Citation Nr: 21004552 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-09 127 DATE: January 27, 2021 ORDER Prior to August 28, 2020, a rating in excess of 40 percent for degenerative arthritis of the lumbar spine is denied. A 50 percent rating is granted for degenerative arthritis of the lumbar spine from August 28, 2020. Entitlement to special monthly pension (SMP) benefits based on the need for the regular aid and attendance of another person is granted. Entitlement to compensation under 38 U.S.C. § 1151 for median and ulnar neuropathy of the left upper extremity is granted. FINDINGS OF FACT 1. Prior to August 28, 2020, the evidence does not show that the Veteran’s degenerative arthritis of the lumbar spine required physician prescribed bedrest for six months a year or resulted in unfavorable ankylosis of the entire thoracolumbar spine. 2. From August 28, 2020, the Veteran’s degenerative arthritis of the lumbar spine approximated unfavorable ankylosis of the entire thoracolumbar spine. 3. The Veteran's service-connected lumbar spine disability and radiculopathy of the lower extremities render him in need of regular aid and attendance of another person. 4. The Veteran has an additional disability, to include left upper extremity ulnar neuropathy and median neuropathy, as a result of a VA medical procedure for a pacemaker implant in October 2009. 5. The weight of the evidence supports a finding that the additional disabilities of left upper extremity ulnar neuropathy and median neuropathy were due to lack of proper care by VA or by an event that was not reasonably foreseeable. CONCLUSIONS OF LAW 1. Prior to August 28, 2020, the criteria for a rating higher than 40 percent for lumbar spine degenerative joint disease are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. 2. From August 28, 2020, the criteria for a 50 percent rating for lumbar spine degenerative joint disease are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. 3. The criteria for special monthly pension based on the regular aid and attendance of another person have been met. 38 U.S.C. §§ 1114 (l), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352(a). 4. The criteria for establishing entitlement to benefits under 38 U.S.C. § 1151 for left upper extremity median and ulnar neuropathy, caused by VA medical treatment in February 2009 are met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1986 to December 1989 and from February 1991 to August 1991. In April 2018, the Veteran testified at a videoconference hearing. A transcript of the hearing has been reviewed. The Board previously remanded this matter for additional development in January 2019. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate or "staged" evaluations may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. 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. Painful motion is entitled to at least the minimum compensable rating. See Burton v. Shinseki, 25 Vet. App. 1 (2011). This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The United States Court of Appeals for Veterans' Claims also has held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [,or] endurance." Id., quoting 38 C.F.R. § 4.40. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Court has held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered. Massey v. Brown, 7 Vet. App. 204, 208 (1994). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran's lumbar spine disability is rated according to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. There are several notes following the General Rating Formula criteria, which provide the following: First, associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurological disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome based upon Incapacitating Episodes provides that a 40 percent rating is assignable with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is assignable with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). 1. Increased rating for degenerative disc disease L-4 and L-5 Service connection for degenerative disc disease of the lumbar spine has been in effect since November 1992. A 40 percent rating has assigned since January 1996. An increased rating claim was received in July 2010, and another increased rating claim was received in February 2011. An April 2013 rating decision continued a 40 percent rating for the Veteran’s lumbar spine disability. The Veteran contends that a higher rating is warranted for incapacitating episodes of intervertebral disc syndrome requiring bedrest. At the April 2018 Board hearing, the Veteran testified that a doctor had prescribed bedrest for four months in the preceding year. The Veteran had a VA examination in November 2009. The Veteran reported constant, sharp back pain that radiated to his legs. The Veteran reported that he had self-imposed bedrest due to a combination of his spine disability and his heart condition. The examination did not specify the number of days of bedrest due to his lumbar spine disability. The examination noted forward flexion to 50 degrees and extension from 0 to 50 degrees. He was unable to complete repetitive motion testing due to pain. The Veteran had a VA examination in December 2010. The Veteran reported constant pain with sitting, lying, and walking. The examination noted that there were no incapacitating episodes of intervertebral disc syndrome. There was no ankylosis of the thoracolumbar spine. Range of motion testing showed forward flexion to 90 degrees and extension from 0 to 15 degrees. There was no objective evidence of pain following repetitive motion testing. The Veteran had a VA examination in April 2013. The Veteran did not report flare-ups impacting the function of the lumbar spine. The examination noted forward flexion to 80 degrees and extension to 25 degrees, with no objective evidence of painful motion. There was no additional limitation of range of motion with repetitive use testing. The functional loss of the lumbar spine included less movement than normal. The examination indicated that radicular signs or symptoms were not present. There were no other neurological abnormalities (such as bowel or bladder problems or pathological reflexes). The examination indicated that the Veteran did not have IVDS. Accordingly, the examiner did not indicate whether there were incapacitating episodes of IVDS severe enough to require bedrest. The Veteran had a VA examination in August 2015. The Veteran reported that he had epidural injections, with limited relief. His other treatment included chiropractic therapy. He reported flare-ups, which caused difficulty with driving and grocery shopping. Functional loss of the lumbar spine included difficulty with lifting, bending, prolonged walking, and reaching. Range of motion testing showed flexion to 60 degrees and extension to 0 degrees. There was no additional loss of function with three repetitions. There was no ankylosis. The Veteran reported radicular pain. His radicular symptoms included numbness and pain that went intermittently to both feet. The examiner described the severity as moderate. There were no other neurological abnormalities identified. There were no incapacitating episodes of intervertebral disc syndrome. The Veteran had a VA examination in August 2020. The Veteran reported that he had had numerous injections for his back. He reported that his back pain caused significant reduction of his range of motion. He complained of flare-ups that were sometimes severe. The flare-ups were precipitated by activities such as excessive standing, prolonged sitting, prolonged driving, or sudden movements. An examination dated in August 2020 reflects that ankylosis of the spine was not present. The examination noted episodes of intervertebral disc syndrome requiring 6 weeks of bedrest in the past 12 months. This was based on the number of days that the Veteran reported that his back and leg pain were too severe for him to get out of bed. The examiner noted that this occurred about once a week on average. The examiner was unable to find a prescription for bedrest in the claims file. The Veteran reported that the functional loss of the lumbar spine included back and leg symptoms, which affected standing, sitting, driving, and walking. He was not able to bend forward and tie his shoes and could not lift things. He used a cane for standing and walking. Range of motion testing showed forward flexion to 35 degrees and extension to 10 degrees. There was no additional loss of range of motion with three repetitions. The examiner estimated that the range of motion with functional limitations was forward flexion to 20 degrees and extension to 5 degrees. The examiner indicated that the Veteran has essentially no movement of his lumbar spine with flare-ups. The examiner noted that the Veteran reported incapacitating episodes of intervertebral disc syndrome that require bedrest. The Veteran reported six weeks of bedrest in the last 12 months. The examiner was not able to substantiate the requirement of bedrest in the medical records. The Board finds that the criteria for a rating higher than 40 percent were not met prior to August 28, 2020. During that period, the Veteran did not have unfavorable ankylosis of the thoracolumbar spine. The evidence during the appeal does not support a finding of six weeks of physician prescribed bedrest per year. While self-imposed bedrest was reported in 2010, the duration of the bedrest was not described. The examinations in 2013 and 2015 indicated that no periods of bedrest were reported. However, the Veteran's choice to stay in bed due to pain is not sufficient to warrant a rating under provisions for incapacitating episodes. The regulation requires that the bedrest must be prescribed by a physician. The Board finds that a 50 percent rating is warranted from August 28, 2020. The August 2020 examination reflects findings that approximate unfavorable ankylosis based on the examiner’s opinion that the Veteran has essentially no movement of his lumbar spine during flare-ups. The Board notes that the Veteran is separately rated for radiculopathy of his lower extremities. The ratings for bilateral radiculopathy are not currently on appeal. The evidence does not show any other neurological impairments for which separate ratings are warranted. 2. Entitlement to special monthly pension based on the need for aid and attendance The Veteran contends that he needs aid and attendance due to his disabilities. At the Board hearing, he testified that he needs an attendant due to his risk of falls. The criteria for establishing the need for aid and attendance require that the appellant is: (1) blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352 (a). Determinations as to need for aid and assistance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the appellant to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability of the appellant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352 (a). Performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352 (c). VA must consider the enumerated factors under 38 C.F.R. § 3.352 (a); that eligibility requires at least one of the enumerated factors to be present; and that, because the regulation provides that the "particular personal function" which a veteran is unable to perform should be considered in connection with his condition as a whole, the "particular personal function" must be one of the enumerated factors. Turco v. Brown, 9 Vet. App. 222 (1996). The November 2009 VA examination of the lumbar spine indicates that the Veteran was unable to dress himself. The examination indicated that his back disability prevented him from cooking. He had meals delivered by Meals on Wheels five days per week. In June 2011, the Veteran reported that a family member assisted him with activities of daily living. An April 2012 VA examination for aid and attendance indicated that the Veteran was unable to prepare his own meals. He needed someone present in his home in case of falls. The Veteran was able to leave his home a few days a week, with assistance for driving and safety. The August 2020 lumbar spine examination noted that the Veteran was unable to dress himself. He reported that he had accidents because he was not able to get to the restroom in time. The examination noted that he had assistance three days a week. The Veteran reported that he was unable to cook for himself due to his back condition and could not do basic things for himself. He indicated that he was getting Meals on Wheels five days a week and was reliant on a friend to go shopping for him. The evidence establishes that the Veteran requires aid and assistance to protect himself from the hazards of the daily environment and to assist him with activities of daily living such as dressing. Accordingly, special monthly pension based upon the need for the regular aid and attendance of another person is warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Compensation for a left arm disability under 38 U.S.C. § 1151 The Veteran contends that he has a left arm disability which was caused by a pacemaker insertion procedure in October 2009. At the Board hearing, he testified that he has pain, limited range of motion, and tingling in his left arm. In a June 2011 statement, the Veteran asserted that he has limited range of motion and permanent nerve damage of his left arm. A Veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C. § 1701(3)(A), and the proximate cause of the disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (2) an event not reasonably foreseeable. 38 U.S.C. § 1151. To determine whether a Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination to the veteran's condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361 (b). The Veteran underwent a pacemaker insertion at a VA medical center in October 2009. VA treatment records reflect that the Veteran has reported various complaints about his left arm and shoulder after the pacemaker placement, including suspected frozen shoulder, discomfort at the pacemaker site, pain on the left side with activity, and extreme pain with movement of his left arm. See January 2010, February 2010, May 2010, and December 2010 VA treatment records. There are conflicting opinions as to whether there is an additional disability of his left upper extremity due to his October 2009 procedure that was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or an event that was not reasonably foreseeable. The Veteran had a VA examination in April 2013. The examiner opined that the pacemaker was not implanted in the incorrect position. The examiner concluded that the Veteran does not have a left shoulder disability due to the pacemaker procedure. A VA medical opinion was obtained in August 2020. The examiner opined that the evidence did not show that the pacemaker was in an improper position or that movement of the pacemaker occurred after the procedure in October 2009. The examiner noted that serial chest x-rays showed that the pacemaker did not change position in the weeks and months following the implant. The examiner stated that this points to another cause of the symptoms, that the pacemaker was slightly too high on the chest wall and that this contributed to the left shoulder and arm symptoms through irritation of the brachial plexus nerve roots. The examiner explained that the fact that he experienced fourth and fifth finger tingling points to irritation of those nerve roots as a consequence of the procedure – either from a direct mechanical irritation, the local anesthetic used to infiltrate the region, or when access through the left subclavian vein occurred. The examiner opined that, given these alternative possibilities, he could not say with certainty that the Veteran’s chronic pain at the implant site, left shoulder pain, and left arm symptoms are due to improper positioning of the pacemaker. In terms of the pacemaker implant, the examiner opined that he would be willing to reconsider the opinion if the evidence showed that it was implanted too close to the clavicle – in comparison to what is usually done in medical practice. However, the examiner opined that it is at least as likely as not that the current diagnoses of left ulnar neuropathy and left median neuropathy are the consequence of improper left arm positioning, due to the chronic pain that the Veteran has experienced at the pacemaker site since 2009. In a September 2020 addendum opinion, the examiner addressed whether the Veteran’s left upper extremity disability was the result of an event that was not reasonably foreseeable. The examiner reiterated that the evidence does not show that the pacemaker was improperly positioned. The examiner noted, however, that the evidence indicates that there was improper positioning of the left arm. The examiner opined that he could not rule out that the injury of the brachial plexus nerve was not foreseeable. The examiner opined that, given the deficiencies in the medical record with regard to the administration of local anesthetic, there is no way to determine if the local anesthetic infiltration was performed safely or according to standard methods of care, during the cardiac pacemaker placement. The examiner opined that the injury to the brachial plexus nerve would have been foreseeable if an excessive volume of anesthetic was administered or if the depth of the infiltration exceeded what was normally done during such a procedure. The examiner indicated that the procedure note did not record the volume of anesthetic used during the procedure, and the note did not describe the depth to which the local anesthetic was infiltrated into the tissues. The examiner opined that, given the deficiencies of the record with regard to the administration of the local anesthetic, there is no way to determine if the local anesthetic administration was performed safely or according to standards methods of care during the cardiac pacemaker placement in October 2009. The August 2020 and September 2020 medical opinions support a finding that the Veteran’s current left upper extremity disabilities are due either to lack of proper care or an injury of his brachial plexus nerve that was not a reasonably foreseeable consequence of the October 2009 pacemaker implant procedure. Accordingly, compensation under 38 U.S.C. § 1151 for left upper extremity ulnar neuropathy and median neuropathy is warranted. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.