Citation Nr: 20021300 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 13-07 390 DATE: March 25, 2020 ORDER An increased initial rating of 40 percent, but no higher, is granted for the Veteran’s service-connected back arthritis during the entire appeal period, subject to the laws and regulations governing monetary awards. From January 9, 2012, a total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. An increased initial rating higher than 10 percent is denied for the Veteran’s service-connected left lower extremity radiculopathy. An increased initial rating higher than 10 percent is denied for the Veteran’s service-connected right lower extremity radiculopathy. REMANDED Service connection for a cardiac disability is remanded. Service connection for colonic polyps is remanded. An increased initial rating for the Veteran’s service-connected acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected back arthritis is not shown to cause unfavorable ankylosis of the entire thoracolumbar spine. 2. After service, the Veteran worked as a printer and in the fish department at a supermarket. He has not worked since December 2009. On his November 2012 TDIU application, the Veteran stated that his service-connected back disability prevented him from working. He also noted that he was a high school graduate and did not have additional occupational training. A TDIU rating is supported by the January 2013, October 2016, and January 2020 VA examination reports, which note that the functional limitations associated with the Veteran’s service-connected back disability would preclude him from maintaining any substantially gainful employment, aside from positions requiring almost no physical exertion. For example, the October 2016 VA examiner stated that the Veteran is unable to stand, sit, or drive for longer than 30 minutes; walk more than 15 minutes; or bend, stoop, or lift, due to his back arthritis. The Regional Office (RO) denied the Veteran’s claim because the Social Security Administration considers the Veteran disabled due to nonservice-connected disabilities; however, the Board of Veterans’ Appeals (Board) finds that the preponderance of the evidence, including the cited VA examination reports and VA treatment records, also shows that the Veteran would also be precluded from maintaining substantially gainful employment commensurate with his education and experience due to his service-connected back disability alone. As to whether TDIU is warranted prior to January 9, 2012 (the date when service connection was granted for the Veteran’s back disability), the Veteran clearly stated in the November 2012 TDIU application that he was unable to work due to his back. The additional evidence, including the January 2013 VA mental health examination report and VA treatment records, also does not support a finding that the Veteran is unable to obtain or maintain substantially gainful employment due to service-connected connected disabilities other than his back arthritis. Accordingly, the Board finds that TDIU is not warranted prior to January 9, 2012. 3. The Veteran’s left lower extremity radiculopathy is manifested by no more than mild incomplete paralysis. 4. The Veteran’s right lower extremity radiculopathy is manifested by no more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria have been met for an increased initial rating of 40 percent, but no higher, for the Veteran’s back arthritis during the entire appeal period. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. 2. From January 9, 2012, the criteria have been met for a TDIU rating on a schedular basis. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. 3. The criteria have not been met for an increased initial rating higher than 10 percent for left lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.120, 4.123, 4.124, 4.124a, DC 8520. 4. The criteria have not been met for an increased initial rating higher than 10 percent for right lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.120, 4.123, 4.124, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from October 1968 to October 1971. These matters are before the Board on appeal from December 2011 and September 2012 rating decisions. In July 2015 and December 2018, the Board remanded these matters for additional development. In April 2017, the RO granted a 20 percent disability rating for the Veteran’s service-connected back arthritis, effective October 31, 2016. The same rating decision also assigned 10 percent disability ratings for left and right lower extremity radiculopathy. Because these grants do not represent a total grant of benefits sought on appeal, the claim for increased rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). A TDIU claim is part of an increased rating claim when such claim is asserted by the veteran or raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, TDIU has been added to this appeal. Increased Rating Disability ratings are based on average impairment in earning capacity resulting from a particular disability and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The RO had assigned staged ratings for the Veteran’s back disability, as described above. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. Back Disability Legal Criteria The Veteran’s service-connected back disability has been evaluated under DC 5243, 38 C.F.R. § 4.71a, which is rated under General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, a 40 percent rating is warranted for flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Unfavorable ankylosis for VA compensation purposes means that the entire thoracolumbar spine or the entire spine is fixed in flexion or extension. See id., Note (5). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4. 40, 4.45, 4.59. The rating schedule also includes criteria for evaluating intervertebral disc disease (IVDS). A 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted for IVDS with incapacitating episodes having a total duration of least 4 weeks but less than 6 weeks during the past 12 months. Finally, a rating of 60 percent is warranted for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. The criteria direct that IVDS be evaluated either on the total duration of incapacitating episodes over the past 12 months or under either the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher evaluation. An incapacitating episode is defined by regulation as “a period of acute signs and symptoms due to IVDS requiring bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, DC 5243. Under this provision, if a claimant remains in bed without a physician prescribing bed rest, the regulatory criteria are not met. Id. Facts and Analysis During the October 2016 VA examination, the Veteran’s forward flexion was 60 degrees. This finding is the basis for the Veteran’s current 20 percent disability rating under DC 5243. However, the Veteran has consistently reported, and examiners have consistently noted, additional functional limitation apart from pain and range of motion limitations. His back disability affects standing, sitting, driving, and lifting. Accordingly, under the provisions of DeLuca and Mitchell, he is entitled to an increased rating of 40 percent. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Deluca, 8 Vet. App. at 207-07 (1995). Because the Veteran has consistently reported severe back pain and associated functional limitations, the Board resolves reasonable doubt in the Veteran’s favor and finds that he is entitled to an increased rating of 40 percent during the entire appeal period. A rating higher than 40 percent under DC 5243 requires unfavorable ankylosis of the entire thoracolumbar spine which the Veteran has not reported and the medical evidence, including the October 2016 and January 2020 VA spine examination reports, does not show. Accordingly, the Board finds that a disability rating higher than 40 percent under DC 5243 is not warranted. The Board also notes that the examination reports do not all make clear notations of range of motion testing for active versus passive motion or range of motion loss during flare-ups (when the Veteran reported flare-ups). See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp, 29 Vet. App. at 26. However, remanding the issue for further examination would not result in a higher evaluation because there is no ankylosis, which is required for a higher rating. Because the Board finds that no benefit would flow to the Veteran with an additional examination, a remand is not required here. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, are to be avoided). The Board has considered whether the Veteran would be entitled to a higher rating under a different diagnostic code. However, the diagnostic codes specific to the spine use the same rating criteria, except for IVDS, which can also be rated based on incapacitating episodes. To receive a rating higher than 40 percent for IVDS, the evidence must show incapacitating episodes of six weeks or long duration during a 12-month period. A review of the medical evidence does not indicate any IVDS episodes. Furthermore, the Veteran did not report that he has had any periods of physician-ordered bedrest. Accordingly, because the Veteran has not reported, and the record does not show any physician-prescribed episodes of bed rest lasting at least six weeks in a 12-month period, the Board finds that an increased rating higher than 40 percent is not warranted under the DC for IVDS. 1. Left and Right Lower Extremity Radiculopathy Legal Criteria The Veteran is seeking a higher rating for his left and right lower extremity radiculopathy, currently each rated at 10 percent disabling under DC 8520. Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy; and a maximum 80 percent rating is warranted for complete paralysis. See 38 C.F.R. § 4.124a, DC 8520. The Board notes that words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA all evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. VA examiners and other’s use of the terms “mild,” “moderate,” and “severe” is evidence to be considered by the Board; it is not dispositive of the issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the ratings should be for mild, or at most, the moderate degree. See Note, Diseases of the Peripheral Nerves, 38 C.F.R. § 4.124(a). The U.S. Court of Appeals for Veterans Claims (Court) has explained that this Note “provides only a maximum disability rating for wholly sensory manifestations of incomplete paralysis of a peripheral nerve” and does not require a certain minimum disability rating where there are also non-sensory manifestations. Miller v. Shulkin, 28 Vet. App. 376, 380 (2017). Neurological conditions are ordinarily rated in proportion to the impairment of motor, sensory or mental function, with consideration especially of psychotic manifestations, complete or partial loss of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, injury to the skull, etc. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Facts and Analysis On remand, the RO granted separate 10 percent ratings for the Veteran’s left and right lower extremity (leg) radiculopathy, effective the date of the October 2016 VA examination. After a careful review of the record, the Board finds that a higher rating of 20 percent is not warranted because the October 2016 examination report details a largely normal lower extremity examination, including normal sensation, muscle strength, and reflexes. Straight leg testing was negative (normal). Therefore, the 10 percent rating was based on the Veteran’s report of mild intermittent pain and mild paresthesias/dysesthesias. During the January 2020 VA examination, Veteran denied symptoms of radiculopathy. Reflexes, strength, and sensation were again normal. Straight leg testing was again negative. There was no lower extremity muscle atrophy. Overall, the Board finds that this evidence warrants 10 percent ratings for mild left and right lower extremity radiculopathy because the Veteran reported lower extremity radiculopathy symptoms intermittently and the examination findings, including strength, sensation, and reflexes have been normal. Accordingly, a rating higher than 10 percent is denied for both the Veteran’s left and right lower extremity radiculopathy disabilities. REASONS FOR REMAND 1. Service connection for colonic polyps is remanded. This issue is remanded to obtain an additional secondary service connection opinion pursuant to Stegall v. West, 11 Vet. App. 268 (1998) and also to obtain additional opinions on aggravation in light of the Court’s recent clarification that “aggravation” in the context of secondary service connection claims means any increase in symptoms beyond normal progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019) (Any incremental increase in disability or additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions regardless of its permanence constitutes aggravation.). 2. Service connection for a heart disability is remanded. An addendum medical opinion is required because the December 2019 VA examination report does not address the possible relationship between the Veteran’s in-service dizziness and his current cardiac disabilities, as the Board had requested in the December 2018 remand directives. See Stegall, supra. 3. An increased initial rating for an acquired psychiatric disorder is remanded. This issue is remanded to afford the Veteran a contemporaneous VA mental health examination in light of the Board’s December 2018 decision granting service connection for PTSD and the April 2019 rating decision rating the Veteran’s service-connected mental health disabilities as one disability, termed an acquired psychiatric disorder. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Obtain all updated records of VA treatment (from September 2019 to present). 3. Send the Veteran a letter asking him to identify all treatment providers for the issues on appeal, and to authorize VA to obtain any additional available records for association with the claims file. 4. The Board recognizes that the detailed questions below involved require significant work on the part of the medical examiners and the RO. The Board regrets the need to remand the matter yet again to the RO, however, the Board may not legally adjudicate the Veteran’s case until it has the requested information. Therefore, the Board must ask the VA examiner and the RO to ensure compliance with these directives (that is, full and thoroughly explained answers to each of the questions) to avoid additional delays in adjudication. 5. Then please forward the claims file to the December 2019 VA examiner or another appropriate VA examiner for an addendum secondary service connection opinion regarding colonic polyps. An addendum opinion is necessary because the Board’s December 2018 remand directive contained an outdated definition of “aggravation,” and because the December 2019 medical opinion did not provide the previously requested opinion regarding whether the Veteran’s service-connected hemorrhoids caused or aggravated his colonic polyps. After reviewing the evidence, the examiner is specifically asked to provide opinions on the following: a) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s colonic polyps were CAUSED by the Veteran’s service-connected hemorrhoids? b) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s polyps were AGGRAVATED by 1) service-connected anxiety, depression, and PTSD; 2) service-connected GERD; or 3) service-connected hemorrhoids? (Aggravation in this context means ANY increase in severity beyond its natural progression.) A detailed explanation (rationale) is required for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.) If an adequate opinion responsive to these directives cannot be provided without another actual examination, the Veteran should be scheduled for this additional evaluation, but this is left to the designee’s discretion. 6. Pleased also arrange for a VA cardiologist to review the file and provide opinions responding to the following. [An additional opinion is needed because the January 2020 VA examiner did not address the Veteran’s in-service episodes of dizziness, as was specifically requested in the Board’s December 2018 remand directive. Moreover, the examiner provided conclusory and generalized explanations for her negative conclusions which are not sufficient for the Board to evaluate the Veteran’s claim.] a) Please identify all current disabilities of the Veteran’s heart and specifically state whether or not the Veteran has ischemic heart disease. The examiner’s attention is directed to treatment records from Gainesville VAMC from February and March 2017 showing mild coronary calcifications and indications of pulmonary hypertension. Please provide a detailed explanation for any conclusion reached regarding ischemic heart disease, including referencing the coronary calcifications finding. b) Is it at least as likely as not (a 50 percent or greater probability) that any diagnosed cardiac disability was incurred in or otherwise related to the Veteran’s active service, to include episodes of dizziness and passing out and exposure to herbicide agents? c) Please identify all diagnosed disabilities considered to be peripheral vascular disease. d) Is it at least as likely as not (a 50 percent or greater probability) that any diagnosed peripheral vascular disability was incurred in or otherwise related to the Veteran’s active service, to include episodes of dizziness and passing out and exposure to herbicide agents? A detailed explanation (rationale) is required for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.) 7. Finally, please also arrange for a mental health evaluation of the Veteran to assess the current severity of his service-connected mental health disabilities, which now include anxiety, depression, and PTSD. The Veteran’s record, including recent VA mental health treatment records, must be reviewed by the examiner in conjunction with the examination. (CONTINUED ON NEXT PAGE) A detailed explanation (rationale) is required for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Robinson, 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.