no other neurologic abnormalities or findings related to the Veteran’s cervical spine disability. The examiner noted that there was a progression in the Veteran’s symptoms. In this case, the record indicates that at no time after September 18, 2012, had there been competent evidence of forward flexion of the cervical spine 15 degrees or less. Further, there have been no periods of incapacitation or associated objective neurologic abnormalities. The evidence does not include any reports of ankylosis of the cervical spine, and the Veteran has not reported any periods when his cervical spine was fixed in position. Moreover, even considering the Veteran’s pain causing functional loss, the Board finds that the Veteran’s cervical spine had not been manifested by forward flexion of the cervical spine 15 degrees or less at any time after September 18, 2012; and, as such, does not meet the criteria for a rating higher than 20 percent under Diagnostic Code 5242. 38 C.F.R. §§ 4.71a. A higher rating for limitation of motion is not warranted under the schedular criteria. REASONS FOR REMAND Entitlement to service connection for bladder impairment claimed as due to lumbar spine disability, to include entitlement to a separate compensable rating, is remanded. VA treatment records indicate that in August 2009, the Veteran noted that he was treated exclusively in the private community by Dr. Modarelli for urinary pathology. Thus, the Veteran identified relevant outstanding private treatment records. A remand is required to allow VA to obtain authorization and request these records. The Board cannot make a fully-informed decision on this issue because the VA examiner who provided the opinion in November 2016 that it was less likely than not that the Veteran’s bladder condition was proximately due to or the result of a service-connected disability. The examiner stated that there was no medical evidence to support that he was being evaluated for bladder dysfunction by VA and that there were other reasons that cause voiding dysfunction other than the lumbar spine condition. The examiner noted that the Veteran was evaluated by Neurology but that there was no mention of a urinary condition. Although the record is absent an evaluation for bladder dysfunction, the record indicates many complaints regarding bladder problems. Thus, it is the Board’s opinion that an addendum opinion be obtained after Dr. Modarelli’s records have been associated with the file. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issue of entitlement to service connection or a separate compensable rating for a bladder disability could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claims for entitlement to a TDIU is required. The matters are REMANDED for the following action: 1. Ask the appellant to complete a VA Form 21-4142 for Dr. Modarelli. Make two requests for the authorized records from Dr. Modarelli, unless it is clear after the first request that a second request would be futile. All attempts to obtain records should documented in the claims folder. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bladder disorder is at least as likely as not proximately due to   service-connected disability/aggravated beyond its natural progression by service-connected disability. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Olson, Counsel