Citation Nr: 21068794 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 16-59 104 DATE: November 12, 2021 ORDER Entitlement to separate ratings for bilateral lower extremity radiculopathy as secondary to the service-connected thoracolumbar spine disability is granted. Entitlement to an initial rating greater than 20 percent for degenerative changes, thoracolumbar spine prior to July 19, 2021, is denied. Entitlement to a rating of 40 percent for degenerative changes, thoracolumbar spine since July 19, 2021, is granted. Entitlement to an initial compensable rating for status post fracture, fifth metacarpal, left hand, is denied. Entitlement to an initial rating greater than 10 percent for gastroesophageal reflux disease (GERD) prior to February 3, 2020, and greater than 30 percent since that date is denied. Entitlement to a total rating based in individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's thoracolumbar spine disability caused bilateral lower extremity radiculopathy. 2. Prior to July 19, 2021, the Veteran's degenerative changes, thoracolumbar spine has been productive of forward flexion to no worse than 45 degrees, and pain. 3. Since July 19, 2021, the Veteran's degenerative changes, thoracolumbar spine has been productive of forward flexion to no worse than 30, and pain; favorable ankylosis of the entire thoracolumbar spine has not been shown. 4. The Veteran's status post fracture, fifth metacarpal, left hand has been productive of pain with some limitation of motion, but it is not consistent with amputation. 5. Prior to February 3, 2020, the symptoms associated with the Veteran's GERD were not productive of considerable impairment of health. 6. Since February 3, 2020, the symptoms associated with the Veteran's GERD were not productive of material weight loss, hematemesis, melena with moderate anemia, or severe impairment of health. 7. During the relevant time period on appeal, the Veteran has had a combined rating of at least 70 percent with one disability rated at least 40 percent, and the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral lower extremity radiculopathy on a secondary basis have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2020). 2. Prior to July 19, 2021, the criteria for an initial rating in excess of 20 percent for degenerative changes, thoracolumbar spine, are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242 (2020). 3. Since July 19, 2021, the criteria for an initial rating of 40 percent for degenerative changes, thoracolumbar spine, are met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242 (2020). 4. The criteria for an initial compensable rating for status post fracture, fifth metacarpal, left hand, are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5230 (2020). 5. Prior to February 3, 2020, the criteria for an initial rating in excess of 10 percent for GERD have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.20, 4.114, Diagnostic Code 7399-7346 (2020). 6. Since February 3, 2020, the criteria for an initial rating in excess of 30 percent have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.20, 4.114, Diagnostic Code 7399-7346 (2020). 7. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. § 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1979 to June 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from December 2015 and August 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a Board videoconference hearing. A copy of the hearing transcript is of record. In January 2020, the Board remanded the Veteran's claims for additional development. The Veteran also appealed the issue of entitlement to service connection for a cervical spine disability. In a January 2021 rating decision, the RO granted service connection for a cervical spine disability, which constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, those matters are no longer in appellate status. See Grantham, 114 F.3d at 1158. Increased Rating Thoracolumbar Spine and Radiculopathy The Veteran contends that his thoracic spine disability warrants a rating in excess of 20 percent. He testified that his back has worsened and affects his ability to walk. He noted that his wife had to handle all of the grocery duties because he unable to assist. He endorsed flare-ups of back pain which made it difficult to perform activities of daily living. VA outpatient treatment reflect reports of back pain but do not include any findings pertinent to rating the thoracic spine. During a November 2015 VA examination, the Veteran reported back pain which increased with sitting longer than twenty minutes, standing longer than five minutes, or walking fifty yards. Range of motion testing of the lumbar spine in active and passive motion revealed flexion to 45 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The examiner noted pain with flexion and pain with weight bearing. The Veteran was able to perform three repetitions of motion with no additional loss of motion or function. The examiner indicated that there was no additional loss of motion or function with repeated use over time and no loss of motion with flare-ups, but the Veteran did have additional pain with flare-ups. There was no guarding or muscle spasm. Reflex and sensory examinations were normal. Straight leg raising was negative on the right and left. There was no radiculopathy and no ankylosis of the spine. The Veteran ambulated without the use of any assistive devices. The examiner assessed the Veteran with degenerative arthritis of the spine and intervertebral disc syndrome. During a June 2017 VA examination, the Veteran reported moderate mid and low back pain. He denied flare-ups of thoracolumbar spine symptoms. He endorsed difficulty bending and lifting. Range of motion testing revealed flexion to 60 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 30 degrees with pain on forward flexion and extension. The Veteran was able to perform three repetitions of motion with no additional loss of function or motion. The Veteran was not limited by pain, weakness, fatigability, or incoordination with repeated use or with flare-ups. The examiner indicated that the Veteran had loss of normal lordosis and mild to moderate thoracolumbar spine spasm. Muscle strength testing, reflex examination, and sensory examination were normal bilaterally. Straight leg raising was negative and there was no radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of the spine and no other neurologic abnormalities. The Veteran ambulated with the regular use of a cane. There was objective evidence of pain when the back was used in non-weight bearing. The Veteran had moderate tenderness with wincing from T5 to L5 bilaterally. There was no evidence of pain with weight bearing. The examiner assessed the Veteran with degenerative arthritis of the thoracic spine and degenerative disc disease. During a February 2020 VA examination, the Veteran reported that he underwent a lumbar laminectomy in April 2018 which cut his pain in half and was successful in his opinion. The Veteran denied flare-ups of the thoracolumbar spine. Range of motion testing revealed Range of motion testing revealed flexion to 65 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 30 degrees. Pain was noted on range of motion testing with no additional loss of function. There was pain with weight bearing and mild tenderness of the soft tissue of the lumbar spine. The Veteran was able to perform three repetitions of motion with no additional loss of motion or function. There was no additional loss of functional ability with repeated use over time. The Veteran had guarding which did not result in an abnormal gait or spinal contour. Reflex examination was 1+ in the bilateral knees and ankles. Sensory examination was normal and straight leg raising was normal bilaterally. There was no radiculopathy and no ankylosis. The Veteran ambulated with the regular use of a cane for his back condition. During a July 2021 VA examination, the Veteran reported constant low back pain with intermittent pain radiating symptoms down the legs. The Veteran endorsed flare-ups of the thoracolumbar spine every month lasting one to two weeks resulting in more intense low back pain. The Veteran reported that he was unable to hunt, fish, or grocery shop, perform yard work or walk his dogs. Range of motion testing revealed flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 20 degrees with pain in all planes. The examiner indicated that passive range of motion was too painful to assess. There was no evidence of crepitus but there was tenderness on the mid lumbar spine. There was no loss of function or range of motion with three repetitions. The examiner indicated that pain limited the Veteran's functional ability with repeated use over time and during flare-ups. The examiner estimated that range of motion after repeated use and during flare-ups resulted in flexion to 20 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 20 degrees with pain in all planes. The Veteran had localized tenderness which did not result in an abnormal gait or abnormal spinal contour. The Veteran had some decreased muscle strength with hip flexion and great toe extension bilaterally but there was no muscle atrophy. Reflexes were absent in the bilateral knees and hypoactive in the bilateral ankles. Sensation to light touch was decreased in the right upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes and in the left upper anterior thigh and thigh/knee. Straight leg raising was positive bilaterally. The Veteran had severe intermittent pain in the right and left lower extremities, moderate paresthesias and/or dysesthesias of the right and left lower extremities, and moderate numbness of the right lower extremity and mild numbness of the left lower extremity. The examiner indicated that the femoral and sciatic nerve roots were affected by radiculopathy. There was no ankylosis of the spine. The Veteran ambulated with the occasional use of a brace, constant use of a cane, and occasional use of a walker. The examiner assessed the Veteran with degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome, spinal stenosis, and bilateral lower extremity radiculopathy. As an initial matter, the Board notes that the Veteran was assigned a temporary total rating for his thoracolumbar spine disability for the period from April 17, 2018, to June 30, 2018 pursuant to 38 C.F.R. § 4.30. Thereafter, a 20 percent rating was continued. With regard to radiculopathy, although the Veteran had normal clinical findings related to the right and left lower extremities at the examinations in 2015 and 2020, at the 2021 VA examination the Veteran had radiculopathy of the right and left femoral and sciatic nerve roots. As such, separate rating for radicular symptoms of the right and left lower extremities are granted. With regard to the thoracolumbar spine, prior to July 19, 2021, review of the evidence indicates that, at worst, forward flexion of the Veteran's thoracolumbar spine was limited to 45 degrees which is consistent with a 20 percent rating under Diagnostic Code 5242. The evidence does not indicate that forward flexion was limited to 30 degrees or less, or that there was favorable ankylosis of the entire thoracolumbar spine. Furthermore, VA treatment records do not document any decreased function related to the lumbar spine disability. In terms of functional impairment, the Board does not find that forward flexion has been limited to 30 degrees or has been manifested by favorable ankylosis of the entire thoracolumbar spine. Therefore, a rating in excess of 20 percent is not warranted under Diagnostic Code 5242. Since July 19, 2021, review of the evidence indicates that, at worst, forward flexion of the Veteran's thoracolumbar spine was limited to 30 degrees which is consistent with a 40 percent rating under Diagnostic Code 5242. The evidence does not indicate that there was favorable ankylosis of the entire thoracolumbar spine. Furthermore, VA treatment records do not document any decreased function related to the lumbar spine disability. In terms of functional impairment, the Board does not find that forward flexion has been manifested by favorable ankylosis of the entire thoracolumbar spine. Therefore, a rating of 40 percent and no more is warranted under Diagnostic Code 5242 The Board acknowledges that the Veteran has been diagnosed with IVDS and that the regulations pertaining to Diagnostic Code 5243 were recently amended. However, he has not had any episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past twelve months to allow for a higher rating pursuant to the Formula for Rating IVDS. Moreover, the amended regulations pertaining to Diagnostic Code 5243 indicate that this diagnostic code should only be assigned with disc herniation with compression and/or irritation of the adjacent nerve root which has not been diagnosed in this case. Finally, the Board has considered the effects of repeated use over time and flare-ups in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the evidence indicates that there was no additional loss of motion after three repetitions at any examination. Moreover, the 2021 VA examiner accounted for the functional impairment during repeated use and with flare-ups and determined that the Veteran's range of motion would result in 10 degrees of loss of flexion (flexion to 20 degrees as opposed to 30 degrees). The Veteran also endorsed problems with standing and sitting and performing activities of daily living. However, the Veteran has not described any functional loss that would be consistent with a rating in excess of 20 percent. In sum, an initial rating in excess of 20 percent is not warranted for the thoracolumbar spine disability prior to July 19, 2021, and a rating of 40 percent, and no more, is warranted since that date. 38 C.F.R. § 4.71, Diagnostic Code 5242. Increased Rating Fifth Metacarpal, Left Finger The Veteran contends that his fifth metacarpal, left finger warrants a compensable rating. He testified that his finger is painful and at time he has difficulty with motion of the finger. VA outpatient treatment reports do not reveal any findings pertinent to rating the left fifth metacarpal. During a December 2015 VA examination, the Veteran was noted to be right hand dominant. The Veteran had normal range of motion of the left fifth metacarpal and no additional loss of function or motion with three repetitions. There was no gap between the pad of the fingers and the proximal transverse crease of the hand on maximal finger flexion. The Veteran denied flare-ups of the left hand and fingers. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. There was no ankylosis of the left fingers. The examiner indicated that the remaining function of the fingers would not be equally well-served by an amputation and prosthesis. During a February 2020 VA examination, the Veteran reported pain at all times in the left fifth finger and he noted that he slept with his hand on a hand pillow to prevent it from being bumped. He did not report any negative impact on activities of daily living or sedentary pursuits. He denied flare-ups of the left hand and fingers. The Veteran had some loss of motion of the left little finger with pain on motion but no additional loss off function or motion with three repetitions. There was no gap between the pad of the fingers and the proximal transverse crease of the hand on maximal finger flexion. There was evidence of pain on use of the hand related to arthritis. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. There was no ankylosis of the left fingers. The examiner indicated that the remaining function of the fingers would not be equally well-served by an amputation and prosthesis. In this case, the Veteran's service-connected left little finger disability has been rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5230. Under Diagnostic Code 5230, limitation of the little finger warrants a noncompensable rating. A noncompensable rating is the maximum rating available for limitation of motion for either the major or minor extremity under Diagnostic Code 5230. 38 C.F.R. § 4.71a, Diagnostic Code 5230. A compensable rating is warranted for amputation of the little finger; however, the VA examiners indicated that remaining function of the fingers would not be equally well-served by an amputation and prosthesis. Therefore, a higher rating by analogy to amputation is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5227. Finally, the Board has considered the effects of repeated use over time and flare-ups in light of the Board has considered the effects of repeated use over time and flare-ups in light of the Court of Appeals for Veterans' Claims (Court's) holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The December 2015 and February 2020 VA examiners noted that functional ability was not limited with repeated use over time and there was no additional limitation of motion of the little finger after repetitive use testing. In this case, the examination findings and the Veteran's subjective reports do not indicate that the little finger disability is consistent with amputation. In sum, the Board finds that the Veteran's symptomatology is consistent with a noncompensable rating throughout the appeal period. A compensable rating is not warranted for the left finger disability. 38 C.F.R. § 4.71, Diagnostic Code 5230. Increased Rating GERD The Veteran contends that his GERD warrants increased initial ratings. The Veteran's GERD was initially rated as 10 percent disabling and the rating was increased to 30 percent during the course of the appeal. The Veteran testified that he takes Prevacid for his GERD symptoms which consist of burning pain and acid reflux. During a December 2015 VA examination, the Veteran reported heartburn for which he used Zantac. The Veteran endorsed pyrosis. The examiner did not indicate that the Veteran's symptoms were productive of considerable impairment of health or impacted his ability to work. The examiner assessed the Veteran with GERD. During a VA examination in June 2017, the Veteran reported chest pain and heart burn. The Veteran used omeprazole twice daily to treat his symptoms. The Veteran endorsed persistently recurrent epigastric distress, pyrosis, reflux, substernal pain, sleep disturbance caused by esophageal reflux four or more times per year, and mild nausea four or more times per year. There was no esophageal stricture, spasm of the esophagus, or an acquired diverticulum of the esophagus. The examiner did not indicate that the Veteran's symptoms were productive of considerable impairment of health or impacted his ability to work. The examiner assessed the Veteran with GERD. During a February 2020 VA examination, the Veteran reported intermittent sharp pains in the abdomen and acid reflux in the back of the throat. The Veteran used omeprazole daily. The examiner noted that the Veteran's symptoms were productive of considerable impairment of health. The Veteran endorsed persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, and regurgitation. sleep disturbance caused by esophageal reflux four or more times per year, and mild nausea four or more times per year. The examiner did not indicate that the Veteran's symptoms were productive of severe impairment of health or impacted his ability to work. The examiner assessed the Veteran with GERD. For the period prior to February 3, 2020, the evidence of record does not show that the criteria for a 30 percent rating have been met (or approximated) at any time during the relevant period. Notably, the criteria for a 30 percent rating require that there is persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Of note, the criteria under Diagnostic Code 7346 are stated in the conjunctive and must all be met to warrant such rating. Although the medical evidence reflects worsening of symptoms at the 2017 examination, the record does not reflect that the Veteran experienced regurgitation or that his symptoms were productive of considerable (large in extent) impairment of health. Indeed, no examiner has found that the Veteran's GERD had any impact on his ability to work. His symptoms and impairment shown are contemplated in the 10 percent rating assigned, as he has experienced two out of the three delineated symptoms of lesser severity. As such, a higher rating for GERD is not warranted. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2020). For the period since February 3, 2020, the evidence of record does not show that the criteria for a 60 percent rating have been met (or approximated) at any time during the relevant period. Notably, the criteria for a 60 percent rating require that there are symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. The record does not reflect that the Veteran experienced vomiting, material weight loss, and hematemesis or melena with moderate anemia or that his symptoms were productive of severe impairment of health. In fact, the 2020 VA examiner specifically found that the Veteran's symptoms were productive of considerable impairment of health. Moreover, the examiner indicated that the Veteran's symptoms did not impact his ability to work. His symptoms and impairment shown are contemplated in the 30 percent rating assigned, as he has experienced Veteran endorsed persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, and regurgitation productive of considerable impairment in health. As such, a higher rating for GERD is not warranted. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2020). In sum, an initial rating in excess of 10 percent is not warranted for the GERD prior to February 3, 2020, and a rating in excess of 30 percent since that date is not warranted. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2020). TDIU The Veteran indicated that he last worked in December 2014. He asserts that his service-connected back disability prevented him from maintaining or securing any substantially gainful employment. He is currently service-connected for sleep apnea, GERD, a thoracolumbar spine disability, a cervical spine disability, tinnitus, a left finger disability, and a scar of the thoracolumbar spine. He has been in receipt of a combined rating of at least 70 percent, with at least one disability rated at 40 percent or higher during the relevant time period on appeal. As such, the Veteran meets the criteria for assignment of a TDIU. 38 C.F.R. § 4.16 (2020). He testified that he worked as a security officer but had to leave those jobs due to pain. He indicated that he worked at the forest service and his post was on the second floor and he was unable to climb the stairs. He reported that he left all of his jobs due to back pain. He indicated that he was unable to walk due to back pain and trouble walking. On a VA Form 21-8940, the Veteran indicated that he last worked in December 2014 as a protective security officer and was unable to climb stairs to get to his post. He reported that when he was working, he was in constant pain. He stated that he also worked as a protective security officer and a transport officer. He indicated that he had to take pain medication to alleviate the pain and if he failed to take the medication his pain increased tremendously. He noted that he had to use a cane to walk and was unable to walk more than fifty yards without a break and stand for thirty minutes to two hours due to back pain. He reported that he completed four years of high school. Other evidence of record also indicates that he worked as a truck driver. Records from the Social Security Administration (SSA) indicate that the Veteran was in receipt of SSA disability benefits since December 2014 due to a primary diagnosis of osteoarthrosis and allied disorders and a secondary diagnosis of disorders of the back. During a December 2015 VA examination of the thoracolumbar spine, the examiner indicated that the Veteran's thoracolumbar spine had a moderate impact on standing, bending, lifting, carrying, and sitting. During a June 2017 VA examination of the thoracolumbar spine, the examiner indicated that the Veteran was limited to only sedentary working environments and ten pounds of lifting due to his back impairment. During a January 2021 VA examination of the cervical spine, the Veteran reported that it was hard to drive due to difficulty looking around. He noted that it was difficult to perform any task that required that his neck remain in a fixed position. During a March 2021 VA examination for sleep apnea, the examiner indicated that the Veteran was unable to work in an occupation requiring working at heights above ground level, operating machinery or power tools, or driving motor vehicles and heavy equipment due to the risk of falling asleep and injuring himself or others. During a July 2021 VA examination of the thoracolumbar spine, the examiner indicated that the Veteran's back disability impacted his ability to work in that he was limited to sedentary work and his chair would need to be cushioned with arm rests to push off in order to stand. He would require an ergonomic desk to fluctuate between sitting and standing with naps to rest and stretch every two hours. No physical labor could be tolerated, including bending, lifting, or even standing or walking more than fifteen minutes at a time. Under the circumstances, in light of the totality of the record, and giving due consideration to the Veteran's description and giving due consideration to the Veteran's description of the functional effects of his service-connected thoracolumbar spine disability, as it relates to his level of education and prior occupational experience, the Board is persuaded that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected thoracolumbar spine disability. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107(b) (2018); 38 C.F.R. § 4.3 (2020). A schedular TDIU is therefore warranted. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Cryan, 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.