Citation Nr: 21000478 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 08-01 630 DATE: January 5, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine (lumbar spine disability) is denied. REMANDED Entitlement to burial benefits at the service-connected rate is remanded. FINDING OF FACT For the entire appeal period, the Veteran’s lumbar spine disability had not manifested in forward flexion to 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least four weeks. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5010-5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to April 1969. He died in August 2016. The appellant is his adult daughter, who has been recognized as the eligible substitute claimant in the current appeal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. A December 2017 Board decision, in pertinent part, granted a 20 percent disability rating, but no higher, for the Veteran’s lumbar spine disorder for the entire appeal period. In October 2018, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand (JMPR), which remanded the increased rating for a lumbar spine disorder for additional development consistent with the terms of the JMPR. Specifically, in the JMPR, the parties agreed that the Board erred in relying, in part, on inadequate medical examinations and opinions which failed to determine the specific degrees of additional limitation of motion during flare-ups or following repetitive use. Additionally, the JMPR agreed to not disturb the Board’s decisions regarding disability ratings for radiculopathy of the bilateral lower extremities, coronary artery disease, and posttraumatic stress disorder. In August 2019, the Board remanded this matter for additional development, to include obtaining a retrospective opinion. That development having been completed, this matter has returned to the Board for further appellate review. In the interim, the issue of total disability for individual employability was granted for the entirety of the period on appeal and is not relevant here. On review of the record, the Board finds that there has been substantial compliance with its August 2019 remand directives, namely that a retrospective medical opinion was obtained. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a remand request is required). Increased Rating VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Schedule assigns Diagnostic Codes to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two Diagnostic Codes are applicable to the same disability, the Diagnostic Code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different Diagnostic Codes-a practice known as pyramiding-is prohibited. Id.; see 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent they are sufficient to warrant changes in the evaluations assignable under the applicable rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). For increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also 38 C.F.R. § 3.400(o)(2). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; see Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that pain “must actually affect some aspect of ‘the normal working movements of the body’ [under] 38 C.F.R. § 4.40 in order to constitute functional loss” warranting a higher rating). With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the provisions of 4.40 and 4.45 are not subsumed by the DC’s applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The regulations provide that back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1) (“an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician”). The Board notes that the Veteran has not been found to have IVDS. Therefore, the Formula for Rating IVDS Based on Incapacitating Episodes does not provide an adequate basis to assign an increased disability rating. The General Rating Formula for Diseases and Injuries of the Spine provides, in pertinent part, 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. 38 C.F.R. § 4.71a. 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. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id. The above criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine. Id. This is because the criteria “are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.” 68 Fed. Reg. 51,454, 51,455 (August 27, 2003) (Supplementary Information). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are from 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2). Unfavorable ankylosis is defined, in pertinent part, as “a condition in which the entire thoracolumbar spine is fixed in flexion or extension.” Id., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. The General Rating Formula also provides that associated neurologic abnormalities will be separately rated. See id., Note (1). As stated above, the Veteran’s disability ratings for his bilateral lower extremity radiculopathy were not disturbed by the JMPR. Accordingly, these ratings will not be addressed by the Board. The Veteran’s lumbar spine disability was rated as 20 percent disabling under Diagnostic Code 5010-5242. See 38 C.F.R. § 4.71a. See also 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Diagnostic Code 5010 pertains to arthritis. Diagnostic Code 5242 pertains to degenerative arthritis of the spine. At an August 2007 VA examination, the Veteran reported worsening low back symptoms, primarily of stiffness and aching pain. He further reported flare-ups every two to three months, lasting up to two weeks in duration. During flare-ups, the Veteran described his symptoms as more intense, with increased pain and limited walking and standing. He denied any incapacitating episodes or requiring the use of any assistive devices. His ROM in forward flexion was limited to 70 degrees on active and passive motion. His extension and his right and left lateral rotation were each limited to 20 degrees, on active and passive motion; his right and left lateral flexion was limited to 25 degrees, on active and passive motion. The examiner noted no pain during any ROM measurement. Ankylosis was not found. The examiner noted the Veteran was unable to assess his additional limitation of motion or functional impairment during flare-ups. See August 2007 Spine Examination Report. A December 2012 VA examination report reflects the Veteran experienced flare-ups following prolonged sitting or standing. ROM testing was abnormal, with flexion limited to 55 degrees; extension, right and left lateral flexion, and right and left lateral rotation each limited to 20 degrees. Pain was noted on all ROM measurements, including starting at 45 degrees of forward flexion. The Veteran was able to perform repetitive-use testing with three repetitions and no loss of ROM. Functional loss was described as less movement than normal and pain. The examiner noted the Veteran did not have IVDS. See December 2012 Back Conditions Disability Benefits Questionnaire (DBQ). A March 2013 addendum opinion found that there did not appear to be any additional loss of motion with repetitive use, rationalizing that the Veteran’s ROM did not diminish after repetitive-use testing with three repetitions. See March 2013 Addendum. A May 2013 VA examiner indicated that, based upon the Veteran’s level of back disease, it was likely he would have additional range of motion loss during flares, along with functional impact (with pain and weakness of the back) when the back was used repeatedly and/or with flare-ups. However, the examiner stated that it would be speculation to specifically state the actual degrees of additional loss of motion during a flare or when the back was used repetitively, as an objective examiner needed to be present to obtain any additional degrees of loss of motion. See May 2013 Back Conditions DBQ. At a January 2016 VA examination, the Veteran reported ongoing back pain since the 1970’s. The Veteran denied experiencing flare-ups, but noted functional loss in his impairment of waling, bending, and lifting. ROM testing revealed flexion limited to 75 degrees, extension to 10 degrees, right lateral flexion and rotation to 25 degrees, and left lateral flexion and rotation to 30 degrees. There was no evidence of pain with weight-bearing. The Veteran was able to perform repetitive-use testing with three repetitions and no loss of ROM. The examiner noted the Veteran did not have ankylosis or IVDS. The Veteran’s functional impairment was reflected as difficulty with repetitive bending, twisting, climbing, crawling, and squatting. See January 2016 Back Conditions DBQ. A January 2016 addendum report reflected that pain and weakness could significantly limit functional ability during flare-ups or when the spine is used repeatedly over a period of time. The examiner noted that it was not possible to determine the actual degrees of additional ROM loss as an examiner would have to be present to objectively determine those losses. See January 2016 Addendum. Pursuant to the JMPR, a retrospective opinion to assess the feasibility in determining functional loss, in terms of additional loss of ROM, during flare-ups or after repetitive use was obtained. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In March 2016, the Veteran stated that his back disorder limits his movements on a daily basis and required the use of pain medication. See March 2016 Statement in Support of Claim. The October 2019 examiner, following a thorough review of the claims file, opined that a retrospective opinion was not feasible. The examiner explained that, given the lack of information in the claims file regarding additional loss during flare-ups or after repetitive use, there was no objective manner in which to determine actual additional loss of motion unless an unbiased, objective examiner was present to determine such loss. The only other alternative would have been to directly question the Veteran and have him demonstration how much additional loss he experienced during flare-ups or after repetitive use. This method, however, was deemed generalized and relatively inaccurate. As the Veteran had passed away, and the treatment records offered no insight into the additional loss of motion during flare-ups or after repetitive use, the examiner essentially found that quantification of the additional loss was not feasible by medical science. While this opinion also notes the lack of an autopsy report in the file (it was later associated with the file by the claimant), that report had no bearing on the issue of additional loss of ROM of the spine. See October 2019 Medical Opinion DBQ. The Board finds the October 2019 opinion adequate. In this regard, the opinion was not solely based upon the presence of an examiner being required during a flare-up or after repetitive use to gauge additional loss. Rather, the examiner found that a retrospective opinion could be feasible based upon relevant treatment records or the Veteran’s own demonstration, but the claims file here did not contain any information in that respect. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and has sound reasoning for the conclusion.). As such, the October 2019 medical opinion is compliant and consistent with Sharp v. Shulkin, 29 Vet. App. 26. Based on the foregoing, the Board finds that a rating in excess of 20 percent is not warranted at any point during the appeal period. In this regard, the evidence does not show that the Veteran’s forward flexion of the thoracolumbar spine was limited to 30 degrees or less, or that he had favorable ankylosis of the spine. Rather, the evidence shows the Veteran’s forward flexion was, at worst, limited to 45 degrees with pain, and there is no evidence of ankylosis. 38 C.F.R. § 4.71a. The Board notes that the Veteran had consistently reported experiencing pain throughout the appellate period. During his life, the Veteran was certainly competent to report pain, and the Board finds his reports credible. Nevertheless, the Veteran’s pain and functional loss did not result in limited motion severe enough to warrant an increased rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that pain “must actually affect some aspect of ‘the normal working movements of the body’ [under] 38 C.F.R. § 4.40 in order to constitute functional loss” warranting a higher rating). Furthermore, the Veteran’s 20 percent disability rating already takes into consideration that he is experiencing painful motion. In conclusion, a rating in excess of 20 percent is not warranted at any time during the appeal period. 38 C.F.R. § 4.71a. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to burial benefits at the service-connected rate is remanded. Unfortunately, another remand is required as there has not been substantial compliance with the directives of the previous Board remands. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives); Dyment v. West, 13 Vet. App. 141, 146-47 (1997) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). In this regard, the August 2019 remand directed the RO to obtain a copy of the Veteran’s autopsy report as well as an opinion as to whether his service-connected disabilities were either the principal or contributory cause of his death. The October 2019 medical opinion provided a negative nexus, rationalizing that the sole cause of death listed on the Veteran’s death certificate was blunt force injury to the torso. The Board notes that the examiner did not address the appellant’s contention that the Veteran’s service-connected disabilities were a contributory cause of death, or interfered with his ability to recover from his injuries. See June 2017 Notice of Disagreement; Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (noting that, generally, a medical opinion should address the appropriate theories of entitlement). Under 38 C.F.R. § 3.312(c)(3), service-connected diseases involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, even if the primary cause is unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other diseases primarily causing death. Here, the Veteran was service-connected for CAD, rated as 60 percent disabling. On remand, an addendum opinion should be obtained, as set forth below. The matters are REMANDED for the following action: Return the claims file to the October 2019 examiner. If this examiner is not available, forward the claims file to another appropriate examiner. The claims file should be made available to the examiner for review in conjunction with the opinion, to include a copy of the autopsy report. Following a review of the claims file, the examiner should provide the following opinions: Is it at least as likely as not (50 percent probability or greater) that one, or a combination of the Veteran’s service-connected disabilities, was either the principal or contributory cause of his death? Is it at least as likely as not (50 percent probability or greater) that Veteran’s service-connected disabilities affecting his vital organs (i.e., his heart), were a material influence in accelerating his death, or rendered the Veteran materially less capable of resisting the effects of his primary cause of death? A complete rationale must be provided for all opinions given. Emily Tamlyn Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, 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.