Citation Nr: 21001091 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 18-30 863 DATE: January 7, 2021 ORDER Entitlement to a rating in excess of 10 percent for lumbar spinal stenosis with degenerative disc disease at L5-S1 (claimed as low back pain) is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. REMANDED Entitlement to service connection for residuals of a left knee injury is remanded. FINDINGS OF FACT 1. The Veteran’s low back disability is manifest by a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; and painful motion upon examination. 2. His GERD clearly and unmistakably preexisted his service and clearly and unmistakably was not aggravated during or by his service. CONCLUSIONS OF LAW 1. The criteria are not met for a rating in excess of 10 percent for lumbar spinal stenosis with degenerative disc disease at L5-S1. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria also are not met for entitlement to service connection for GERD. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to December 1990. This appeal originates from an April 2018 rating decision and the claims were remanded in May 2020 for further development. This appeal has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2). 1. Entitlement to a rating in excess of 10 percent for the low back disability is denied. The Veteran contends that the existing 10 percent rating for his low back disability is insufficient since it does not contemplate the extent of his symptoms and consequent functional impairment. The Veteran’s low back disability has been rated as 10-percent disabling effectively since May 2017 under 38 C.F.R. § 4.71a, Diagnostic Code 5237, of the General Rating Formula for Diseases and Injuries of the Spine.   According to this General Rating Formula, a 10 percent rating is warranted when forward flexion of the thoracolumbar (thoracic and lumbar) spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal 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 (meaning when additionally considering the adjacent cervical segment). 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). Note (2) (see also 38 C.F.R. § 4.71, Plate I) explains that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, backward extension is from 0 to 30 degrees, left and right lateral flexion (side bending) is from 0 to 30 degrees, and left and right rotation (twisting) is from 0 to 30 degrees. The combined range of motion refers to the sum of the ranges of motions in all those directions and is 240 degrees. Note (5) explains that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 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 Veteran was afforded VA examinations in May 2017, March 2018 and most recently in October 2020 as a result of the Board remanding this claim. In May 2017, the Veteran was found to have a combined range of motion of 175 degrees. Forward flexion measured to 80 degrees and additional symptoms included painful motion. In March 2018, the Veteran was found to have a combined range of motion of his thoracolumbar spine of 205 degrees. Forward flexion measured to 80 degrees and additional symptoms included painful motion. He also reported lower back pain with prolonged walking, standing and sitting. He indicated that, when his lower back pain “kicks in,” he is unable to bend over, lift things, [has] difficulty walking and at times he cannot get up off his chair because “every position is uncomfortable.” In October 2020, the examiner noted the Veteran reported his condition was getting worse. Specifically, the Veteran reported experiencing pain most of the time, but he also indicated he has become use to the pain – which has been occurring for several years. He described the pain as sometimes sharp, but most often a dull pain in his back, occurring both with and without activity. He also reported having numbness and tingling in both lower feet that “comes and goes but is there most of the time.” [Note: he already is being compensated for that since he has separate 20 percent ratings for radiculopathy of his left and right lower extremities.] The examiner also noted objective evidence of pain when the spine is non-weight bearing. Passive range of motion (ROM) of the spine, however, was not performed since, as the examiner explained, it was not feasible to do this in a safe and reasonable manner. Based on the results of those several examinations, so including even the most recent one the Veteran underwent on remand, the Board finds that the preponderance of the evidence is against assigning a rating higher than 10 percent for his low back disability. The Board acknowledges his lay reports of symptoms, also mention that his symptoms are getting worse, and indication that there was functional loss due to pain with prolonged walking, standing and sitting. However, even considering his lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements indicating his low back pain occurs both with and without activity, does not result in the forward flexion of his thoracolumbar spine being greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of his 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 Moreover, consideration also has been given to assigning a rating alternatively under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against finding that bed rest ever has been prescribed by a physician and for a duration meeting the criteria for a higher rating under Diagnostic Code 5243 of this other Formula. Consequently, for the reasons and bases discussed, the preponderance of the evidence is against the Veteran’s claim for a rating greater than 10 percent for his low back disability. In denying any higher 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.   2. Entitlement to service connection for GERD is denied. The Veteran contends that his GERD is attributable to his service. Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any injury or disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Cases in which the condition was “noted” at time of entrance into service, however, as occurred here, rebut the presumption of soundness when entering service. See, e.g., Quirin v. Shinseki, 22 Vet. App. 390, 394, 396 (2009). In this circumstance, the Veteran resultantly cannot bring a claim for service connection for the disability on a direct-incurrence basis, only instead a claim of service-connected aggravation of the disability. And, in this situation, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish aggravation. See Smith v. Shinseki, 24 Vet. App. 40, 47-48 (2010), citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless clear and unmistakable evidence shows the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In such cases, the record must show there was an increase in disability during service to trigger the presumption of aggravation and, in turn, require VA to rebut that presumption with clear and unmistakable evidence showing the increase in disability was not beyond the condition’s natural progression. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.306(b). This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the condition. Due regard will be given the places, types, and circumstances of service and consideration will be accorded hardships of service. Id. VA may show a lack of aggravation by establishing with clear and unmistakable evidence that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). See also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306 -07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for versus against the claim, with a veteran prevailing in either event, or whether instead a preponderance of the evidence is against a claim, in which case the claim conversely is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).   Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be more persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Here, when remanding this claim in May 2020 for needed medical comment, the Board pointed out that it was “noted” even during the Veteran’s April 1967 military enlistment examination that he had a history of gastric ulcers. Thus, the Board needed the medical comment to assist in determining whether he clearly and unmistakably had GERD prior to his service and whether it clearly and unmistakably was not aggravated during or by his service – meaning not worsened at all or, if worsened, not beyond the condition’s natural progression. To this end, the Veteran was afforded a VA examination in October 2020, on remand, at the conclusion of which the examiner opined that this condition clearly and unmistakably preexisted the Veteran’s service. As rationale, the examiner pointed to the Veteran’s entrance examination noting frequent indigestion. The examiner also observed the Veteran had been diagnosed with a gastric ulcer via X ray at age 4, meaning his GERD clearly and unmistakably preexisted his service. Moreover, the examiner also noted that the record does not mention treatment of GERD symptoms during the Veteran’ service, meaning there is no evidence the preexisting condition worsened during his service. Consequently, the Board finds there is clear and unmistakable evidence that there was no increase in disability during his service, certainly not any beyond the condition’s natural progression. Accordingly, as the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is inapplicable, and this claim for GERD must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for residuals of a left knee injury is again remanded. Pursuant to the prior May 2020 remand, the Veteran was afforded a VA examination to ascertain the nature and etiology of this claimed left knee disability. He initially had had a VA examination in August 2017 for this needed medical comment; however, the examiner had indicated the Veteran did not at the time of that evaluation exhibit objective evidence of a left knee condition. But, as noted in the prior May 2020 remand, a review of his post-service VA treatment records showed that knee arthralgia was listed as an active diagnosis. Consequently, the examiner on remand was tasked with addressing this evidence suggesting the Veteran at least has a left knee disability or had one during the pendency of this claim or recent or contemporaneous to the filing of it. The October 2020 VA examination the Veteran had, on remand, resulted in a diagnosis of left knee strain, but the examiner concluded the strain is unrelated to the left knee injury the Veteran sustained during his service. In explanation, the examiner essentially determined the strain in service was acute so did not result in chronic residual disability – including in the way of the strain more recently diagnosed. The examiner pointed out that X-rays taken in the interim, in 2012 and 2015, were normal and did not show indication of arthritis or other abnormality. The examiner, however, did not address the August 2017 treatment note indicating left knee arthralgia or reconcile that diagnosis with the diagnosis, instead, of strain.   Accordingly, this remaining claim is again REMANDED for the following still additional development and consideration: Obtain supplemental medical comment reconciling the most recent October 2020 VA examiner’s diagnosis of left knee strain with the prior indication in August 2017 and December 2017 active problem list that the Veteran has left knee arthralgia. Whether the Veteran actually needs to be re-examined (meaning undergo another in-person examination) to provide this additional medical comment is left to the discretion of the clinician designated to provide this addendum opinion. To assist in making this important determination, the claims file, including a complete copy of this decision and remand, must be made available to the examiner for review and consideration of the relevant history. In providing this additional comment, not only must the examiner reconcile these two diagnoses (strain versus arthralgia), but if, like the October 2020 examiner determined, the arthralgia (like the strain) is unrelated to the Veteran’s service, there must be explanation for this disassociation.   Thus, when responding, whether favorably or unfavorably, it is essential the examiner provide explanatory rationale – preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.