Citation Nr: 21061591 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 14-26 166 DATE: October 4, 2021 ORDER Entitlement to a rating for lumbosacral strain degenerative arthritis of the spine with intervertebral disc syndrome greater than 20 percent prior to January 16, 2021 and greater than 40 percent thereafter is denied. REMANDED Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine, to include as secondary to service-connected lumbosacral strain is remanded. Entitlement to service connection for right ankle tenosynovitis, to include as secondary to service-connected lumbosacral strain is remanded. Entitlement to service connection for left ankle tenosynovitis, to include as secondary to service-connected lumbosacral strain is remanded. Entitlement to service connection for right knee patellofemoral syndrome, to include as secondary to service-connected lumbosacral strain is remanded. Entitlement to service connection for left knee patellofemoral syndrome, to include as secondary to service-connected lumbosacral strain is remanded. Entitlement to service connection for a right hip condition, to include as secondary to service-connected lumbosacral strain is remanded. Entitlement to service connection for a left hip condition, to include as secondary to service-connected lumbosacral strain is remanded. Entitlement to service connection for right shoulder impingement syndrome, to include as secondary to the cervical spine DDD is remanded. Entitlement to service connection for left shoulder impingement syndrome, to include as secondary to the cervical spine DDD is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to December 19, 2019 is remanded. FINDINGS OF FACT 1. Prior to January 16, 2021, the Veteran's lumbosacral strain degenerative arthritis of the spine with intervertebral disc syndrome caused limitation of forward flexion to no less than 40 degrees. 2. As of January 16, 2021, the Veteran's lumbosacral strain degenerative arthritis of the spine with intervertebral disc syndrome caused limitation of forward flexion during a flare-up to 30 degrees but no ankylosis. CONCLUSION OF LAW The criteria for entitlement to a rating for lumbosacral strain degenerative arthritis of the spine with intervertebral disc syndrome greater than 20 percent prior to January 16, 2021 and greater than 40 percent thereafter have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSION These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which continued a 20 percent disability rating for the lumbosacral strain, and denied service connection for disabilities of the cervical spine and bilateral ankles, knees, hips, and shoulders. In a March 2021 rating decision, the RO granted a 40 percent rating for lumbosacral strain effective January 16, 2021. The increased rating constitutes a partial grant of benefits, such that the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). In May 2017, the Veteran testified at a Board hearing before the undersigned at the RO, and a transcript of that hearing is of record. In March 2018 and again in November 2020, the Board remanded the Veteran's claim for additional development. The claim has since been returned to the Board for further appellate action. Although the Board regrets the additional delay, a remand is again needed as to the Veteran's claim for entitlement to service connection for the cervical spine and bilateral ankles, knees, hips, and shoulders and entitlement to TDIU prior to December 19, 2019 to further develop the record and afford the Veteran every possible consideration. 1. Entitlement to a rating for lumbosacral strain degenerative arthritis of the spine with intervertebral disc syndrome greater than 20 percent prior to January 16, 2021 and greater than 40 percent thereafter The Veteran contends that he is entitled to a higher rating for his back disability. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that 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 regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's lumbosacral strain degenerative arthritis of the spine with intervertebral disc syndrome is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal 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. 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. 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). During the pendency of the appeal, the rating criteria evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (November 30, 2020). However, the Veteran's lumbar spine disability is rated under the General Formula for Disease and Injuries of the Spine, which did not change. The Board observes that Diagnostic 5243 for intervertebral disc syndrome was revised to only apply when there is disc herniation with compression and/or irritation of the adjacent nerve root. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent prior to January 16, 2021. On VA examination in January 2010 range of motion testing showed the Veteran to have forward flexion to 90 degrees with pain at the endpoint. He had no additional loss on repetition testing but did complain of increased pain. At his May 2019 Board hearing, the Veteran reported he is only able to bend down a quarter, not enough to reach his shoes. He reported that after his January 2010 VA examination he was very sore and stiff and basically laid in bed for three days. He reported he has flare-ups of pain every day. Range of motion testing done on VA examination in October 2019 showed the Veteran to have flexion to 40 degrees, extension to 10 degrees, and right and left lateral flexion and rotation to 15 degrees. He had pain on all movements, pain with rest, and pain with weight bearing. He did not perform repetitive-use testing due to fear of pain. The examiner stated that additional loss after repetitive use and during a flare-up could not be estimated. The Veteran was noted to have muscle spasm and guarding resulting in abnormal gait or spinal contour. The Veteran underwent another VA examination later in October 2019. At that examination range of motion testing showed flexion to 45 degrees, extension and left lateral flexion to 10 degrees, right lateral flexion to 15 degrees, and right and left lateral rotation to 30 degrees. He had pain on motion and with weight bearing. He was noted to have difficulty with pending, lifting, posture, and mobility. Repetitive use testing did not show additional loss of function or range of motion. The examiner indicated that pain, fatigue, and lack of endurance would limit functional ability with repeated use over time and pain and fatigue would cause limitation during a flare-up but the limitations could not be described in terms of range of motion. The Veteran was noted to have muscle spasm and guarding resulting in abnormal gait or spinal contour. There is no other range of motion testing of record for the period prior to January 16, 2021. A 40 percent rating requires forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Range of motion testing done on VA examination in 2010 and 2019 indicate that the Veteran had flexion to at least 40 degrees. The Board acknowledges the Veteran's lay reports of symptoms and that he has functional loss due to pain, including during flare-ups and with repetitive use over time and excess fatigability. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements does not result in 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. Thus, based on the forgoing, the Board finds that a preponderance of the evidence is against a rating in excess of 20 percent prior to January 16, 2021. The Board further finds that a rating in excess of 40 percent is not warranted as of January 16, 2021. January 16, 2021 is the date on which the Veteran underwent his most recent VA examination of his back. Range of motion testing showed flexion to 50 degrees, extension and right and left lateral flexion to 10 degrees, and right and left lateral rotation to 25 degrees. Pain was noted on examination and wight weight bearing. On repetitive use testing, forward flexion was additionally limited to 40 degrees. The examiner indicated that repeated use over time would also result in forward flexion limited to 40 degrees as well as right and left lateral rotation limited to 20 degrees. During a flare-up, the examiner indicated that the Veteran's forward flexion would be limited to 30 degrees. Under the rating criteria, a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Range of motion testing in January 2021 reflects that the Veteran does not have ankylosis of his entire thoracolumbar spine nor has he claimed such limitation. Thus, based on the forgoing, the Board finds that a preponderance of the evidence is against a rating in excess of 40 percent as of January 16, 2021. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes Regarding neurological impairment, the Veteran has already been granted service connection for right and left lower extremity radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for lumbosacral strain degenerative arthritis of the spine with intervertebral disc syndrome prior to January 16, 2021 and greater than 40 percent thereafter. In denying such a 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. REASONS FOR REMAND 1. Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine, to include as secondary to service-connected lumbosacral strain is remanded. In January 2021, a VA opinion was obtained as to whether it is at least as likely as not that the Veteran's cervical spine disability incurred in or was caused by the Veteran's service. Unfortunately, the medical opinion report is inadequate. The VA examiner checked both the box that the condition was at least as likely as not incurred in or caused by service as well as the box that the condition was less likely than not incurred in or caused by service. The rationale states, in part, "It is opinioned that the currently diagnosed Degenerative Disc Disease of the Cervical Spine, Spinal stenosis, cervical radiculopathy would be at least as likely as not to a service related Cervical Spine Injury which incurred during service. Records reviewed did not reveal documentation of a cervical spine injury. Many notation of the lumbar strain." The Board finds that clarification of the inconsistencies in the opinion or a new opinion is needed. 2. Entitlement to service connection for right ankle tenosynovitis, to include as secondary to service-connected lumbosacral strain is remanded. 3. Entitlement to service connection for left ankle tenosynovitis, to include as secondary to service-connected lumbosacral strain is remanded. 4. Entitlement to service connection for right knee patellofemoral syndrome, to include as secondary to service-connected lumbosacral strain is remanded. 5. Entitlement to service connection for left knee patellofemoral syndrome, to include as secondary to service-connected lumbosacral strain is remanded. 6. Entitlement to service connection for a right hip condition, to include as secondary to service-connected lumbosacral strain is remanded. 7. Entitlement to service connection for a left hip condition, to include as secondary to service-connected lumbosacral strain is remanded. 8. Entitlement to service connection for right shoulder impingement syndrome, to include as secondary to the cervical spine DDD is remanded. 9. Entitlement to service connection for left shoulder impingement syndrome, to include as secondary to the cervical spine DDD is remanded. In November 2020, the Board remanded the Veteran's claim for a new VA opinion. The Board specifically ordered that an opinion be obtained as to whether it is at least as likely as not that the Veteran's service-connected back disability caused or aggravated his ankle, shoulder, hip, or knee disabilities. Specifically, the Board stated that the examiner must address whether the Veteran's service-connected back disability has caused him to overcompensate and alter his gait resulting in or aggravating his claimed ankle, shoulder, hip, or knee disabilities. Also, the examiner was to address whether medication prescribed for the Veteran's service-connected back disability and/or depression caused or aggravated the conditions, specifically due to falls as a medication side-effect. The VA examiner opined that the Veteran's service-connected back disability did not cause or aggravate any of his claimed disabilities. However, the Board finds that the rationale is in adequate. The examiner did not discuss the possibility of overcompensation or alteration of gait. The rationale appears to focus only on the manifestations of the Veteran's back disability during service. The Board notes that the propriety of service connection for lumbosacral strain degenerative arthritis of the spine with intervertebral disc syndrome is not at issue. The Veteran is already service connected for the back disability. The current issue is whether that service-connected back disability caused or aggravated any of the Veteran's currently claimed conditions, specifically his cervical spine, ankle, shoulder, hip, and knee disabilities. Further, no opinion was offered as to whether the Veteran's cervical spine, ankle, shoulder, hip, and knee disabilities are proximately due to medication prescribed to treat his service-connected back disability and/or service-connected major depressive disorder, to include Depakote. The examiner stated only: "It is out of my scope to believe the Veteran was not apprised of the side effects of Depakote which is used for lumbosacral strain and/or major depression." The Board notes that the Veteran's awareness of medication side effects is not dispositive as to the issue of whether side effects of medication prescribed for his service-connected disabilities caused or aggravated his cervical spine, ankle, shoulder, hip, and knee disabilities. The Board notes that the Veteran's specific contention is that prescribed medication, including Depakote, had side effects resulting in his falling and causing other injury. In October 2019, another VA examiner noted that Veteran had taken Depakote in 2011 and 2012 and sedation was documented as a side effect. Based on the forgoing, the Board finds that a new VA opinion must be obtained. 10. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU)prior to December 19, 2019 is remanded. As the claim of entitlement to TDIU prior to December 19, 2019 is inextricably intertwined with the issues of entitlement to service connection remanded above as the outcomes of those claims may affect his eligibility for TDIU. Therefore, the Board finds that the claims should be considered together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Arrange for a VA opinion with respect to the Veteran's claim for service connection for cervical spine, shoulder, hip, knee, and ankle disabilities. A new examination is not required unless the VA reviewer opines one is necessary. The VA reviewer/examiner should opine as to the following and offer a full rationale for all opinions offered: (a.) Whether it is at least as likely as not that the Veteran's current cervical spine disability onset in or was caused by his service. The examiner should consider the Veteran's testimony of falling in service. (b.) Whether it at least as likely as not that the Veteran's current cervical spine, shoulder, hip, knee, and/or ankle disabilities were caused or aggravated by the Veteran's service-connected lumbosacral strain degenerative arthritis of the spine with intervertebral disc syndrome or major depressive disorder. The following theories of entitlement should be addressed for each claimed disability: a. Whether the Veteran's service-connected back disability has caused him to overcompensate and altered his gait causing or aggravating his current cervical spine, shoulder, hip, knee, and/or ankle disabilities. b. Whether medication prescribed for the Veteran's service-connected back or depression disabilities, including Depakote, caused or aggravated his current cervical spine, shoulder, hip, knee, and/or ankle disabilities. The examiner should consider the testimony of the Veteran's spouse that the Veteran has fallen multiple times as a side-effect of medication and the statement by the October 2019 VA examiner that the Veteran had taken Depakote in 2011 and 2012 and sedation was documented as a side effect. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.