Citation Nr: 20021180 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 14-20 410 DATE: March 24, 2020 ORDER An initial rating for a low back disability of 40 percent is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s low back disability has pain and painful motion, with forward flexion of the thoracolumbar spine limited to 30 degrees or less, when accounting for additional loss due to pain and other factors during flare-ups or after repeated use; but no ankylosis, objective associated neurologic abnormality, intervertebral disc syndrome or incapacitating episodes. CONCLUSION OF LAW The criteria for an initial rating for a low back disability of 40 percent, but no higher, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1963 to September 1973, including service in the Republic of Vietnam for which he earned a Combat Action Ribbon. These matters are on appeal from a September 2012 rating decision. In January 2016 and March 2018, the case was remanded for further development. 1. Initial rating for a low back disability in excess of 20 percent The Veteran is assigned a 20 percent rating for his low back disability of lumbar strain with bilateral piriformis syndrome under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237. He seeks a higher rating based on his pain and resulting limitations. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating 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 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The identified ratings are to be assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease. Id. Any associated objective neurological abnormalities, including but not limited to bowel or bladder impairment, will be evaluated separately under an appropriate diagnostic code. Id. at Note 1. If there is intervertebral disc syndrome (IVDS), the spinal disability will be rated under either the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). The method that results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 should be used. See 38 C.F.R. § 4.71a, DCs 5237 & 5243, General Rating Formula & Note (1), IVDS Formula & Notes (1) & (2). 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, may not be reflected on range-of-motion testing. In addition, 38 C.F.R. § 4.45 requires consideration of 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); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Thus, a higher rating may be assigned if there is additional limitation of motion or functional impairment from pain or other factors during flare-ups or upon repeated use of the joint. Id. Considering these background factors as to the nature of disability, a rating for the musculoskeletal system should be assigned based on the extent to which motion is limited under 38 C.F.R. § 4.71a. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Resolving reasonable doubt in the Veteran’s favor, he is entitled to a rating of 40 percent for his low back disability. He has made competent and credible reports of observable symptoms and that there was functional loss due to pain and other factors during flare-ups or after repeated use over time. When considering these factors, the weight of the evidence shows that the degree of additional limitation would result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less. However, there is no ankylosis. Specifically, during a May 2012 VA examination, the Veteran reported chronic diffuse bilateral lumbar pain that increased with bending, walking, and lying flat on his back. He had been sleeping in a chair for the last 10 years, and he was able to walk with a cane. Range of motion testing showed forward flexion of the thoracolumbar spine to 90 degrees or greater, with objective evidence of pain at 30 degrees. Extension to was to 20 degrees, with objective evidence of pain at 10 degrees. Lateral flexion was to 15 degrees, with objective evidence of pain at 10 degrees, bilaterally. Rotation was to 20 degrees, with objective evidence of pain at 15 degrees. There was no additional loss of motion on repetitive testing. The Veteran's functional loss consisted of less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. The Veteran had tenderness to palpation of the lower lumbar spine and guarding or muscle spasm that was severe enough to result in an abnormal gait. The examiner stated that the Veteran’s back condition alone would prevent him from engaging in prolonged standing, walking, or manual labor. A January 2013 VA treatment record noted that the Veteran had chronic back pain. His trunk or thoracolumbar spine range of motion was noted to be limited in all phases due to stiffness, and he had pain with flexion, extension, side bending, and rotation. This is generally consistent with the 2012 examination results. Subsequent VA treatment records through October 2019 reflect continued low back pain. During a July 2016 VA examination, the Veteran reported that his back pain had worsened and changed in character in the last several years, and his pain averaged a level 8 out of 10. His pain increased with cold and damp weather. He continued to sleep in a power chair and now could not walk more than 10 to 15 feet with a walker. This examiner was unable to test the Veteran’s range of motion of the lumbar spine due his being chair bound, but there was objective evidence of lumbar spasm and pain in the sitting position. The examiner also could not test weight-bearing capabilities because the Veteran was unable to walk during the examination, but the examiner noted that, practically, there should be pain with weight-bearing. The examiner stated that pain, weakness, and lack of endurance would significantly limit the Veteran's functional ability with repeated use over time. He could not describe the additional loss in terms of range of motion because the Veteran was chair bound. The examiner further explained that the Veteran’s medical history and comorbidities supported this opinion. As the examiner provided a rationale for why an estimate in terms of degrees could not be provided, the rationale is sufficient. There is also no argument of examination inadequacy. Records obtained from the Social Security Administration (SSA) were related to the Veteran’s claims for SSA benefits in December 2010 and earlier, and records obtained from private providers were dated through July 2011. As these records were before the August 31, 2011, effective date of service connection, they are less relevant as to the nature and severity of his disability during the appeal period. However, they generally reflect back pain and his other significant conditions. As summarized above, throughout the appeal period, the lay and medical evidence establish that the Veteran has had low back pain that increased during flare-ups or after repeated use over time. The last time his range of motion could be tested, which was in 2012, he had pain beginning at 30 degrees of forward flexion, and the examiner noted that he would have additional limitation due to pain and other factors. The 2016 examiner further noted that there would be additional limitation due to pain and other factors with repeated use over time or flare-ups. Therefore, resolving reasonable doubt in the Veteran’s favor, he had limitation to 30 degrees or less during these episodes of increased symptoms throughout the appeal period. This warrants the higher rating of 40 percent under the General Rating Formula. The evidence does not reflect any associated neurologic abnormality, to include in the lower extremities or bowel or bladder impairment, for the low back disability. The Veteran has consistently denied bowel or bladder impairment. Although the 2012 and 2016 examiners noted that the Veteran had pain radiating to the buttocks and posterior thighs bilaterally, it was in a non-radicular and non-dermatomal pattern. Radiating pain is contemplated by the assigned rating under the General Rating Formula, and both examiners stated that there was no radiculopathy. The 2012 examiner noted that the Veteran used a cane constantly to walk due to his back pain and lower extremity edema, and that he had other contributing issues including massive dependent edema that was unrelated to his back condition, deep vein thrombosis, and being massively obese. Testing showed normal strength, reflexes, and sensation in the lower extremities. Similarly, a January 2013 VA treatment record noted that the Veteran used a cane, was unable to walk more than 20 to 30 feet without assistance, and had problems standing for long periods. The provider noted that his medical history included chronic low back pain, leg edema and recurrent thromboembolisms, and knee arthritis. The 2016 examiner noted that the Veteran reported worsening pain and numbness in his toes, and that he used a cane, could not walk more than 10 to 15 feet with a walker, and constantly used a scooter for ambulation. Testing showed decreased muscle strength, sensation, and reflexes in the lower extremities, and the examiner noted peripheral neuropathy. However, this examiner again stated that the Veteran had multiple co-morbidities, including significant peripheral vascular disease and significant swelling in his legs and severe knee pathology. This is consistent with his treatment records and with the Veteran’s 100-percent rating for his separate disability of deep vein thrombosis with venous insufficiency in the lower extremities. Thus, the Veteran’s impairment in the lower extremities is not due to his low back disability, and a separate rating is not warranted based on associated neurologic impairment. Id. at Note (2). A higher warranting is also not warranted under the IVDS Formula. The 2012 and 2016 examiners stated that there was no IVDS and no incapacitating episodes due to the Veteran’s low back disability. Although there is a diagnosis of lumbar spine degenerative disc disease, there is no argument or suggestion of incapacitating episodes for at least 6 weeks in any 12-month period, as required for a higher rating of 60 percent on this basis. See 38 C.F.R. § 4.71a, IVDS Formula and Note. In a December 2017 appellate brief, the Veteran’s representative asserted that if an increased rating is not awarded then the case should be referred for consideration of an extraschedular rating. Entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) requires a three step-inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008); Yancy v. McDonald, 27 Vet. App. 484 (2016). First, the evidence must present such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Second, if the schedular rating does not contemplate the Veteran’s level of disability and symptomatology and is found inadequate, then the disability picture must exhibit other related factors such as marked interference with employment and frequent periods of hospitalization. If these first two elements have both been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. See Thun, 22 Vet. App. at 116. The Veteran’s representative reasoned that the July 2016 VA examiner could not give an actual range of motion for the Veteran’s low back disability because he was chair-bound and essentially housebound due to limitation of mobility. However, the 2016 examiner noted significant co-morbidities as summarized above, and the evidence reflects that the Veteran uses a wheelchair primarily due to his service-connected deep vein thrombosis in the bilateral lower extremities. See, e.g., May 2012 and September 2012 VA examinations. That condition has been rated as 100 percent disabling, effective since August 31, 2011, which is the full period of the Veteran’s appeal for his low back disability. He has also already been awarded special monthly compensation (SMC) at the statutory housebound rate under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i). Therefore, the Veteran’s low back disability severity and symptomatology does not present an exceptional disability picture, and consideration of an extraschedular rating or SMC is not warranted. In summary, the manifestations of the Veteran’s low back disability were relatively consistent throughout the appeal period. Reasonable doubt has been resolved in his favor to award a 40 percent rating, and the appeal is granted to this extent. Any increases in severity were not sufficient to more nearly approximate the criteria for the next higher rating or a separate rating, and the appeal is otherwise denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran contends that his hypertension is directly due to service, to include Agent Orange exposure in Vietnam, or is secondary to diabetes mellitus. The Board denied service connection for diabetes mellitus based on no current diagnosis in a January 2016 decision. However, other theories remain pending. The Board previously remanded this issue in 2016 and 2018 to obtain the Veteran’s records from the Social Security Administration (SSA), any identified treatment records dated since 2014, and a VA examination. The SSA records and additional VA records through October 2019 were obtained, but the Veteran did not identify further private records. A VA examination and opinion was provided in July 2016. Another remand is necessary to obtain an addendum medical opinion as to the etiology of the Veteran’s hypertension with consideration of additional evidence. As directed in the prior remand, the July 2016 examination gave an opinion and considered a study by the National Academy of Sciences (NAS) that placed hypertension in the category of “limited or suggestive evidence” of an association to exposure to herbicide agents (including Agent Orange) during service in Vietnam. However, the Board takes judicial notice of the more recent medical publication Veterans and Agent Orange: Update 11 (2018), published by the National Academy of Science (NAS), which upgrades the previous NAS classification of hypertension from the category of “limited or suggestive” evidence of an association to herbicide agent exposure to the category of “sufficient” evidence of an association. The NAS explains that “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide agent exposure. Although there is no direct relationship between this report and this Veteran’s claim, the Board may sua sponte take this information into account in deciding appeals. See Euzebio v. Wilkie, 31 Vet. App. 394, 401, 404 n.8 (2019). An addendum opinion is necessary to consider this additional evidence. Additionally, the July 2016 VA examiner stated that risk factors for the Veteran’s hypertension included his obesity and sedentary lifestyle. The Veteran is service-connected for deep vein thrombosis of the bilateral lower extremities with a 100 percent rating, effective since August 31, 2011. A September 2012 VA examination noted that the Veteran has a history of bilateral lower extremity edema due to chronic deep vein thromboses (DVTs) complicated by venous insufficiency, lymphedema or elephantitis of the bilateral lower extremities, and severe venous stasis complicated by recurrent cellulitis. He used a wheelchair or scooter constantly at that time due to these conditions. The Veteran also has pain and limitations due to his service-connected low back disability. In a May 2012 VA examination, he reported using a cane constantly due to his back pain and edema. This evidence raises the theory of whether obesity constitutes an intermediate step for secondary service connection under 38 C.F.R. § 3.310. See VAOPGCPREC 1-2017 (Jan. 6, 2017). The Court recently clarified that secondary service connection may be granted with obesity as an intermediate step where the claimed disability would not have occurred but for obesity that was either caused or aggravated by a service-connected disability. Walsh v. Wilkie, No. 18-0495, ___ Vet. App. ___ (Feb. 24, 2020). An addendum opinion is needed to address this theory. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician regarding the etiology of the Veteran’s hypertension. For each of the questions, the examiner is asked to explain the reasons behind any opinions and conclusions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. (a) Is the Veteran’s hypertension at least as likely as not related to his presumed exposure to herbicide agents during service in Vietnam? Along with other relevant evidence, the examiner should comment on the National Academy of Science (NAS) Veterans and Agent Orange: Update 11 (2018), which upgrades hypertension from the category of “limited or suggestive” evidence of an association with herbicide agent exposure the category of “sufficient” evidence. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service, including exposure to herbicides. Likewise, the mere fact that a presumption has not been established for any particular disorder at issue is not dispositive of the issue of nexus. Consideration must still be given to the exposure. (b) Is it at least as likely as not that (i) the Veteran’s service-connected deep vein thrombosis in the lower extremities or low back disability caused him to become obese or aggravated his obesity; (ii) such obesity or aggravation of obesity was a substantial factor in causing the Veteran’s hypertension; and (iii) the current hypertension would not have occurred but for the obesity being caused or aggravated by the service-connected disabilities? Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.