Citation Nr: 21071207 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-00 881 DATE: November 30, 2021 ORDER Entitlement to an increased rating of 40 percent from August 8, 2020 for lumbar degenerative facet joint disease is granted. Entitlement to service connection for headaches, as secondary to the Veteran's service-connected degenerative joint disease of the cervical spine or lumbar degenerative facet joint disease is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability is remanded. FINDINGS OF FACT 1. The Veteran's forward flexion of the thoracolumbar spine is limited to 30 degrees or less and there is no evidence of ankylosis of the spine. 2. Resolving reasonable doubt in favor of the Veteran, the Veteran's headaches are proximately due to/aggravated beyond their natural progression by his service-connected degenerative joint disease of the cervical spine or lumbar degenerative facet joint disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 40 percent from August 8, 2020 for lumbar degenerative facet joint disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5237. 2. The criteria for entitlement to service connection for headaches, as secondary to the Veteran's service-connected degenerative joint disease of the cervical spine or lumbar degenerative facet joint disease have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1989 to June 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Increased Rating Issues Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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 claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 1. Entitlement to an increased rating of 40 percent from August 8, 2020 for lumbar degenerative facet joint disease The Veteran seeks a higher rating for his lumbar degenerative facet joint disease disability. The applicable rating period is from June 3, 2013, one year prior to the receipt of the claim, through the present. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (discussing the one-year "look-back" period for non-initial increased rating claims). The Veteran contends that he is in constant pain with any movement and has neuropathy in both hands at times. He has tried using a TENS unit, physical therapy, and care from a chiropractor, "to no avail." See March 2017 Notice of Disagreement. The Veteran contends that he cannot function daily to achieve his basic needs and is unable to maintain full employment. See December 2016 Form 9. The Veteran's low back strain with degenerative disc disease and facet degenerative joint disease is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. As relevant in this case, under the General Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.") Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran's treatment records reflect ongoing treatment for his back condition, including physical therapy and injections. In September 2015, the Veteran was afforded a VA examination for his back condition. The examiner indicated that the Veteran has a diagnosis of a lumbar degenerative facet joint disease to include intermittent radicular symptoms to the left lower extremity. The Veteran reported that he does not have flare-ups, but he cannot walk with a backpack of any type and has to limit his activities such as sports because of pain. He also indicated that the pain kept him from going to school because he could not concentrate. He reported he cannot take pain medications because he gets hazy and cannot concentrate. He reported that he cannot stand longer than an hour or two and spends a substantial amount of time stretching and doing other activities to try to keep his back from hurting. The Veteran had an initial range of motion of forward flexion to 70 degrees and a combined range of motion of the thoracolumbar spine greater than 120 degrees. The examiner indicated that the range of motion does not contribute to functional loss and there is no evidence of pain with weight bearing. The Veteran performed repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner declined to estimate the Veteran's functional ability for repeated use over time. The examiner indicated that the Veteran does not have guarding, muscle spasms or ankylosis. The Veteran's sensory exam was normal. The straight leg test was negative. The examiner noted that the Veteran did not have radiculopathy, ankylosis, or IVDS. Diagnostic testing revealed that the Veteran has mild arthritis of the lumbosacral spine. The examiner indicated that the Veteran's lack of pain with his nearly normal ROM would have minimal to no negative implication for the performance of physically demanding employment and no negative impact for sedentary employment. In October 2016 the Veteran was afforded a VA examination for his back condition. The examiner indicated that the Veteran has a diagnosis of lumbar degenerative facet joint disease to include intermittent radicular symptoms to the left lower extremity. The Veteran reported that since he was separated from the military, he started physical therapy, and has been treated by a chiropractor and has had steroid injections. The Veteran reported that he did not have flare-ups but is in constant pain throughout the day which limits him from doing basic day to day activities. For example, he cannot lift more than 5 lbs., cannot wear a backpack of any weight, and is limited to basic house chores. The Veteran had an initial range of motion of forward flexion to 70 degrees and a combined range of motion of the thoracolumbar spine greater than 120 degrees. The range of motion itself contributes to functional loss including a decreased ability to bend/twist and stoop. The Veteran performed repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner declined to estimate the Veteran's functional ability for repeated use over time. The examiner indicated that the Veteran does not have guarding, muscle spasms or ankylosis. The Veteran's sensory exam was normal. The straight leg test was negative. The examiner noted that the Veteran had radicular pain and symptoms due to radiculopathy including intermittent pain (usually dull) in the mild left lower extremity and mild numbness. The radiculopathy involves the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) of the left side, which is mild, and no other neurologic abnormalities. Diagnostic testing revealed that the Veteran has mild arthritis of the lumbosacral spine. The examiner indicated that the Veteran's back condition impacts his functional ability by decreasing his ability to bend/turn/twist but would not impact any sedentary employment. The Veteran reported intermittent pain and numbness that occurs every 3-4 months but was not having radicular pain during the examination. In August 2020, the Veteran was afforded a VA examination for his back condition. The examiner indicated that the Veteran was diagnosed with degenerative arthritis of the spine in 2015 and left lower extremity radiculopathy. The Veteran reported that he has continued to have pain in the upper back and thoracic spine area. He also reported having some difficulty in the lower back, but that the pain is in the scapular area mostly on the left. The Veteran reported that the pain becomes more severe and incapacitating at times and he has to do maneuvers he learned in physical therapy to be able to return to his normal activity. The Veteran treats his condition through physical therapy, over the counter medications, prescription muscle relaxers, acupuncture, medication, and pain psychology. The Veteran reported that he has flare-ups. He stated that his upper back pain becomes more stabbing instead of its usual dull ache and radiates into a tingling into the upper extremities at times, especially the shoulders. The Veteran reported decreased flexion and other limitations of motion due to pain. The Veteran had an initial range of motion of forward flexion to 25 degrees and a combined range of motion of the thoracolumbar spine of 104 degrees. Pain was noted for forward flexion, extension and left lateral flexion. The observed repetitive use testing revealed a forward flexion of 30 degrees and a combined range of motion of 109 degrees. The examiner indicated that the Veteran had pain that caused functional loss. The repeated use over time testing revealed that the Veteran had pain, weakness, fatigability or incoordination that significantly limited the Veteran's functional ability. The forward flexion was 30 degrees and the combined was 110 degrees. The Veteran did not have flare-ups during the examination, however the examiner estimated that the Veteran's forward flexion would be 20 degrees, and the combined range of motion would be 125 degrees. The examiner also noted objective evidence of pain during weight bearing, and non-weight bearing. The examiner noted that the Veteran had muscle spasms that did not result in an abnormal gait. The Veteran underwent sensory testing that was normal. The straight leg raising test was positive bilaterally. The Veteran did not have ankylosis, neurological abnormalities or IVDS. Diagnostic testing showed that the Veteran had mild degenerative disc disease in his 2015 lumbar x-ray, and his thoracic spine was normal during the September 2017 MRI. The examiner stated that, The Veteran's pain causes increased fogginess and trouble with concentration. As a college professor, this lack of concentration does can present a problem while teaching. He is having to stop and do scapular relaxation and meditation to relieve pain in the middle of class or teaching to be able to go on with his job. This is a disruption for his class and could present a safety risk if a student were to take advantage of his leaving the classroom. The thoracic pain and scapular spasm that is causing most of his problems related to his current diagnosis seem to be related to stress which are relieved by meditation techniques. There are not many occupations that will allow him the opportunity to leave in the middle of his job to do a meditation due to pain and then come back at any time, making this a very problematic diagnosis and treatment modality. The examiner also noted that the Veteran continuously commented about his neck and cervical spine, but then pointed to his scapula and trapezius muscle components during the examination components. The examiner also stated that the Veteran confuses his upper back pain and headache pain as one of the same, which made it difficult for the examiner to determine the location of the pain. The Board has considered the medical and lay evidence, and the Board finds that a disability rating of 40 percent but no higher from August 8, 2020 is warranted. The Board notes that the thoracolumbar spine is comprised of thoracic and lumbar spine segments. When rating a back disability, the thoracic and lumbar spine segments must be treated as a single unit, even if only one segment is service connected. Langdon v. McDonough, No. 2020-1789. See 38 C.F.R. § 4.71a, General Rating Formula. Here, the Veteran lumbar degenerative facet joint disease is service connected and although the examiner focuses on the thoracic spine segments, the Board must treat the thoracic and lumbar spine segments as a single unit. Thus, the evidence demonstrates that as of the August 2020 VA examination, the Veteran's forward flexion of the thoracolumbar spine is 30 degrees or less, which entitles the Veteran to a 40 percent rating. The Board acknowledges that the Veteran's treatment records reflect that he has received ongoing treatment for his back condition. However, it was not until the August 2020 VA examination that there was evidence that the Veteran's condition met the criteria required for a 40 percent rating. The Board notes, that the there is no evidence that the Veteran had ankylosis at any time during the appeal period, and thus a higher rating is not warranted. The Board also acknowledges that the Veteran's representative contends that the August 2020 VA examination is inadequate because the range of motion testing is inconsistent. However, the Veteran is receiving the highest possible rating based on range of motion, and thus a remand is not necessary to correct any possible deficiencies. The record does not reflect, and the Veteran does not contend that he has ankylosis, and thus a 40 percent rating but no higher is warranted. The Board also notes that the Veteran is currently service connected for radiculopathy, of the left lower extremity. Prior to August 2020, the Veteran's forward flexion was greater than 60 degrees but not greater than 85 degrees and he had a combined range of motion of the thoracolumbar spine greater than 120 degrees. Thus, a disability rating exceeding 10 percent was not warranted prior to August 2020. In conclusion, the Board finds that the preponderance of the evidence is in favor of granting the Veteran a 40 percent disability rating but no higher for his service-connected lumbar degenerative facet joint disease disability. To the extent the Veteran seeks ratings higher than those assigned herein, the preponderance of the evidence is against the appeal, the doctrine of reasonable doubt is not for application, and the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for headaches, to include as secondary to service-connected degenerative joint disease of the cervical spine or lumbar degenerative facet joint disease The Veteran contends that his headaches are secondary to his service-connected degenerative joint disease of the cervical spine or lumbar degenerative facet joint disease disabilities. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of or was aggravated beyond its natural progress by service-connected disability. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's diagnosed headaches are related to his service-connected disabilities. In a December 2014 psychology consult the Veteran reported that his headaches were secondary to his neck and shoulder pain, and he has headaches two to three times a week. The April 2015 VA examination demonstrated that the Veteran has a current disability of headaches. The Veteran reported that he has had headaches for the past 10 years or so but has not received formal treatment for his disability. The Veteran reported that he has a headache approximately every 3 days, that are located on the sides of his head and they last about half a day. The Veteran reported that when he has severe pain in the back, he develops a headache. He is able to function during the headache but notes he loses his ability to concentrate on the task at hand and takes Ibuprofen for the pain. The examiner noted that the Veteran's service treatment records do not reflect any complaints of headaches while the Veteran was on active duty. The examiner opined that the Veteran's headache disability is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service-connected condition. As to the rationale, the examiner noted that the Veteran's headaches were not located within his treatment records until 20 years since he separated from service. The examiner stated that there is a lack of medical evidence to support the Veteran's assertion that his headaches are due to his service-connected neck or back disability. In August 2020, the Veteran was afforded a VA examination for his headache disability. The examiner diagnosed the Veteran with tension headaches. The Veteran reported that the onset occurred from the date of his injury, where he hurt his back, but were only a few times a week. Specifically, the Veteran reported, He started with headaches while in service after suffering an injury to his neck and upper thoracic spine muscles from a boat maneuver being done while he was in the Marine Special Forces. The boat was capsized, and he was underneath the boat when a wave brought the raft back down upon his left parietal side of his head causing neck and scapular pain since then. The Veteran largely ignored the pain as he was able to treat the headaches with Ibuprofen daily. The Veteran reported that the headaches have progressed and are lasting longer and have become almost constant. The Veteran reported that the headaches impact his ability to work. Specifically, he has to change his lesson plans, he has difficulty concentrating, and the pain adds to his depression and anxiety. The headaches have also changed his ability to exercise more strenuously which impacts his ability to keep his blood pressure and weight under control. The examiner opined that the Veteran's diagnosed conditions of headache and tension headache are less likely than not (less than 50 percent probability) proximately due to or the result of any of the Veteran's five service-connected conditions. As to the rationale, the examiner indicated that the Veteran's headaches are not due to hypertension because his blood pressure is under control. Regarding anxiety, the examiner explained that anxiety is generally associated with tension headaches and headaches in general, but the examiner opines that the headaches are really due to the upper thoracic back pain and scapular dyskinesia and dysmotility. As to the service connected back and neck disabilities the examiner cited to an article suggesting that chronic pain was looked at as a cause of headaches of all types and found to be a biopsychosocial stressor causing not only an increase in depressive disorders but also other changes in neuromodulators found in headache disorders. In an October 2020 VA addendum opinion, the examiner again opined that the Veteran's headaches are due to the Veteran's upper thoracic pain and the scapula and not due to the Veteran's degenerative joint disease of the cervical spine or lumbar degenerative facet joint disease. The examiner then explains why the Veteran's upper thoracic pain and the scapula conditions are not related to service. The Veteran's representative contends that the VA examiners are selective, and limited in scope, in picking out the areas which cause the Veteran's pain thus contributing to his headaches. He goes on to explain that the Veteran has been clear and consistent that the Veteran's pain contributes to his headaches and the pain is not only restricted to the non-service-connected areas of his body. The Board is not convinced by the August 2020/October 2020 VA examiner's opinion that the Veteran's headaches are caused by one part of the spine and not by two other parts of the spine. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for headaches is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability is remanded. The Veteran contends that he can only work part-time due to his service-connected disabilities. See December 2016 Form 9. However, the Veteran has not completed a VA Form 21-8940, or been provided adequate notice of the requirements to substantiate a TDIU. Thus, the Veteran's TDIU claim must be remanded for more development. The matters are REMANDED for the following action: 1. Issue a notice letter to the Veteran concerning the claim for a TDIU. Ask him to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Upon receipt of the form, complete any additional development necessary. (Continued on the next page) 2. Thereafter, readjudicate the claim. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist Associate 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.