Citation Nr: 21064142 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-02 169 DATE: October 19, 2021 ORDER Entitlement to an initial compensable rating for osteopenia from November 13, 2012 to June 18, 2019 is denied. REMANDED Entitlement to a rating in excess of 40 percent for a back condition with osteoporosis from June 18, 2019 onward is remanded. Entitlement to a rating in excess of 10 percent for left hip painful motion with osteoporosis from June 18, 2019 onward is remanded. Entitlement to a rating in excess of 10 percent for right hip painful motion with osteoporosis from June 18, 2019 onward is remanded. Entitlement to an initial compensable rating for impairment of the left thigh with osteoporosis from June 18, 2019 onward is remanded. Entitlement to an initial compensable rating for impairment of the right thigh with osteoporosis from June 18, 2019 onward is remanded. Entitlement to an initial compensable rating for limitation of extension of the left thigh with osteoporosis from June 18, 2019 onward is remanded. Entitlement to an initial compensable rating for limitation of extension of the right thigh with osteoporosis from June 18, 2019 onward is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 31, 2015 is remanded. FINDING OF FACT The Veteran's osteopenia was asymptomatic and did not result in any functional loss, including limitation of motion, from November 13, 2012 to June 18, 2019. CONCLUSION OF LAW The criteria are not met for entitlement to an initial compensable rating for the osteopenia from November 13, 2012 to June 18, 2019. 38 U.S.C. §§ 1155, 5107 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5099-5013. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February to December 1977. This claim was previously before the Board in September 2018 and remanded back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration including to obtain updated treatment records and have documents translated into English. The Board again remanded this claim in March 2021 for still more development including this time additionally to have the Veteran reexamined to reassess the severity of her osteopenia. Those remand instructions since have been completed, as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to an initial compensable rating for osteopenia from November 13, 2012 to June 18, 2019 Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A 0 percent (noncompensable) rating is appropriate, even when a DC does not specifically provide for this rating, when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. During this initial period at issue from November 13, 2012 to June 18, 2019, the Veteran's osteopenia was rated under DC 5099-5013. Hyphenated DCs, including a DC ending in the digits "99", are used when there is no specifically applicable DC, and the disability is rated by analogy. 38 C.F.R. § 4.27. The Veteran's osteopenia is rated by analogy to osteoporosis (DC 5013). DC 5013 for osteoporosis directs that the disability will be rated based on limitation of motion of affected parts, as degenerative arthritis, except for gout. See 38 C.F.R. § 4.71a, DC 5013. Under DC 5003, degenerative arthritis established by X-ray findings will be rated based on limitation of motion of the affected joints. When, however, the limitation of motion is 0-percent disabling (so noncompensable) under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Id., DC 5003. DC 5003, Note (2), explains these 10 and 20 percent ratings based on X-ray findings will not be utilized in rating conditions listed under DCs 5013 to 5024, inclusive. See id., Note (2). This means that a compensable rating based on X-ray findings of osteopenia is not available since rated under DC 5013. In July 2013, the Veteran underwent a VA examination for her osteopenia. The examiner noted that the Veteran was taking daily medication for osteopenia and that it was diagnosed by a bone densitometry imaging study in August 2012, so the prior year. Of note, this examination directed the examiner to complete the appropriate questionnaires for any skeletal complications attributable to the endocrine condition (i.e., osteopenia). The examiner did not complete any other VA examinations pertaining to the musculoskeletal system, meaning she did not find any complications such as limitation of motion owing to the Veteran's osteopenia. In a December 2015 written statement to VA, the Veteran claimed that "all her arm joints which are currently hurting and swelling..." were due to her osteopenia. However, this statement is not consistent with the objective medical evidence. In January 2016, the Veteran underwent multiple VA examinations for her shoulders, arms, wrists, and hands. Concerning her elbows, she was found to have a diagnosis of lateral epicondylitis in both elbows that was the cause of her bilateral elbow pain, and she had a full range of motion of both elbows on examination. Concerning her hands and fingers, there was no diagnosis associated with any condition of her hands or fingers rendered and she had full range of motion. She had abnormal range of motion in both shoulders, but this was attributed to bursitis, not osteopenia. Concerning her wrists, there was no diagnosis rendered and just slightly limited range of motion. In February 2016, the Veteran underwent an additional VA examination for osteopenia. The examiner indicated the only symptom associated with this disease was joint stiffness, and this disease had no impact on the Veteran's usual daily activities. The Veteran again underwent a VA examination for osteopenia in August 2016. This examiner pointed out bone densitometry imaging scans from August 2012 and November 2014 showed osteopenia present in the Veteran's lumbar spine, left hip, and femoral neck (thigh). But the examiner found there were no pertinent physical findings or symptoms owing to the Veteran's osteopenia. Further, there was no noted osteopenia in her shoulders, arms, wrists, or hands. In October 2016, the Veteran underwent a VA lumbar spine examination. The examiner diagnosed lumbar degenerative disc disease (DDD) and lumbar muscle spasm. The Veteran had limited range of motion in her lumbar spine. The Veteran also underwent a VA hip and thigh examination in October 2016. The examiner provided no diagnosis pertaining to the hips or thighs but observed that the Veteran had a limited range of motion in her right and left hips. More specifically, her right and left hip flexion was limited to 60 degrees. However, according to the DCs pertaining to the hips and thigh, this is not a ratable limitation of motion meaning a limitation to a compensable degree or extent. Rather, according to DC 5252 for limitation of flexion of the thigh, a 10 percent rating requires limitation of flexion to 45 degrees. See 38 C.F.R. § 4.71a, DC 5252. Additionally, the Veteran did not have a ratable limitation of motion under any other DC pertaining to the hip or thigh. See id., DCs 5250-5255. Moreover, the examiner did not state that the extent of limitation of motion shown was due to the Veteran's osteopenia, as opposed to some other factor or cause. The October 2016 VA examiner provided an additional opinion concerning the Veteran's osteopenia. This examiner explained that osteopenia is bone density that is lower than normal but is not low enough to be classified as osteoporosis and that osteopenia means that, as time passes, there is a greater risk that a person will develop osteoporosis. The examiner then clarified that, "[o]steopenia has no symptoms." Further, he stated that osteopenia causes no pain or change as the bone becomes thinner although the risk of breaking a bone goes up as the bone becomes less dense. Concerning the Veteran's claims of lumbar spine pain, the examiner stated that this pain was due to DDD and lumbar muscle spasms, separate disabilities from her osteopenia, and the pain was not due to her osteopenia. Concerning the Veteran's hip pain, the examiner explained that the Veteran's lumbar muscle spasms often occur near the spinal cord or near the nerve roots that lead in and out of the spinal cord, which can put pressure on the sensitive nerves causing pain. A September 2018 VA treatment record shows the Veteran had mild osteopenia of her spine. Ultimately, then, for this initial period the medical evidence of record does not show a ratable limitation of motion owing to the Veteran's osteopenia. Further, as explained by the October 2016 VA examiner, osteopenia does not cause pain and has no symptoms, and the Veteran's subjective pain is attributable to other diagnoses. See Mittleider v. West, 11 Vet. App. 181 (1998). In a June 2021 rating decision, it was determined that effective June 18, 2019, the medical evidence shows the Veteran's osteopenia had worsened, in fact, it had progressed to osteoporosis, meaning she no longer has a diagnosis of osteopenia. Because of this, as already mentioned, she was awarded separate ratings for osteoporosis of her lumbar spine, hips, and thighs effective June 18, 2019. A July 2019 bone density scan further confirms that her osteopenia had progressed to osteoporosis. The Board finds that the October 2016 VA examiner's opinion is the most probative evidence of record regarding the severity of the osteopenia, as this opinion explains what osteopenia is and how it manifests, also distinguishes the Veteran's separate disabilities of osteopenia and her lumbar spine, and is based on medical knowledge and experience. Because the Veteran is a layman, she does not have the competence to give a probative opinion establishing that her various pains or limited motion are due to osteopenia instead of her other diagnoses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the VA medical examiner's opinion against this claim is more probative and, in fact, determinative of the ultimate disposition. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). In conclusion, for the reasons and bases discussed, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a compensable rating for her osteopenia from November 13, 2012 to June 18, 2019. In denying any higher rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a rating in excess of 40 percent for a back condition with osteoporosis from June 18, 2019 onward is remanded. 2. Entitlement to a rating in excess of 10 percent for left hip, painful motion with osteoporosis from June 18, 2019 onward is remanded. 3. Entitlement to a rating in excess of 10 percent for right hip, painful motion with osteoporosis from June 18, 2019 onward is remanded. 4. Entitlement to an initial compensable rating for impairment of the left thigh with osteoporosis from June 18, 2019 onward is remanded. 5. Entitlement to an initial compensable rating for impairment of the right thigh with osteoporosis from June 18, 2019 onward is remanded. 6. Entitlement to an initial compensable rating for limitation of extension of the left thigh with osteoporosis from June 18, 2019 onward is remanded. 7. Entitlement to an initial compensable rating for limitation of extension of the right thigh with osteoporosis from June 18, 2019 onward is remanded. The Veteran was in receipt of a noncompensable rating for osteopenia from November 13, 2012 to June 18, 2019, under DC 5099-5013. While the appeal for an increased rating for osteopenia was pending, a June 2021 rating decision granted service connection and assigned separate ratings for osteoporosis of the back (under DCs 5013-5237), hips (under DCs 5013-5252), and thighs (under DCs 5013-5251 and 5013-5253), all effective June 18, 2019. The disabilities are described as osteoporosis of the back, hips, and thighs "previously evaluated as osteopenia." Further, the Veteran's noncompensable rating for osteopenia ended as of June 18, 2019. A change in the situs of the disability or the DC associated with it "does not change the categorization of the disability such that service connection for one disability is severed and service connection for another disability is created." Read v. Shinseki, 651 F.3d 1296, 1301-02 (Fed. Cir. 2011). The assignment of separate ratings for osteoporosis of the back, hips, and thighs represents the progression of osteopenia to osteoporosis. The assignment of separate ratings for osteoporosis and the cessation of the noncompensable rating for osteopenia constitutes a change in situs or DC, and not severance of service connection for osteopenia and creation of service connection for osteoporosis. See Read, 651 F.3d at 1301-02. Therefore, the ratings for osteoporosis of the back, hips, and thighs are properly before the Board by virtue of the appeal for an increased rating for osteopenia. See AB v. Brown, 6 Vet. App. 35, 38 (1993); Hamilton v. Brown, 4 Vet. App. 528, 541 (1993); Hudson v. Principi, 3 Vet. App. 467, 468 (1992). Regarding the claims of entitlement to a rating in excess of 40 percent for a back condition with osteoporosis, ratings in excess of 10 percent for left hip painful motion and right hip painful motion, both with osteoporosis, and for compensable ratings for left hip impairment with osteoporosis, right hip impairment with osteoporosis, limitation of extension left thigh with osteoporosis, and right hip limitation of extension with osteoporosis, a supplemental statement of the case (SSOC) has not yet been issued. A remand is required for the AOJ to issue a SSOC. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 8. Entitlement to a TDIU Prior to July 31, 2015 In November 2016, while the underlying increased rating appeal was pending, VA received a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, which contended that a TDIU was warranted based on osteoporosis of all joints. A July 2020 rating decision granted a TDIU effective July 31, 2015. A request for a TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits. Rather, it is an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Once the issue of entitlement to a TDIU is raised, it is "part of the claim for benefits for the underlying disability." Id. Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the AOJ for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, when the AOJ fails to grant the benefit in full (i.e., entitlement to a TDIU for the entire period on appeal), that portion of the claim that remains unresolved is still on appeal. The issues of entitlement to increased ratings for osteoporosis of the back, hips, and thighs are properly before the Board. While the appeal for an increased initial rating for osteopenia, which progressed to osteoporosis, was pending, the Veteran contended that a TDIU was warranted based on that condition; therefore, the appeal period for the claim for a TDIU dates back to November 13, 2012, the effective date of the grant of service connection for osteopenia. See Rice, 22 Vet. App. at 453-54; Harper, 30 Vet. App. at 362 (The notice of disagreement "placed the issue of the appropriate disability evaluation into appellate status and, therefore, because he was not awarded the highest rating possible, including TDIU, for the entire appeal period, the issue of entitlement to TDIU [prior to the effective date of the partial grant] remained on appeal."); see also 38 C.F.R. § 3.400(b)(2). The July 2020 rating decision awarded a TDIU effective July 31, 2015; however, the period on appeal begins November 13, 2012. Therefore, the issue of entitlement to a TDIU for the period from November 13, 2012 to July 31, 2015 remains on appeal as part and parcel of the appeal for an increased rating for osteopenia/osteoporosis because it was not granted in full. The Board notes that as of the writing of this decision, the Veteran does not meet the schedular criteria for a TDIU for this period on appeal, however a TDIU may still be granted on an extraschedular basis. Concerning entitlement to a TDIU prior to July 31, 2015, the AOJ has not addressed this issue in the first instance. Accordingly, these remaining claims are REMANDED for the following action: 1. Send the Veteran and her representative a supplemental statement of the case (SSOC) that addresses the issues of a) entitlement to a rating in excess of 40 percent for a back condition with osteoporosis; b) a rating in excess of 10 percent for left hip painful motion with osteoporosis; c) a rating in excess of 10 percent for right hip painful motion with osteoporosis; d) a compensable rating for left hip impairment with osteoporosis; e) a compensable rating for right hip impairment with osteoporosis; f) a compensable rating for limitation of extension left thigh with osteoporosis; and g) a compensable rating for right hip limitation of extension with osteoporosis. 2. Conduct any additional development deemed necessary to adjudicate the claim of entitlement to a TDIU prior to July 31, 2015, including, if warranted, referring his claim to VA's Director of Compensation Service for extra-schedular consideration under the special provisions of 38 C.F.R. § 4.16(b). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.