Citation Nr: 20009903 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 16-22 681 DATE: February 6, 2020 ORDER Entitlement to service connection for depression, not otherwise specified (NOS) (claimed as generalized anxiety/panic disorder with agoraphobia associated with lumbar myofascitis), is dismissed. Entitlement to a rating in excess of 20 percent for service-connected lumbar myofascitis (back disability) is denied. REMANDED Entitlement to service connection for bilateral carpal tunnel syndrome is remanded. Entitlement to a compensable rating for tarsal coalition, hallux valgus, right foot (right foot disability) is remanded. Entitlement to a compensable rating for tarsal coalition, hallux valgus, left foot (left foot disability) is remanded. FINDINGS OF FACT 1. At a June 2019 Board of Veterans’ Appeals (Board) hearing, the Veteran clearly and unequivocally expressed his desire to withdraw his claim for entitlement to service connection for depression, NOS. 2. The Veteran’s back disability is manifest by painful, limited motion with flexion greater than 30 degrees. CONCLUSIONS OF LAW 1. The criteria for dismissal of the appeal as to entitlement to service connection for depression, NOS, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for a rating in excess of 20 percent for service-connected back disability have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1999 to December 2006 to include service in Southwest Asia. The matter comes before the Board on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified before the undersigned Veterans Law Judge via videoconference. A transcript of the hearing was prepared and added to the record. The Veteran has waived RO review of evidence added to the file since the RO’s last adjudication. Withdrawn Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In this case, at the June 2019 hearing with the undersigned the Veteran withdrew his appeal as to the issues of entitlement to service connection for depression, NOS. The withdrawal request was discussed prior to the hearing and was acknowledged on the record. The withdrawal request was explicit, unambiguous, and done with a full understanding of the consequences. As there remain no allegations of errors of fact or law for appellate consideration regarding the issue of entitlement to service connection for depression, NOS, the Board does not have jurisdiction over this issues and it is dismissed. Rating for Back Disability Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal 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. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is 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 assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12-month period. In this case, incapacitating episodes of the requisite duration to support a higher disability rating are not shown. This appeal stems from a March 2012 claim for an increased rating. During the appeal period the Veteran underwent VA examination in November 2016. Range of motion testing was performed and showed, at worst, forward flexion to 60 degrees. The examination was performed after repetitive use over time and the Veteran denied flare-ups of the condition. Hence, the Board finds the examination findings are demonstrative of the level of impairment associated with the back disability. Treatment records do not show greater limitation of motion than the examination findings. Notably, in a May 2019 psychotherapy session, the Veteran reported having to do much exercise at his job since he is up on his feet quite a while. Given the above, a higher rating is not warranted based on limitation of motion. Ankylosis of the spine is not shown by the medical evidence or alleged by the Veteran. The VA examiner specifically found that ankylosis was not present. Regarding relevant neurological findings, the VA examiner noted no neurological abnormalities as a result of the back disability. There is no other evidence in significant conflict with these findings. Therefore, the Board finds there are no other symptoms which should be addressed by a separately-assigned disability rating. For the above reasons, the preponderance of the evidence is against the claim, and the Veteran’s claim for increased rating is denied. REASONS FOR REMAND The Board regrets additional delay but finds that further development is required to fully satisfy the duty to assist the Veteran. 1. Bilateral carpal tunnel syndrome The Veteran asserts that his carpal tunnel syndrome and weakness in his hands were caused by his active duty service. Specifically, he believes these conditions resulted from repetitive tasks with his hands such as putting fuses on rounds and working a computer. The Veteran was diagnosed with bilateral carpal tunnel syndrome by VA in November 2008. An opinion has not been obtained regarding whether the Veteran’s carpal tunnel syndrome is related to his duties during service and should be obtained on remand. 2. Right and left foot disability The Veteran asserts that his service-connected right and left foot disability have worsened since his last examination and should warrant compensable ratings. Notably, at the June 2019 hearing, the Veteran testified to sometimes having such severe pain that he cannot stand up and he has to crawl. Given that the last examination the Veteran received was in 2012, and the Veteran has asserted development of more severe symptoms, a new VA examination is necessary to determine the current symptoms, severity, and functional impact of the Veteran’s service-connected bilateral foot disabilities. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to these claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current bilateral carpal tunnel syndrome onset during service or is otherwise related to an in-service injury, event, or disease, to include his assertion that his military occupational specialty of being a cannon crew member required him to perform repetitive motion for putting fuses on the rounds and of having to perform repetitive motion on computers on heavy artillery pieces at awkward angles. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. 3. Schedule the Veteran for a VA feet examination to determine the current symptoms, level of severity, and functional impairment associated with his right and left foot disabilities. The claims file should be reviewed by the examiner. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. J. Kim, 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.