Citation Nr: 21003089 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-19 573A DATE: January 19, 2021 ORDER Service connection for psoriatic arthritis is dismissed. Service connection for a kidney disorder is dismissed. A rating higher than 20 percent for a left shoulder disability is dismissed. A separate rating for left shoulder instability is dismissed. A rating higher than 20 percent for a cervical spine disability, prior to October 16, 2019, is dismissed. A rating higher than 20 percent for a lumbar spine disability, prior to October 16, 2019, is dismissed. A rating higher than 10 percent for a right ankle disability, prior to June 2, 2015, is dismissed. A rating higher than 30 percent for a cervical spine disability, from October 16, 2019, is denied. A rating higher than 40 percent for a lumbar spine disability, from October 16, 2019, is denied. A 30 percent rating, but no higher, for a right ankle disability, from June 2, 2015, is granted. FINDINGS OF FACT 1. On December 1, 2020, the Veteran, through his attorney, withdrew the following issues on appeal: service connection for psoriatic arthritis; service connection for a kidney disorder; an increased rating for a left shoulder disability; a separate rating for left shoulder instability; an increased rating for a cervical spine disability, prior to October 16, 2019; an increased rating for a lumbar spine disability, prior to October 16, 2019; and an increased rating for a right ankle disability, prior to June 2, 2015. 2. Since October 16, 2019, the Veteran’s service-connected disability has not resulted in unfavorable ankylosis of the entire cervical spine. 3. Since October 16, 2019, the Veteran’s service-connected disability has not resulted in unfavorable ankylosis of the entire thoracolumbar spine. 4. Resolving all reasonable doubt in the Veteran’s favor, his service-connected disability has resulted in ankylosis of the right ankle in dorsiflexion between 0 and 10 degrees, since June 2, 2015. CONCLUSIONS OF LAW 1. The criteria for dismissal of the following issues on appeal have been met: service connection for psoriatic arthritis; service connection for a kidney disorder; an increased rating for a left shoulder disability; a separate rating for left shoulder instability; an increased rating for a cervical spine disability, prior to October 16, 2019; an increased rating for a lumbar spine disability, prior to October 16, 2019; and an increased rating for a right ankle disability, prior to June 2, 2015. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a rating higher than 30 percent for a cervical spine disability, from October 16, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a. 3. The criteria for a rating higher than 40 percent for a lumbar spine disability, from October 16, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a. 4. The criteria for a 30 percent rating, but no higher, for a right ankle disability, from June 2, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5270. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1999 to March 2002. This case returns to the Board of Veterans’ Appeals (Board) after a remand to the agency of original jurisdiction (AOJ) in November 2019. The AOJ substantially complied with the Board’s remand instructions, and the claims identified above are ready for further review. Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the AOJ assigned a total disability rating based on individual unemployability (TDIU), from December 20, 2014. See October 2020 rating decision. The Board finds that this decision constitutes a full grant of the benefits sought on appeal. As such, the TDIU issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The AOJ also certified a separate appeal, regarding service connection for nine other disabilities, to the Board in September 2020. See VA Form 8. A virtual tele-hearing for that appeal is currently scheduled for January 2021. The Board will therefore address those issues in a future decision as necessary. Withdrawal of Issues on Appeal On December 1, 2020, the Veteran, through his attorney, expressed his desire to withdraw seven issues on appeal: service connection for psoriatic arthritis; service connection for a kidney disorder; an increased rating for a left shoulder disability; a separate rating for left shoulder instability; an increased rating for a cervical spine disability, prior to October 16, 2019; an increased rating for a lumbar spine disability, prior to October 16, 2019; and an increased rating for a right ankle disability, prior to June 2, 2015. Under 38 C.F.R. § 19.55, a claimant, or their authorized representative, may withdraw an appeal as to any or all issues involved at any time before the Board promulgates a decision. The Board finds that the Veteran’s December 2020 correspondence satisfies the criteria for withdrawal. As there are no remaining allegations of error of fact or law for appellate review, these issues are dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. Increased Ratings The Veteran continues to seek higher ratings for service-connected cervical and lumbar spine disabilities, for the period since October 16, 2019, and a service-connected right ankle disability, for the period since June 2, 2015. Disability evaluations are determined by the application of VA’s Schedule of Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. VA must evaluate all of the evidence so that its decisions are equitable and just. 38 C.F.R. § 4.6. Where there is a question as to which of two evaluations shall be applied, a higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, VA must consider functional loss caused by pain or other factors that could occur during flare-ups or after repeated use which may not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.45, VA must also consider 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). Under 38 C.F.R. § 4.59, painful motion associated with joint or periarticular pathology typically warrants at least the minimum compensable rating for the affected joint. Id. at 36; see also Burton v. Shinseki, 25 Vet. App. 1 (2011). Cervical spine disability On remand, the AOJ increased the Veteran’s rating for cervical strain with degenerative disc disease from 20 to 30 percent disabling, effective October 16, 2019—the date of his most recent VA examination. See October 2020 supplemental statement of the case (SSOC). After careful review, the Board finds that a rating higher than 30 percent is not warranted for the current period. 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 a higher evaluation. See 38 C.F.R. § 4.71a. In this case, there is no evidence that the Veteran has ever been diagnosed with IVDS, or prescribed bed rest or other treatment by a physician for acute signs and symptoms of IVDS. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, at Note 1. The Board will therefore decide both the cervical and lumbar spine claims based on the General Formula criteria. Under the General Formula, a 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For VA purposes, unfavorable ankylosis means that 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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id., General Formula at Note 5. Essentially, the Board must decide whether the Veteran’s cervical spine disability is manifest by unfavorable ankylosis. The Board finds that it is not. During the October 2019 examination, the Veteran described near constant pain and limited range of motion, which is worse between his shoulder blades. He reported stinging and tingling in his left arm, which the examiner attributed to shoulder neuralgia, rather than the neck disability. (As noted above, the left shoulder disability rating issue is no longer before the Board.) He also reported flare-ups of pain and swelling, making neck movement difficult, plus popping. He noted difficulty driving and seeing his surroundings due to the neck disability, as well. This account of subjective symptoms and functional impairment is generally consistent with his August 2019 testimony before the undersigned. See Hearing Transcript at 6-7. The Board finds these lay statements to be competent and credible. On examination, the Veteran’s cervical spine range of motion was from 0 to 12 degrees on forward flexion, with no additional loss after three repetitions. The 2019 examiner was unable, based on the Veteran’s clinical presentation and reports, to estimate additional loss of motion in degrees with repeated use over time or during flare-ups. Most significantly, the examiner found no evidence of ankylosis of the spine. The report notes that imaging studies performed in September 2019 showed mild degenerative changes at the C4-C6 level. Overall, these clinical findings support a 30 percent rating but no higher. There is conflicting evidence in contemporaneous VA medical records concerning ankylosis. The Veteran’s rheumatologist, “Dr. D.B.,” ordered imaging in September 2019. Initially, Dr. D.B. determined that PA films showed ankylosis at the C2-C6 level. However, in an addendum days later, Dr. D.B. explained he “was incorrect in [his earlier] read of these films,” and that that Veteran “likely does not have fusion ankylosis in his neck.” In February 2020, a VA nurse practitioner also noted a diagnosis of cervical ankylosis in a rheumatology treatment report. However, this diagnosis appears to be based solely on Dr. D.B.’s incorrect, earlier read of the PA films. The nurse practitioner apparently overlooked Dr. D.B.’s October 2019 addendum. In any event, a 40 percent rating (or higher) requires a showing of unfavorable ankylosis of the entire cervical spine. The Board finds no competent evidence that the Veteran’s entire cervical spine (as opposed to the C2-C6 vertebrae) is fixed in flexion or extension, or that ankylosis has caused any of the specific symptoms or impairments described in Note 5 to the General Formula. This is the case even when considering the Veteran’s reports of increased pain, stiffness, and difficulty moving his neck during flare-ups. In the absence of such evidence, an increased rating is not warranted. Thus, the preponderance of evidence is against a rating higher than 30 percent for the period since October 16, 2019. As such, the benefit-of-the-doubt rule is not applicable in this instance. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appeal must be denied. Lumbar spine disability The AOJ also increased the Veteran’s rating for lumbar strain with degenerative disc disease and degenerative arthritis from 20 to 40 percent, effective October 16, 2019. See October 2020 SSOC. On review, the Board finds that a rating higher than 40 percent for the current period is not warranted. Under the General Formula, 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. As with the cervical spine disability, the Board must decide whether the Veteran’s lumbar spine disability is manifest by unfavorable ankylosis. Again, the record does not support this finding. During the October 2019 examination, the Veteran reported that lumbar flare-ups affect his ability to stand or sit for prolonged periods, and prevent him from laying on his side. He also stated that he cannot bend, twist or turn from the waist, that he cannot drive due to difficulty sitting for periods of time, and that he needs help putting on shoes and socks. He reported that he constantly uses a walker for his back disability. This account of subjective symptoms and functional impairment is generally consistent with his hearing testimony two months earlier. See Transcript at 4-5. The Board finds these lay statements to be competent and credible. The Veteran demonstrated forward flexion from 0 to 30 degrees. Pain and imbalance prevented him from completing three repetitions. The 2019 examiner was unable, based on the Veteran’s clinical presentation and reports, to estimate additional loss of motion in degrees with repeated use over time or during flare-ups. The examiner found no evidence of ankylosis of the spine. The report notes that diagnostic imaging from 2018 revealed mild lower lumbar degenerative disc changes. The examiner’s findings support a 40 percent rating but no higher. At hearing, the Veteran’s attorney asserted that VA treatment records from 2014 and 2015 specifically noted ankylosis of the lumbar spine. However, neither the Veteran nor his attorney identified more recent evidence of ankylosis. After reviewing the available medical records, the Board finds no evidence of lumbar ankylosis during the current period on appeal, let alone unfavorable ankylosis as defined in Note 5 to the General Formula. Even considering the Veteran’s reported symptoms during flare-ups, the Board concludes that his lumbar disability has not resulted in unfavorable ankylosis warranting a 50 or 100 percent rating during this period. As the preponderance of evidence is against a rating higher than 40 percent since October 16, 2019, the benefit-of-the-doubt rule is not applicable. Gilbert, 1 Vet. App. at 53. The appeal must be denied. Right ankle disability Lastly, the AOJ increased the Veteran’s right ankle rating from 10 to 20 percent, effective June 2, 2015—the date of a relevant VA treatment report. See October 2020 SSOC. The Board finds that the record supports a 30 percent rating, but no higher, for this period. Under Diagnostic Code 5271, a maximum 20 percent rating is awarded for “marked” limited motion of the ankle. 38 C.F.R. § 4.71. Diagnostic Code 5270 allows for ratings higher than 20 percent where there is evidence of ankylosis of the ankle joint. A 30 percent rating is assigned for ankylosis in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees. A maximum 40 percent rating is assigned for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, inversion or eversion deformity. Id. The most probative evidence here is the August 2020 addendum to the October 2019 VA examination report. In the addendum, the examiner wrote that right ankle ankylosis limits dorsiflexion between 0 and 5 degrees, and plantar flexion between 0 and 5 degrees. The examiner attributed this ankylosis to the Veteran’s non-service-connected psoriatic arthritis, per his VA treatment records. The examiner concluded the extent that the service-connected disability contributed to limited range of motion is speculation, and she was “unable to measure a baseline distinction between” the psoriatic arthritis versus the service-connected disability. When it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, the benefit-of-the-doubt rule dictates that such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The examiner’s addendum reflects that is the case here. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that his service-connected disability has resulted in ankylosis of the right ankle in dorsiflexion between 0 and 10 degrees, since June 2, 2015. Gilbert, 1 Vet. App. at 53. The record does not show more pronounced ankylosis warranting the maximum 40 percent rating under Diagnostic Code 5270. A 30 percent rating, but no higher, is granted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.Z. Wall, 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.