Citation Nr: 21061995 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 13-07 270 DATE: October 6, 2021 ORDER Entitlement to a rating in excess of 10 percent for chest pains due to undiagnosed illness is denied. REMANDED Entitlement to a rating in excess of 20 percent for low back pain with mild disc bulge L4-5 is remanded. Entitlement to rating in excess of 10 percent prior to April 21, 2021, and in excess of 20 percent thereafter for residuals of injury to the cervical spine is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's sporadic complaints of chest pains are manifested by no worse than moderate impairment of the muscles of respiration; there is no functional loss due to muscle damage, no cardinal signs or symptoms of muscle disability, and no atrophy or impairment of function. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for chest pains due to undiagnosed illness have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.56, 4.73, Diagnostic Code 5321 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty October 1988 to February 1988 and from May 1989 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA). In March 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The matter was most recently before the Board in April 2021 and remanded for further development. In May 2021, the RO awarded an increased 20 percent evaluation for cervical spine disability effective April 21, 2021. This rating is not the maximum schedular rating. Thus, his claim remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Entitlement to a rating in excess of 10 percent for chest pains due to undiagnosed illness Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration will be given to the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's service-connected chest pains due to undiagnosed illness are currently rated 10 percent disabling. The Veteran generally contends that he is entitled to a higher rating because his symptoms are more severe than currently contemplated by his rating as he has been experiencing monthly episodes of severe chest pain that sometimes last a week. The Veteran's chest pains are rated under Diagnostic Code 5321, which contemplates injuries to muscle group XXI, the muscles of respiration of the thoracic muscle group. Under Diagnostic Code 5321, a 10 percent rating is warranted for a moderate injury. A maximum 20 percent rating is warranted for a moderately severe or severe injury. 38 C.F.R. § 4.73, Diagnostic Code 5321. Factors for consideration in the rating of muscle disabilities are set forth in 38 C.F.R. § 4.56. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56 (c). The Veteran's disability is currently rated 10 percent, which contemplates a moderate injury. Evaluation of muscle injuries as slight, moderate, moderately severe, or severe, is based on the type of injury, the history and complaints of the injury, and objective findings. 38 C.F.R. § 4.56 (d). "Moderate" muscle disability contemplates a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service department record or other evidence of in-service treatment for the wound; and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, there are entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. §§ 4.56 (d)(2). Thus, to warrant a rating in excess of 10 percent for chest pains, the Veteran would have to be found to have a disability analogous to a severe or moderately severe injury to the muscles of respiration of the thoracic muscle group, as described above. Turning to the evidence of record, the Veteran underwent a VA examination of his muscle injury in January 2010. Upon examination, the examiner noted the Veteran reported an episode of chest pain in July 2009. A treadmill test in December 2009 showed an ejection fraction of 53% and probable reversible ischemia in the anterior and anterolateral wall of the left ventricle. The results were called equivocal and there was some mention of the possibility of artifact. Muscle examination revealed no muscle atrophy and there was normal muscle tone. Strength was 4/5 in both upper and lower extremities. On VA examination in November 2016, the Veteran reported intermittent chest pains on the left side. There was no penetrating or nonpenetrating muscle injuries. There was no injury to a muscle group of the shoulder girdle or arm, forearm or hand, foot or leg, pelvic girdle or thigh, or torso and/or neck. The Veteran did not history of rupture of the diaphragm with herniation, extensive muscle hernia, or injury to the facial muscle. There were no associated scars, fascial defects, or injury affecting muscle substance or function. There were no cardinal signs or symptoms of muscle disability. Muscle strength testing was normal. There was no x-ray evidence of retained metallic fragments. The muscle injury did not impact his ability to work. On VA examination in November 2019, the examiner noted the Veteran reported mild chest pains less than five minutes duration three to four times a week. The examiner indicated the Veteran did not have a penetrating or non-penetrating muscle injury. There was no history of traumatic event. There was no injury to a muscle group of the shoulder girdle or arm, forearm or hand, foot or leg, pelvic girdle or thigh. The examiner indicated there was an injury to a muscle group in the torso and/or neck, group XXI, muscles of respiration, thoracic muscle group, left side. The Veteran did not have history of rupture of the diaphragm with herniation, extensive muscle hernia, or injury to the facial muscle. There were no associated scars, fascial defects, or injury affecting muscle substance or function. There were no cardinal signs or symptoms of muscle disability. Muscle strength testing was normal. There was no x-ray evidence of retained metallic fragments. The muscle injury did not impact his ability to work. VA treatment records dated in February 2010 indicate the Veteran went to the emergency room with complaints of chest pain. The pain did not radiate. Chest x-rays were negative for cardiopulmonary process. In February 2011, the Veteran denied any complaints of any recent chest pain. The Veteran had a history of being admitted for chest discomfort of two days duration in January 2013. The Veteran indicated that it was not severe. The exam was unremarkable. X-rays dated in January 2013 showed no evidence of acute cardiopulmonary process. The Board noes that pains were reported after using a shake weight in April 2014. In May 2014 and December 2016, the Veteran specifically denied chest pains. In September 2019, the provider noted the Veteran presented with chest pains in July 2019 and a left lung nodule was discovered. In November 2019, the Veteran reported chest pain after a fall two weeks prior but denied any current complaints. In December 2019, there were no suspicious lung nodules and given the remote history of tobacco no further computerized tomography was required. Chest pains were associated with a cough in January 2020. He denied chest pains in October 2020. After a careful review of the pertinent evidence, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's chest pain at any time during the appellate period under Diagnostic Code 5321. In this regard, the evidence demonstrates that the Veteran's symptoms are no greater than moderate. The examiners repeatedly found the muscle injury to be non-penetrating, with no effect on muscle substance or function. There were no cardinal signs or symptoms of muscle disability, such as loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. Muscle strength was found to be normal, and no scars were noted. Moreover, the Board notes that VA treatment records contain only sporadic treatment for complaints of chest pain from 2009 to the present and on occasion the complaints were associated with injury or strain from a fall and lifting. The treatment records do not contain complaints of severe chest pain as described by the Veteran in statements and testimony. As such, based on the above, the Board finds that the Veteran's chest pains most nearly approximates the currently assigned 10 percent rating for a "moderate" muscle disability under the criteria of Diagnostic Code 5321. To the extent that, by filing his claim for an increased rating, the Veteran believes his symptoms to be more severe than contemplated by the currently-assigned 10 percent disability rating, the Board notes that the Veteran is competent to report on factual matters of which he first-hand knowledge, such as experiencing an increased level of pain. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, he is not competent to report that his disability is of sufficient severity to warrant a higher rating under the rating schedule, as such an opinion requires specialized medical expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board must rely on the medical evidence of record to assign the appropriate disability rating, and therefore, accords the objective medical findings greater weight than any subjective complaints of increased symptomatology. Accordingly, the Board finds that the preponderance of the evidence is against finding that a rating in excess of 10 percent for chest pains due to undiagnosed illness is warranted. Thus, the benefit-of-the-doubt rule does not apply, and the Veteran's claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND Entitlement to increased ratings for low back and cervical spine disabilities; Entitlement to TDIU The Board most recently remanded the claims in April 2019 primarily for new examinations to comply with the United States Court of Appeals for Veterans Claims (CAVC) decision in Correia v. Mcdonald, 28 Vet. App. 158 (2016). As a result, the Veteran was examined by VA in November 2019 (lumbar spine) and May 2021 (cervical spine). The RO failed to review the VA examiner's report to ensure compliance with the Board's remand directives; and, if necessary, take corrective action regarding any deficiencies prior to readjudicating the claims and returning the matter to the Board, if otherwise in order. Stegall v. West, 11 Vet. App. 268 (1998). The Board is cognizant that the Veteran's claims have been pending since 2009. Unfortunately, in the interest of concluding this case with a fair and just decision for the Veteran, the claim must be remanded once again in order to attempt to obtain the necessary medical information. Specifically, and for the same reasons as before, it is noted that the most recently obtained VA examinations of November 2019 and May 2021 are also not in full compliance with Correia, supra. In addition, the Board notes the examinations are not in compliance with the recent CAVC decision issued in Chavis v. McDonough, No. 18-2928 (April 16, 2021), regarding the criteria for a rating based on ankylosis of the spine. In this matter, the Board has still not been provided with the information necessary to enable the proper assessment of the lumbar and cervical spine disabilities. As already stated in the previous remand decisions, examinations for joints disabilities generally must include range of motion (ROM) measurements. Correia, supra, at 158, 169. In conducting these measurements, the examiner should note not only whether pain on motion is present, but if so, where in the ROM the pain sets in and whether that pain causes functional loss. Id;(emphasis added). The Board has reviewed the November 2019 examination report. In pertinent part, lumbar spine was noted pain on initial active range of motion testing causing functional loss. Passive range of motion was not conducted. The examiner did not specify at which point pain began during range of motion testing as directed nor did the examiner indicate whether there was evidence of pain with non weight bearing. (Emphasis added.) The May 2021 VA examiner indicated there was pain on active and passive range of motion testing and pain on nonweight-bearing that caused functional loss, but the examiner also did not specify at which point pain began during range of motion testing as directed. While both examiners indicated that there was no ankylosis of the lumbar or cervical spine, they did not address whether the Veteran demonstrated functional loss consistent with that contemplated by ankylosis. Finally, the examiners both noted the Veteran had intervertebral disc syndrome (IVDS). The November 2019 VA examiner indicated that imaging studies were available of the lumbar spine; however, a copy was not included. The May 2021 VA examiner stated there were no imaging studies performed of the cervical spine. The Board is unable to determine whether there is IVDS shown by disc herniation with compression and/or irritation of the adjacent nerve root on imaging studies as required by the new regulations effective February 7, 2021. Accordingly, the examination findings are not adequate for a contemporaneous rating since the Board cannot properly assess functional impairment which is done with consideration of pain. The examinations are also inadequate to determine whether the Veteran's lumbar or cervical spine disabilities may be entitled to a higher evaluation for ankylosis, or the functional equivalent thereof, due to the inability to perform normal working movements of the body, including as due to pain, or for IVDS. Thus, further examination is necessary. 38 C.F.R. § 3.159 (c)(4). Much of the legal discussion which follows is being provided as an attempt to explain what the law requires and what exactly is needed to address the Veteran's claims. It is provided in detail to aid the next VA examiner in addressing the remand directives. In Correia, supra, the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain ROM testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the ROM testing described in the final sentence of § 4.59. Correia, 28 Vet. App. at 169-170. The Correia opinion continues with analysis of the proper interpretation of § 4.59. This part of the Court's analysis indicates that the regulation should be read together with 38 C.F.R. §§ 4.40 and 4.45. The Court explained that: [§ 4.40] states that it "is essential" that an examination on which a disability rating is based "adequately portray the anatomical damage and the functional loss" that occurs as a result of those elements. Section 4.45 explains that "the factors of [joint] disability reside in reductions of their normal excursion of movements in different planes." Neither of those regulations, however, explains how that information should be obtained, except that § 4.40 refers to "an examination," but the Secretary has answered this question in § 4.59. Correia, 28 Vet. App. at 169 (internal short form citations, explanatory parenthetical, and emphasis in original omitted). If § 4.59 was intended to accomplish the purposes of § 4.40 and § 4.45, one of which is to assess "reductions of [the] normal excursion of movements [of the joint] in different planes," the most reasonable reading of § 4.59 requires the examiner to provide detailed range of motion test results, not merely an indication of whether or not pain was present. The final sentence the Court's regulatory interpretation analysis supports this conclusion: "Consequently, we are left with the inescapable conclusion that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the ROM testing described in the final sentence of § 4.59." Id. at 169-70. In Chavis, the CAVC found that when evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosisi.e., functional loss consistent with that contemplated by ankylosis. See also 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40, 4.45 are for application when evaluating joint disabilities and their manifestations, which may include ankylosis. These sections direct adjudicators to determine whether the joint demonstrates less movement than normal and ankylosis is specifically identified among the possible causes of less movement. Moreover, § 4.40 provides that "functional loss may be due to...pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion." Accordingly, the CAVC in Chavis found that the application of 38 C.F.R. §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis or if it is the functional equivalent of ankylosis. In the matter before the Board, it is the Veteran's primary assertion that his lumbar and cervical spine disabilities warrant higher ratings then currently assigned throughout the appeal period. The November 2019 and May 2021 VA examination reports reflects complaints of lumbar and cervical spine pain on range of motion testing, but the point at which the Veteran's pain began was not provided. In the absence of any indication of the portion of the extent of the ROM affected by pain, or the degree of limitation due to pain, from testing that was directly conducted/observed by the VA examiner, prevents the Board from making a meaningfully informed determination as to the severity of the functional loss and/or equivalent associated with the lumbar and cervical spine disabilities. Primarily, the Board finds it necessary to obtain clinical findings showing at what point (in degrees) the Veteran's complaints of pain begin not just the endpoints of motion. The Board finds that clearer and more adequate descriptions of functional loss due to pain on motion testing and if no such functional loss, an explanation as to why pain does not contribute, and addressing whether there is the functional equivalent of ankylosis, would be important to informed appellate review. The Board finds that new examinations are warranted to support adequately informed appellate review and to comply with the decisions Correia and Chavis and the new regulations effective February 7, 2021, for disabilities of the spine. Finally, because a decision on the remanded issues of increased rating of the lumbar and cervical spine disabilities could significantly impact a decision on the issue of TDIU, they are inextricably intertwined and a remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the current level of severity of the lumbar and cervical spine disabilities on appeal. A copy of this remand, the claims folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. a) The examiner is asked specifically to provide range of motion testing (ROM) for the lumbar and cervical spine for active motion, passive motion, in both weight-bearing, and nonweight-bearing. b) In addition, the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (i) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use; and, identify at the point where pain starts not just the endpoints of motion. (ii) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM, to include noting the exact point at which pain starts. (iii) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. c) In addition, the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (i) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (ii) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ROM testing, if pain is noted, the EXACT point at which pain is first noted must be specified. (d) The examiner must review the claims file and elicit information regarding the severity, frequency, and duration of all symptoms during flare-ups and repeated use over time, and the degree of functional loss during flare-ups and/or repeated used over time. If possible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran unless deemed to lack credibility or be inconsistent with other evidence such as test results. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. (e) The examiner should also comment on whether there is any form of ankylosis or the functional equivalent thereof, due to the inability to perform normal working movements of the body, including as due to pain. (f) The examiner should identify all neurological manifestations of the disability. (g) In addition, the examiner should state the total duration of incapacitating episodes of intervertebral disc syndrome over the past 12 months. h) Any findings from diagnostic/imaging studies must be included in the examination report. Please specifically indicate whether there is intervertebral disc syndrome shown by disc herniation with compression and/or irritation of the adjacent nerve root on imaging studies. 2. The RO must review the VA examiner's report(s) to ensure compliance with each of the Board's remand directives; and, if necessary, take corrective action regarding any deficiencies prior to readjudicating the claims and returning the matter to the Board, if otherwise in order. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. L. Wallin, 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.