Citation Nr: 20052983 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 17-06 978 DATE: August 10, 2020 ORDER Prior to November 24, 2016, a 20 percent rating, but not higher, for degenerative disc disease of the lumbar spine is granted. As of November 24, 2016, a rating higher than 20 percent for degenerative disc disease of the lumbar spine is denied. A 10 percent rating, but not more, for pingueculae with blepharitis and dry eye syndrome bilateral eyes is granted. REMANDED Service connection for hematuria and voiding dysfunction (claimed as bladder condition) is remanded. Service connection for menometrorrhagia (also claimed as irregular menstrual disorders) is remanded. FINDINGS OF FACT 1. Throughout the appeals period, the Veteran’s degenerative disc disease of the lumbar spine manifests as pain, stiffness, and limitation of forward flexion to no less than 60 degrees; as of November 24, 2016, mild radiculopathy of the right lower extremity is shown. 2. The Veteran’s pingueculae with blepharitis and dry eye syndrome bilateral eyes manifests as dry, red, itchy eyes, necessitating prescription artificial tears and daily lid hygiene and occasional blurry vision; this is analogous to active chronic conjunctivitis CONCLUSIONS OF LAW 1. Prior to November 24, 2016, the criteria for a 20 percent rating, but not higher, for degenerative disc disease of the lumbar spine were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242. 2. As of November 24, 2016, the criteria for a rating higher than 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242. 3. The criteria for a 10 percent rating, but not more, for pingueculae with blepharitis and dry eye syndrome bilateral eyes have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.20, 4.75-4.79, Diagnostic Code 6018. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1999 to February 2004. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for posttraumatic stress disorder (PTSD); granted an increased rating to 10 percent for degenerative disc disease of the lumbar spine; denied an increased rating for pinguecula with blepharitis and dry eye; and denied service connection for bilateral hearing loss, eczema, menometrorrhagia, narcolepsy, hematuria and voiding dysfunction, and an undiagnosed illness characterized by muscle pain, fatigue, and joint pain. In a March 2014 notice of disagreement (NOD), the Veteran appealed the ratings assigned for degenerative disc disease of the lumbar spine and pinguecula with blepharitis and dry eye and the denials of service connection for menometrorrhagia, narcolepsy, hematuria and voiding dysfunction, and an undiagnosed illness characterized by muscle pain, fatigue, and joint pain. In an August 2016 rating decision, the Veteran was granted service connection for fibromyalgia and evaluated the claimed migraines as part of this disability. In an October 2016 DRO decision, the Veteran was granted service connection for chronic fatigue syndrome and her disability rating for fibromyalgia was increased. The was determined to be a full grant of the benefits sought with regard to the issue of muscle pain, fatigue, joint pain due to undiagnosed Gulf War illness and her claimed symptom of migraines. In her November 2016 letter, the Veteran acknowledged these final decisions. She did not appeal the disability ratings assigned. The RO issued a December 2016 statement of the case on the issues of increased ratings for degenerative disc disease of the lumbar spine and pinguecula with blepharitis and dry eye and the denials of service connection for menometrorrhagia and hematuria and voiding dysfunction. The Veteran then perfected her appeal with a February 2017 VA Form 9, which listed the issues of increased ratings for degenerative disc disease of the lumbar spine and pinguecula with blepharitis and dry eye, the denials of service connection for menometrorrhagia and hematuria and voiding dysfunction, and an appeal of the disability assigned for fibromyalgia to include whether a separate compensable rating for migraines was warranted. As the issue of a separate compensable rating for migraines was not on appeal, it could not be perfected and certified to the Board. This may have been considered a notice of disagreement if received prior to March 24, 2015, however, as of that date a standard form for a NOD, VA Form 21-0958, is required. See 38 C.F.R. § 19.21. Thus, this issue is not before the Board and the Veteran is advised to consult her representative if she wishes to pursue a claim on this matter. In a December 2016 decision review officer (DRO) decision, the Veteran’s rating for degenerative disc disease was increased to 20 percent effective November 24, 2016, and she was awarded a separate 10 percent rating for radiculopathy of the right lower extremity effective November 24, 2016. 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Prior to November 24, 2016, a rating higher than 10 percent for degenerative disc disease of the lumbar spine 2. As of November 24, 2016, a rating higher than 20 percent for degenerative disc disease of the lumbar spine The Veteran was originally service connected for degenerative disc disease L5-S1 in an August 2004 rating decision. At that time, this disability was assigned a noncompensable rating effective February 7, 2004. Her current claim for an increased rating was received February 23, 2012. As noted in the introduction, her disability rating was increased during the pendency of the appeal, resulting in a staged rating with a 20 percent rating effective November 24, 2016. As explained below, the Board finds that the 20 percent rating should apply to the entire appeals period. The Veteran’s degenerative disc disease of the lumbar spine (lumber spine disability) is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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; 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.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is in favor of a 20 percent rating for lumbar spine disability throughout the entire appeals period. In particular, the Board notes the range of motion findings contained in her January 2012 and March 2012 physical therapy records, which both show forward flexion limited to 60 degrees. This is equal to the 60 percent estimated during the later stage for her limitation of flexion after repetitive use and/or during flare-ups. Thus, the Board finds that the 20 percent rating should be granted for the earlier period. Turning to the issue of whether a rating higher than 20 percent is warranted, the Board finds that the preponderance of the evidence is against this. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to constant pain, aching, stiffness, limitation of activities, inability to continue to work as a nurse, inability to bend, inability to lift heavy objects; additional limitation of motion due to pain after repetitive motion, and flare-ups with increased pain and back spasm. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The November 2016 back disability benefits questionnaire (DBQ) estimated that the Veteran’s additional limitation of motion during a flare up or after repeated use over time was equal to 60 degrees of forward flexion. Despite her reports that flare-ups of back symptoms leave her walking hunched over, the record does not show any findings that this disability has resulted in further limitation of motion or ankylosis at any time during the appeals period. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Veteran is currently service connected for the associated neurological abnormality of radiculopathy of the right lower extremity with sciatic nerve involvement. This disability is rated 10 percent under DC 8520, which reflects mild incomplete paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. Here, the Veteran’s symptoms include numbness, paresthesias and/or dysesthesias, and decreased sensation. She had normal reflexes and muscle strength. Although the November 2016 DBQ characterized this as moderate radiculopathy with decreased sensation to the right lower leg and foot, moderate numbness, and moderate paresthesias and/or dysesthesias; these symptoms are wholly sensory. As such, the Board concurs that this degree of impairment is more accurately described as mild radiculopathy. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating/rating in excess of 10 percent for radiculopathy of the right lower extremity. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Earlier records noted intermittent complaints of pain radiating down the Veteran’s left lower extremity, but radiculopathy of the left lower extremity has not been confirmed by diagnostic testing. The May 2014 private neurologic evaluation concluded that chronic neurogenic changes were seen in the bilateral foot muscle, which could be due to bilateral radiculopathy but cold also be seen in normal patients. EMG of bilateral lumbosacral paraspinal and leg muscles was normal. Lumbar magnetic resonance imaging noted complaints of radiculopathy, but found no high-grade stenosis or nerve root impingement. As the Veteran has other medical conditions, such as fibromyalgia, that may also cause left lower extremity pain, this is insufficient to establish radiculopathy of the left lower extremity. The Veteran’s claimed bladder symptoms have not been associated with this disability and, indeed, the September 2012 treatment record specifically notes that the physician did not believe her lumbar spine pathology was related to her bladder problems because she complained of frequently changing intermittent urinary frequency and retention without incontinence. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with her spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for the neurological disability associated with her lumbar spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. A compensable rating for pingueculae with blepharitis and dry eye syndrome bilateral eyes The Veteran was originally service connected for nasal and temporal pingueculae of the bilateral eyes (bilateral eye disability) in an August 2004 rating decision. At that time, this disability was assigned a noncompensable rating effective February 7, 2004. Her current claim for an increased rating was received February 23, 2012. The Veteran’s bilateral eye disability is currently rated under hyphenated diagnostic code (DC) 6099-6018. Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is “built up” with the first two digits being selected from that part of the schedule most closely identifying the part, and the last two digits being “99” for an unlisted condition. Id. DC 6018 provides rating criteria for chronic conjunctivitis. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15,316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Under the former criteria for DC 6018, active conjunctivitis with objective findings such as red, thick conjunctivae, mucous secretion, etc., was rated 10 percent. Inactive conjunctivitis is rated based on residuals such as disfigurement and visual impairment. 38 C.F.R. § 4.79. Under the revised criteria, DC 6018 (active conjunctivitis) is evaluated under the General Rating Formula for Disease of the Eye with a minimum rating of 10 percent. Inactive conjunctivitis is rated based on residuals such as disfigurement and visual impairment. 38 C.F.R. § 4.79. The General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months, a 20 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. Where there are documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months, a 60 percent rating is warranted. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, DCs 6061-6091. Visual impairment for VA rating purposes consists of three components: central visual acuity (DC 6061-6066), visual field (DC 6080-6081), and muscle function (DC 6090-6091). 38 C.F.R. § 4.79. The Veteran has argued that her bilateral eye disability should be rated under DC 6025 for disorders of the lacrimal apparatus (epiphora, dacryocystitis, etc.). To this end, she has submitted earlier non-precedential Board decisions concerning other Veterans, including one wherein blepharitis was rated under DC 6025. As that decision is non-precedential and involves a distinct fact pattern, it is not evidence for this claim. Nevertheless, below, the Board will consider whether the current Veteran’s symptoms warrant rating under DC 6025. Under DC 6025, which did not change during the pendency of the appeal, bilateral disability is rated 20 percent and unilateral disability is rated 10 percent. Here, the Veteran has reported some associated blurry vision, but no loss of visual acuity, visual field, or muscle function has been shown. Similarly, the record does not show any incapacitating episodes attributable to the Veteran’s eye disability. Thus, evaluation based on visual impairment and/or incapacitating episodes under either version of the rating criteria would not result in a compensable rating. See 38 C.F.R. § 4.79. Instead, the Veteran’s bilateral eye disability results in dry, red, itchy eyes, necessitating prescription artificial tears and daily lid hygiene. The March 2013 VA eye examination noted meibomian gland dysfunction, pingueculae, and blepharitis. None of these were visually significant. In October 2014, she had punctal plugs placed in both eyes. The November 2016 DBQ found no disfigurement, but noted pinguecula, telangiectasises of lid margins, and inferior superficial punctate keratitis in both eyes. This examiner described the Veteran’s condition as active, but did not diagnose any disorder of the lacrimal apparatus. Based on the Veteran’s symptoms, her bilateral eye disability is analogous to active chronic conjunctivitis and a 10 percent rating is warranted. See 38 C.F.R. § 4.79, DC 6018. This is the maximum schedular rating for active conjunctivitis or the analogous condition of dry eyes. The Board has also considered whether a higher rating is warranted another diagnostic code. As dry eye syndrome is not a condition specifically listed in the rating schedule, so it should be rated by analogy to a closely related disease or injury in which the functions affected, anatomical location, and symptomatology are closely analogous. See 38 C.F.R. § 4.20. Thus, the Board has looked to DCs 6000-6046 relating to disabilities of the eye. The Veteran’s dry eye syndrome relates, in part, to dysfunction of the meibomian gland, which is part of the bodily system that creates the oil component of tears. This is similar to DC 6025, disorders of the lacrimal apparatus, which also affect tear creation. In this case, however, the Veteran’s actual symptoms, such as redness, itching, burning, pain, and blurred vision, are more analogous to active chronic conjunctivitis under DC 6018. By contrast, the listed disorders of the lacrimal apparatus (epiphora and dacryocystitis) both result in excessive tears, which is not one of the Veteran’s symptoms. Thus, the Board finds that DC 6018 is most appropriate diagnostic code for rating this disability because of its analogous location, symptoms, and affected functions. Accordingly, a higher rating is not warranted under DC 6025 or any other diagnostic code. Based on the above, a 10 percent rating, but not higher, is warranted for bilateral eye disability. To that extent, her appeal is granted. REASONS FOR REMAND 1. Service connection for hematuria and voiding dysfunction (claimed as bladder condition) is remanded. 2. Service connection for menometrorrhagia (also claimed as irregular menstrual disorders) is remanded. During the pendency of this appeal, the Veteran has been awarded service connection for fibromyalgia, chronic fatigue syndrome, and irritable bowel syndrome. She has subsequently submitted abstracts of an August 2010 study suggesting a relationship between interstitial cystitis (which is listed in her treatment records as a possible diagnosis for her urinary complaints) and fibromyalgia, chronic fatigue syndrome, and irritable bowel syndrome; and an abstract of an August 2015 study suggesting a relationship between gynecological conditions, including abnormal menses, and chronic fatigue syndrome. The record does not currently contain medical nexus opinions regarding secondary service connection for these conditions and so a remand is necessary to obtain such opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hematuria and voiding dysfunction are at least as likely as not proximately due to or aggravated beyond its natural progression by service-connected disability, to include fibromyalgia, chronic fatigue syndrome, and irritable bowel syndrome. The examiner is asked to specifically discuss the study referenced in the August 2010 abstract. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s menometrorrhagia is at least as likely as not proximately due to or aggravated beyond its natural progression by service-connected disability, to include chronic fatigue syndrome. The examiner is asked to specifically discuss the study referenced in the August 2015 abstract. 3. Finally, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, then furnish the Veteran and her representative with a supplemental statement of the case and allow them an opportunity to respond. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Houbeck 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.