Citation Nr: 21000761 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 11-08 104 DATE: January 6, 2021 ORDER Entitlement to a rating in excess of 20 percent for residuals of vertebral fracture prior to December 14, 2018 is denied. REMANDED Entitlement to a rating in excess of 20 percent for residuals of vertebral fracture from December 14, 2018 is remanded. FINDING OF FACT For the period of appeal prior to December 14, 2018, the Veteran’s residuals of vertebral fracture manifested with forward flexion no less than 35 degrees, including with consideration of functional loss. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for residuals of vertebral fracture prior to December 14, 2018 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5235 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1970 to January 1973 and August 1974 to December 1977. This March 2011 appeal comes before the Board of Veterans’ Appeals (Board) from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Cleveland, Ohio, which granted an increased rating of 20 percent for residuals of vertebral fracture, effective June 30, 2006. The RO issued a January 2016 supplemental statement of case (SSOC) and the case was certified to the Board in March 2016 for adjudication. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the entire recorded history, and each disability must be considered from the viewpoint of the Veteran working or seeking wok. 38 C.F.R. § 4.2. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all increased rating claims, staged ratings must be considered for the entire period on appeal. A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code(s). Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating a musculoskeletal disability, VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); see also 38 C.F.R. § 4.59. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disability. 38 C.F.R. § 4.14. A Veteran may have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 1. Entitlement to a rating in excess of 20 percent for residuals of vertebral fracture prior to December 14, 2018 The Veteran contends that he is entitled to a higher rating for his service-connected lumbar disability, diagnosed as residuals of vertebral fracture, rated pursuant to 38 C.F.R. § 4.71a. The Veteran states that his condition has worsened, that he has limited motion, he cannot lift more than 30lbs and has difficulty standing for long periods of time. The Veteran’s lumbar disability, residuals of vertebral fracture, is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5235. Under the General Rating Formula for Diseases and Injuries of the Spine, DC’s 5235 to 5243, 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. VA examiners must 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.” Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59. The spine has no opposite joint. 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. Sharp v. Shulkin, 29 Vet. App. 26 (2017). During a January 2006 private medical appointment, the Veteran reported headaches and neck pain but denied having back or joint pain. See August 2006 Private Medical Treatment Records. However, during a routine medical appointment in June 2006, the Veteran indicates he has ongoing low back pain. See March 2007 VA Medical Treatment Records. In his October 2009 statement, the Veteran describes how the pain caused by his lumbar disability sometimes makes it difficult for him to get out of bed, shower and dress himself. See October 2009 Correspondence. The Veteran stated he has been to multiple doctors, tried physical therapy, chiropractic treatment, and has tried multiple pain medications without relief. Id. The pain interferes with his ability to walk or to drive a car. Id. In an October 2009 buddy statement, a friend of the Veteran, M.F, stated that the Veteran often has pain that makes it difficult to walk, shop or travel long distances in a car. See October 2009 Correspondence. The Veteran has difficulty sleeping and has been hospitalized due to pain. Id. During an October 2009 VA examination, the Veteran reported daily pain and stiffness. He reported daily flare-ups caused by walking, running or sitting for long periods of time. Id. Initial range of motion testing indicated the Veteran’s forward flexion was to 80 degrees and extension was to 10 degrees. Left and right lateral flexion was to 30 degrees bilaterally and left and right lateral rotation was to 30 degrees bilaterally. The Veteran had pain with all ranges of motion. After repetitive testing, the Veteran’s forward flexion was to 45 degrees and extension was to 20 degrees. There was no functional loss or loss of range of motion noted for left and right lateral flexion or lateral rotation. Id. No radiculopathy, ankylosis, or neurologic abnormalities were noted. The Veteran’ gait and posture were noted as normal. Id. During a January 2010 VA examination, the Veteran reported constant pain that ranges from sharp to dull based on activity in addition to fatigue, stiffness and weakness. He reports severe flare-ups that occur every 2 to 3 weeks and last approximately 3 to 7 days. Id. Active range of motion testing indicated the Veteran’s forward flexion was to 60 degrees and extension was to 15 degrees. Left and right lateral flexion was to 20 degrees bilaterally and left and right lateral rotation was to 20 degrees bilaterally. Id. The Veteran had pain with all ranges of motion. The Veteran was able to perform repetitive use testing without additional functional loss or loss in range of motion. No radiculopathy, ankylosis, intervertebral disc syndrome (IVDS), or neurologic abnormalities were noted. Id. The Veteran had normal posture but a slow-paced gait. Id. The Veteran exhibited normal muscle strength. An April 2010 x-ray revealed normal alignment and the disc spaces and vertebral body heights were well maintained. See May 2010 VA Medical Treatment Records. There was evidence of mild discogenic disease. Id. In his May 2010 notice of disagreement (NOD) the Veteran indicated that he had attempted to go to physical therapy but needed to stop because it made his condition worse and caused increased pain in his lower back and legs. During an October 2015 VA examination, the Veteran reported pain, weakness and a feeling of lifelessness in his legs after walking short distances. He underwent a January 2015 minimally invasive L4-5 laminotomy which provided temporary relief. See Id., October 2015 Private Medical Treatment Records. He denied flare-ups. Initial range of motion testing indicated the Veteran’s forward flexion was to 45 degrees and extension was to 20 degrees. Id. Left and right lateral flexion was to 25 degrees bilaterally and left and right lateral rotation was to 30 degrees bilaterally. There was evidence of pain with weight bearing. The Veteran exhibited normal muscle strength. The Veteran was able to perform repetitive use testing without additional functional loss or loss in range of motion. No radiculopathy, ankylosis, intervertebral disc syndrome (IVDS), or neurologic abnormalities were noted. Occasional use of cane was noted. Id. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for residuals of vertebral fracture. The objective findings of the October 2009, January 2010 and October 2015 VA examinations do not show forward flexion limited to 30 degrees or less. There is no evidence of record of ankylosis of the entire thoracolumbar spine. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, difficulty with getting out of bed, washing, walking, driving, daily stiffness, and limitation of motion. See June 2006 Statement in Support of Claim, October 2009 Correspondence. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, it does not suggest a degree of additional 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. 38 C.F.R. § 4.71a. Therefore, a rating of 40 percent for residuals of vertebral fracture is not warranted. The Board finds that the Veteran’s reported symptoms are commensurate with a 20 percent rating for residuals of vertebral fracture. The Board also finds that the preponderance of the evidence is against forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Therefore, a rating of 40 percent is not warranted. 38 C.F.R. § 4.71a, DC 5235-5243. For the foregoing reasons, the preponderance of the evidence is against the claim for a rating in excess of 20 percent prior to December 14, 2018 for residuals of vertebral fracture. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for residuals of vertebral fracture from December 14, 2018 is remanded. In a December 2018 supplemental claim, the Veteran asserted that his lumbar condition had worsened, that his pain had increased in severity and that he could hardly stand anymore. A VA examination was privided in March 2019 to determine the current severity and manifestations of his lumbar disability. In a April 2019 rating decision, the RO denied the Veteran’s claim for an increased rating but defferred the issue of radiculopathy. A supplemental May 2019 rating decision included the issue of lower extremity radiculopathy as part of the Veteran’s current appeal. During his March 2019 VA examination, the Veteran reported weakness, fatigue and pain in his lower lumbar region that radiates down his left buttock, hip and leg into his toes. He reported flare-ups of increased pain with sitting, standing or walking. Id. Initial range of motion testing indicated the Veteran’s forward flexion was to 65 degrees and extension was to 5 degrees. Id. Left lateral flexion was to 25 degrees and right lateral flexion was to 20 degrees; left lateral rotation was to 30 degrees and right lateral rotation was to 20 degrees. There was evidence of pain with passive range of motion and weight bearing. Id. The Veteran exhibited decreased muscle strength, reflex and sensory response. The VA examiner noted radiculpathy of the L4-5 and S1-3 nerve roots, mild on the right and severe on the left side. Id. The examiner did not note ankylosis, intervertebral disc syndrome (IVDS), or other neurologic abnormalities. Id. An April 2019 VA examiner was unable to provide a through analysis reagrding the Veteran’s radiculopathy and expained that neuropathies and radiculopathies can produce similar symptoms, but are separate and distinct conditions. Electromyography (EMG) can be helpful to determine which symptoms and/or severity belong to each condition, but the Veteran did not have the testing. See May 2019 VA Examination. The Veteran has a known diagnosis of diabetes mellitus with bilateral diabetic neuropathy in addition to bilateral lumbar radiculopathy. Id. The VA examiner stated that since the symptoms of bilateral lower diabetic neuropathy and radiculopathy are overlapping, the severity cannot be separated out without resorting to speculation. Id. In a follow up July 2019 VA medical opinion, the examiner was asked to determine if the Veteran’s bilateral lower radiculopathy was separate and distinct from his bilateral diabetic neuropathy. The VA examiner opined that the Veteran’s bilateral lower radiculopathy is a separate and distinct condition from his diabetic neuropathy. Id. However, there is no additional information regarding the the severity of the Veteran’s radioculpathy to assist the Board in determining the Veteran’s claim. VA had a duty to assist the Veteran in developing evidence to corroborate his claim. The March 2019 VA examination indicated that the Veteran has bilateral lower radiculopathy related to his lumbar disability. However, due to the Veteran’s existing bilateral diabetic neuropathy and the overlapping symptoms between the two conditions, the April 2019 VA examiner was unable to determine the severity of the Veteran’s bilateral lower radiculopathy and indicated an EMG was needed to determine the two condition’s respective symptoms and severity. See May 2019 VA Examination. Therefore, the Board concludes there is insufficient evidence to decide the claim and an additional medical examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board finds a remand is necessary for additional development of the claim, including a medical examination to determine the etiology, symptoms and severity of the Veteran’s bilateral lower radiculopathy. The matters are REMANDED for the following action: 1. Obtain a VA medical examination by an appropriate medical professional in connection with Veteran’s bilateral lower radiculopathy. If necessary, the examiner should complete any testing, including but not limited to an EMG, to determine the symptoms and severity related to his radiculopathy. The entire claims file must be reviewed by the examiner. Following a complete review of the electronic claims file, the examiner is asked to provide an opinion as to the symptoms and severity related to Veteran’s bilateral lower radiculopathy. A rationale for all opinions expressed should be provided as the Board is precluded from making medical findings. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board, including citation to any supporting medical treatises. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Aubee, 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.