Citation Nr: 21064130 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 19-08 787 DATE: October 19, 2021 ORDER Entitlement to service connection for degenerative joint disease of the lumbar spine, claimed as a lumbar spine injury, is granted. Entitlement to service connection for scoliosis is denied. Entitlement to service connection for radiculopathy of the bilateral lower extremities, as secondary to degenerative joint disease of the lumbar spine, is granted. Entitlement to an initial rating of 40 percent, but no higher, for complex regional pain syndrome (right upper extremity) is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran's degenerative joint disease of the lumbar spine is causally or etiologically due to his time in service. 2. The Veteran's scoliosis clearly and unmistakably pre-existed service and was not aggravated as a result of service. 3. The Veteran's radiculopathy of the bilateral lower extremities is proximately due to his service-connected degenerative joint disease of the lumbar spine. 4. For the entire period on appeal, the Veteran's complex regional pain syndrome is manifested by symptoms that more nearly approximate a moderate severity; it does not more nearly approximate severe incomplete paralysis or complete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative joint disease of the lumbar spine are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for scoliosis are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for radiculopathy of the bilateral lower extremities, as secondary to degenerative joint disease of the lumbar spine, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for an initial disability rating of 40 percent, but no higher, for complex regional pain syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1992 to September 1992, December 1995 to June 1996 and October 2001 to September 2002. He also had additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, the Board remanded these claims for additional development. That development having been completed the claims are now ready for appellate review. Of note, also in the April 2020 decision, the Board granted entitlement to an initial rating of 50 percent, but no higher, for posttraumatic stress disorder (PTSD), and denied the claims for an increased rating for headaches and earlier effective dates for the grant of service connection for headaches, PTSD, and complex regional pain syndrome. The Veteran appealed the April 2020 Board decision to the Court of Appeals for Veterans Claims (Court). In February 2021, the Court granted a Joint Motion for Remand, vacating the portion of the April 2020 Board decision denying entitlement to a rating higher than 30 percent for headaches, a rating higher than 50 percent for PTSD, and earlier effective dates for the grant of service connection for headaches, PTSD, and complex regional pain syndrome. In August 2021, the Board granted an earlier effective date for the grant of service connection for complex regional pain syndrome, PTSD, and headaches. The issues of entitlement to increased ratings for headaches and PTSD were remanded. These issues are currently in remand status and will be adjudicated in a subsequent Board decision. In an August 2021 Board decision, the Veteran was granted an earlier effective date of September 24, 2002 for the grant of a total disability rating based on individual unemployability (TDIU). As such, the Veteran is currently in receipt of a TDIU for the entire period on appeal. Service Connection 1. Entitlement to service connection for a lumbar spine disability, to include scoliosis and degenerative joint disease. The Veteran seeks entitlement to service connection for a lumbar spine disability. He asserts that an injury during service caused his current disorder, or in the alternative, that his lumbar spine disorder is secondary to his service-connected degenerative arthritis of the cervical spine. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the pre-existing condition is noted upon entry into service, and those cases in which the pre-existence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1111 (presumption of sound condition). In a case where there is no pre-existing condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition pre-existed service and (b) the pre-existing condition was not aggravated by service. Wagner, 370 F3d. at 1345; Horn, 25 Vet. App. at 234; 38 U.S.C. § 1111. To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of such condition. See id. at 240 (holding that "asthma" was not noted where, although the Veteran checked a box indicating that he had a history of the disease, a clinical evaluation detected no abnormalities of the lungs). However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (holding that "bunions" were noted at induction examination where orthopedic examiner diagnosed "bunions," despite also stating "no problem [with] feet."). First, the Board notes the Veteran has current diagnoses of several lumbar spine disorders, including scoliosis and degenerative arthritis of the lumbar spine. See August 2021 VA examination. As such, Shedden element (1), current diagnosis, is met. A March 1989 service treatment note indicates the Veteran had asymptomatic scoliosis with unlimited activities. X-rays demonstrated scoliosis of the thoracolumbar spine. Of note, the Veteran's entrance examination for his first period of active duty in July 1992 does not appear to be of record. When an entrance examination has been conducted and is unavailable, the veteran is presumed sound. Quirin v. Shinseki, 22 Vet. App. 390 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a Veteran's entrance examination has been lost or destroyed while in VA custody)). An August 1992 Medical Board report notes the Veteran complained of low back pain and midthoracic pain since entry into service in July 1992. It was noted that the Veteran had a significant history of scoliosis that existed prior to service. Current x-rays demonstrated scoliosis and he was found unfit for service. A temporary profile was issued until separation. The April 1995 enlistment physical examination did not note any lumbar spine abnormalities. A July 2002 service record indicates the Veteran complained of "back, neck, and bilateral shoulder pain" after moving furniture at the law enforcement command. A statement of medical examination and duty status was completed in September 2002 and the injury was determined to be incurred in the line of duty. As such, the Board finds that Shedden element (2) has been satisfied. Regarding element (3), nexus, the Board finds the evidence is at least in equipoise that the Veteran has a current lumbar spine disability that is due to his injury in service. In August 2002, shortly after the documented in-service injury that occurred in July 2002, the Veteran complained of continuing back pain. It was noted that the Veteran was experiencing extreme low back pain. Examination revealed diffuse pain throughout the cervical, thoracic, and lumbar region. X-rays were normal. The physician provided a report to the Veteran's employer, noting that the day of injury was July 2002, and he was diagnosed with a suspected herniated disc in his lumbar spine. In September 2002, the Veteran complained that his lumbar pain had increased, and he was experiencing leg cramps and radicular symptoms. An x-ray indicated that at the time, his lumbar spine was normal with no degenerative joint disease, but he did have scoliosis. A VA medical opinion was obtained in August 2021. The examiner opined that although the Veteran's scoliosis pre-existed service and scoliosis does not cause degenerative arthritis, his current degenerative arthritis in the lumbar spine was not pre-existing and is likely due to his back injury and complaints during service. The Board also notes that as a result of the July 2002 injury discussed above, the Veteran was granted service connection in January 2004 for a post-service cervical spine disability. Importantly, many of the negative VA medical opinions of record discuss whether the Veteran's current disorder is secondary to his service-connected cervical spine disability. For example, the November 2020 VA opinion states that the Veteran's current symptoms are most consistent with the typical natural progression of lumbar degenerative disc disease rather than a back condition aggravated by his cervical spine disability or complex regional pain syndrome. Also of note, a June 2020 VA opinion stated the Veteran's degenerative joint disease was less likely than not due to service as the magnetic resonance image during service in 2002 showed no diagnosis or pathology other than scoliosis; however, the law does not require evidence of an in-service diagnosis; rather, there need only be a basis for attributing the current disorder to an injury in service. As such, based on the August 2021 VA medical opinion and resolving all reasonable doubt in his favor, the Board finds that the Veteran's degenerative arthritis of the lumbar spine is due to his documented in-service injury in July 2002. The evidence, however, indicates that the Veteran's diagnosed scoliosis pre-existed service and was not aggravated therein. As noted in a June 2020 VA examination, a 1989 x-ray demonstrated scoliosis, prior to service, and the examiner opined that there was no evidence that the Veteran's scoliosis was aggravated during service as medical evidence indicates it continues to be of a mild nature. Additionally, as noted, an August 2021 VA opinion also opined that the Veteran's scoliosis clearly pre-existed service, as noted on a 1989 x-ray, but was not aggravated in service. The examiner noted that x-rays continue to demonstrate "slight" scoliosis. In conclusion, the evidence indicates the Veteran's scoliosis pre-existed service and was not aggravated therein; however, his degenerative joint disease of the lumbar spine is causally or etiologically due to his in-service injury. Service connection for scoliosis is denied. Service connection for degenerative joint disease of the lumbar spine is granted. 2. Entitlement to service connection for radiculopathy of the bilateral lower extremities. The Veteran seeks entitlement to service connection for radiculopathy of the bilateral lower extremities. As service connection for radiculopathy of the bilateral lower extremities is being granted on a secondary basis based on causation, there is no need to discuss entitlement to service connection on a direct basis or any other basis. Service connection may be granted on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to service connection on a secondary basis, there must be evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. Here, the Veteran has a current diagnosis of radiculopathy of the bilateral lower extremities. See April 2021 VA examination. As such, element (1) set forth under Allen, current disability, has been satisfied. Next, the Board notes that as a result of this decision, the Veteran has been granted entitlement to service connection for degenerative joint disease of the lumbar spine. The Board finds that the preponderance of evidence indicates the Veteran's radiculopathy of the bilateral lower extremities is proximately due to his degenerative joint disease of the lumbar spine. In an April 2021 opinion, the VA examiner opined that the Veteran's bilateral radiculopathy is at least as likely as not due to his lumbar spine arthritis. The examiner explained that lumbar radiculopathy is caused by impingement of a spinal nerve root and the most common cause of compression is a disc herniation and/or degenerative changes in the spine. An additional VA opinion was obtained in August 2021. The VA examiner opined that the Veteran's radiculopathy of the bilateral lower extremities is proximately due to his degenerative arthritis of the spine. The examiner explained that the degenerative arthritis of the spine irritates the nerves. The Board finds no adequate basis to reject the favorable evidence of record, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that element (2) under Allen, nexus, has been satisfied. The appeal for entitlement to service connection for radiculopathy of the bilateral lower extremities is granted, on a secondary basis. Increased Rating 3. Entitlement to an initial rating higher than 20 percent for complex regional pain syndrome, prior to July 23, 2020, and to a rating higher than 40 percent, thereafter. Service connection for complex regional pain syndrome, also diagnosed as cervical radiculopathy of the right lower radicular group, was granted in a December 2017 rating decision, at which time a 20 percent rating was assigned, effective July 11, 2017. A notice of disagreement with the effective date of service connection and the rating assigned was received in December 2018. In an August 2021 Board decision, an earlier effective date of September 24, 2002 for the grant of service connection was awarded. An August 2021 rating decision implemented the Board's decision, awarding a 20 percent rating, effective September 24, 2002, and a 40 percent rating, from July 23, 2020. Disability evaluations are determined by application of criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 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. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), is required. See Fenderson, 12 Vet. App. at 126. The Veteran is rated under Diagnostic Code 8512. He is right hand dominant. See, e.g., August 2017 VA examination. Paralysis of the lower radicular group is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8512. Under these criteria, mild incomplete paralysis is rated as 20 percent disabling for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. Complete paralysis, affecting all intrinsic muscles of the hand, and some or all of flexors of the wrist and fingers, paralyzed, substantial use of the hand, is rated as 70 percent for the major extremity and 60 percent for the minor extremity. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The Board finds the Veteran is entitled to a 40 percent rating, but no higher, for the entire period on appeal. Medical evidence indicates that the Veteran's complex regional pain syndrome is not wholly sensory and has been manifested by more than sensory symptoms throughout the appeal period. For example, as early as October 2002, treatment records indicate the Veteran had impairment of motor function in the right hand, including decreased grip strength. See October 2002 treatment note. Also noted was pain and sensory disturbance in the form of numbness. A November 2002 letter from a private physician noted decreased right-sided strength in the wrist, elbow, shoulder, and grip. The Veteran also reported right arm parasthesia. An August 2017 VA examination noted extreme hyperesthesia. A rating higher than 40 percent is not warranted, however, as there is no evidence to support that the Veteran's disability more nearly approximates severe incomplete paralysis or complete paralysis. There is no evidence of loss of reflexes, muscle atrophy or loss of use of the hand, which would indicate the Veteran's disability is of a severe severity. There is no evidence of complete paralysis. Based on the above, the Board finds that the disability is primarily manifested by moderate impairment of motor functions, sensory disturbance, and pain and warrants a rating of 40 percent, but no higher, for moderate incomplete paralysis. The Board also finds that the most probative evidence of record is against a finding that the disability is manifested by loss of reflexes, muscle atrophy or complete paralysis. The Board thus finds that the level of impairment is most analogous to moderate and not severe or complete paralysis. At no time has a VA examiner described the Veteran's disability as severe or as complete paralysis. For example, although the Veteran's muscle strength is decreased, he continues to have at least active movement against some resistance and there is no muscle atrophy. See, e.g., August 2021 VA examination. Although the Veteran experiences numbness and pain, sensation for light touch is not absent. Id. The Board has considered the statements and arguments of the Veteran as to the severity of his disability. The Veteran is competent to describe his symptoms and that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board notes that the Veteran's symptoms have affected his daily life and employment. Generally, compensable schedular ratings are assigned to reflect impairment of earning capacity (from the disability in question). See 38 C.F.R. § 4.1. While the Veteran's service-connected disability undoubtedly led to difficulties with employment and daily life, the Board finds that a 40 percent rating, and no higher, for the entire period on appeal, compensates the Veteran for such functional and occupational impairment. In conclusion, the Board finds that an initial rating of 40 percent, but no higher, for complex regional pain syndrome is granted. In making this determination, all reasonable doubt has been resolved in favor of the Veteran. See Gilbert, 1 Vet. App. at 55. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.