Citation Nr: 20003576 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 17-21 635 DATE: January 15, 2020 ORDER A higher initial rating for radiculopathy of the left lower extremity (radiculopathy), having been withdrawn, is dismissed. Service connection for muscle damage, having been withdrawn, is dismissed. For the entire initial rating period on appeal from June 10, 2016, a disability rating for the service-connected degenerative arthritis of the spine (back disability) in excess of 20 percent is denied. REMANDED Service connection for an acquired mental disorder is remanded. FINDINGS OF FACT 1. At a November 2019 Board of Veterans’ Appeals (Board) hearing, the Veteran withdrew the appeal for a higher initial rating for radiculopathy. 2. At a November 2019 Board hearing, the Veteran withdrew the appeal for service connection for muscle damage. 3. For the entire initial rating period on appeal from June 10, 2016, the back disability results in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for a higher initial rating for radiculopathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of the appeal for service connection for muscle damage have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. For the entire initial rating period on appeal from June 10, 2016, the criteria for a higher initial disability rating in excess of 20 percent for the back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5238, 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1978 to January 1981. The instant case is an appeal from an October 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appealed the initial rating for a back disorder and for radiculopathy and denial of claims for service connection for an acquired mental disorder and for muscle damage. The Veteran testified at a November 2019 Board hearing. The transcript has been associated with the record. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2018). The Board finds that the duties to notify and assist have been met. The initial rating for a spine disability is a “downstream” element of service connection and no further notice is required or triggered by a notice of disagreement to the initial rating. See Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007) (holding there is no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate VCAA notification is not required for “downstream” issues following a service connection grant, such as initial rating and effective date claims). The service connection claim for an acquired mental disorder is being remanded and the two remaining claims have been withdrawn; accordingly, the Board does not need to further explain how the duties to notify and assist have been met. 1. Withdrawal of Appeal for Initial Rating for Left Lower Extremity Radiculopathy 2. Withdrawal of Appeal for Service Connection for Muscle Damage Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing or on record at a hearing at any time before the Board promulgates a decision. Withdrawal may be made by a veteran or by his or her authorized representative. 38 C.F.R. § 20.204. At a November 2019 Board hearing, the Veteran’s representative stated that the Veteran wished to withdraw the issues of service connection for muscle damage and a higher initial rating for radiculopathy. As this withdrawal occurred prior to the promulgation of a Board decision, the issues were properly withdrawn. Accordingly, there remain no allegations of fact or law for appellate consideration as to these issues. The Board does not have jurisdiction to review the appeal further as to these issues, which will be dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. Disability Rating Legal Criteria 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. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14. prohibits compensating a veteran twice for the same symptoms or functional impairment). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved and contemplates staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). For disabilities of the musculoskeletal system, the Board also considers whether a higher disability rating is 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 DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 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. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45. 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 affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular 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 non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. 3. Rating the Back Disability The Veteran is in receipt of a 20 percent disability rating for the back disorder under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula. 38 C.F.R. § 4.71a, including for specifically diagnosed degenerative arthritis of the spine and lumbosacral strain. The Veteran contends entitlement to a higher disability rating. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) for Diagnostic Codes 5235 to 5243, unless 5243 is rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula). Ratings under the General Rating Formula are made 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 General Rating Formula provides a 20 percent rating 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 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. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar 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 lumbar 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) provides that, 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) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar 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. After a review of all the evidence, lay and medical, the Board contends that a disability rating in excess of 20 percent disability for the service-connected back disabilities is not warranted. The Veteran participated in an initial VA examination in October 2016, where the diagnosis was degenerative arthritis of the spine. There was decreased range of motion during the VA examination. Forward flexion was to 60 degrees (normal is 90 degrees), extension was to 10 degrees (normal is 20 degrees), right lateral flexion was to 10 degrees (normal is 30 degrees), left lateral flexion is to 10 degrees (normal is 30 degrees), right lateral rotation is to 20 degrees (normal is 30 degrees), and left lateral rotation is to 20 degrees (normal is 30 degrees). The combined range of motion was 130 degrees. The VA examiner could not speak to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with decreased use over time. However, there were no problems with repetitive use testing. The VA examiner noted functional loss because the limited range of motion impacts ambulation and activities requiring use of the back. The VA examiner pointed to difficulty with range of motion (impacting bending and twisting as examples), with weight-bearing (standing and walking as examples), and with sitting. There was pain on all testing measures. At the November 2019 Board hearing, the Veteran stated that the back problem has required significant treatment. A September 2016 addendum to a primary care note stated that the Veteran took gabapentin, lidocaine, meloxicam, and oxycodone/acetaminophen for pain (some on an as-needed basis). The Veteran also stated that he has flare-ups where he cannot get out of bed for four days approximately once per month. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (noting the importance of an examiner discussing a flare-up in the context of functional loss). While recognizing that the Veteran has flare-ups at times and needs pain medication, the disability rating that reflects the Veteran’s level of functional impairment is a 20 percent rating. The restricted range of forward flexion to 60 degrees is within the 20 percent rating criteria of greater than 30 degrees but not greater than 60 degrees. The next higher rating of 40 percent requires forward flexion of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. The Veteran does not experience favorable ankylosis. The total range of motion of 130 falls within the 10 percent disability rating; however, where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In this case, reasonable doubt resolves the rating for the back disability in favor of a 20 percent rating based on forward flexion, flare-ups, and painful motion, rather than 10 percent based on total combined range of motion measurements. Accordingly, for the entire initial rating period on appeal from June 10, 2016, the criteria for a higher initial disability rating in excess of 20 percent for the back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5238, 5242, 5243. REASONS FOR REMAND 2. Service Connection for an Acquired Mental Disorder At the November 2019 Board hearing, the Veteran testified to the origins of his acquired mental disorder concern. The Veteran stated that he fell off the rack while asleep and was knocked unconscious. He stated that he sustained a significant facial injury that required stitches. He stated that he did not get any neurological treatment at the time, but that his behavior changed significantly and he had other symptoms like headaches, dizziness and vertigo, sleep issues, and difficulty thinking. The Board notes that there are two separate incidents in the service treatment records that pertain to falling off the rack—August 2, 1979 and November 21, 1978. The Board notes that there has been no VA examination with respect to the claim for an acquired mental disorder, which could be either psychiatric (including as secondary to the back disability) or a traumatic brain injury. The Veteran also reports a history of mental health treatment with an outside provider, and those records are not associated with the claims file. The matters are REMANDED for the following action: 1. Obtain a release from the Veteran and the contact information for his private mental health providers and request the records. 2. Schedule a Traumatic Brain Injury VA examination and a Mental Disorders examination. The VA examiner should consider the Veteran’s corroborated report of injuries sustained after falling off the rack. 3. After a thorough examination, the VA examiner should give the following opinions: (a.) Does the Veteran have a traumatic brain injury diagnosis? (b.) If the Veteran has a traumatic brain injury diagnosis, is it as least as likely as not (50 percent or higher probability) caused by an in-service injury of falling off the rack? (c.) Does the Veteran have a psychiatric diagnosis? Please discussed suggested diagnoses in the record that include adjustment disorder with depressed mood and PTSD. (d.) If the Veteran has a psychiatric diagnosis, is it as least as likely as not (50 percent or higher probability) caused by an in-service injury of falling off the rack? (e.) If the Veteran has a current psychiatric diagnosis, is it caused by the service-connected back disability? (f.) If the Veteran has a psychiatric diagnosis, is it aggravated by (worsened in severity) the service-connected back disability? (Continued on the next page)   4. Once the record has been developed and the opinions have been obtained, readjudicate the claim for service connection for an acquired mental disorder. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.