Citation Nr: 21071336 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-12 148 DATE: November 30, 2021 ORDER Entitlement to a rating higher than 10 percent before July 23, 2019, for lumbar strain is denied. Entitlement to a rating higher than 20 percent from July 23, 2019, for lumbar strain is denied. REMANDED Entitlement to service connection for radiculopathy of the bilateral lower extremities secondary to service-connected lumbar strain is remanded. Entitlement to service connection for hypertension, to include as due to herbicide exposure or secondary to service-connected diabetes mellitus, is remanded. FINDINGS OF FACT 1. For the period before July 23, 2019, the evidence is insufficient to establish that the Veteran's lumbar strain manifested in limitation of flexion of the thoracolumbar spine no greater than 60 degrees; or, in a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, in muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 2. For the period from July 23, 2019, the evidence is insufficient to establish that the Veteran's lumbar strain manifested in limitation of flexion of the thoracolumbar spine no greater than 30 degrees or in favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for a rating higher than 10 percent before July 23, 2019, or higher than 20 percent from July 23, 2019, for lumbar strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1968 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in November 2020. The Veteran appeals the denial of an increased rating for his service-connected lumbar strain and of service connection for hypertension. 1. Increased Rating for Lumbar Strain The rating decision on appeal denied an evaluation higher than 10 percent for the Veteran's lumbar strain. While the appeal was pending, in June 2020 a rating decision increased the evaluation to 20 percent from July 23, 2019. As this did not represent full relief for the Veteran's claim, the Board will adjudicate entitlement to increased evaluations throughout the appeal period. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already 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). The Veteran's lumbar strain is rated under Diagnostic Code (DC) 5237, for lumbosacral strain. 38 C.F.R. § 4.71a. Under DC 5237, the condition is in turn to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, DC 5237. Under the General Rating Formula, a 20-percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is 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 where there is forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50-percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. A 100-percent rating, which is the highest available, is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237, General Rating Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, normal extension is 0 to 30 degrees, normal left and right lateral flexion are 0 to 30 degrees, and normal left and right lateral rotation are 0 to 30 degrees. Id., General Rating Formula, Note (2). Moreover, for VA compensation purposes unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine, is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, DC 5237, General Rating Formula, Note (5). The Veteran's claim for an increased rating was received on December 29, 2016. The Board will consider evidence up to one year prior to determine the earliest date on which it is ascertainable that any increase in disability occurred. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2); Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In this case, the RO has determined that the Veteran's symptoms significantly changed throughout the appeal period, warranting separate ratings for separate periods of time, referred to as "staged" ratings. See Hart, 21 Vet. App. at 509. Thus, the Board considers entitlement to a rating higher than 10 percent before July 23, 2019, and entitlement to a rating higher than 20 percent from July 23, 2019. Turning to the evidence, a VA examination was provided on February 1, 2017. Range of motion testing found thoracolumbar flexion to 75 degrees, extension to 25 degrees, lateral flexion to 30 degrees bilaterally, and lateral rotation to 30 degrees bilaterally, without pain any motion. The Veteran reported intermittent low back pain occasionally radiating down both buttocks to his middle hamstrings, brought on by sitting, standing, walking 30 feet, bending, or lifting or carrying anything heavier than 25 pounds. He denied any flare-ups. The examiner found symptoms of bilateral radiculopathy with no other neurologic abnormalities. There was no guarding or muscle spasms, and no ankylosis. X-rays were noted to have shown degenerative joint disease and degenerative disc disease. The examiner opined that "[a]s known in the medical literature, neither lumbar degenerative joint nor disc disease nor associated radiculopathy is proximately due to or the result of lumbar strain." A November 13, 2018 x-ray found scoliosis in the spine. On December 4, 2018, a VA provider noted an impression, based on the x-ray, of "multilevel moderate to severe degenerative disc disease with right-sided lumbosacral radiculopathy, scoliosis." VA treatment records from December 4, 2018, and from March 29, 2019, wrote that range of motion for the lumbar spine was "forward flexion 20 [degrees] painful" and "extension 10 [degrees] painful." Another VA examination was provided on July 23, 2019. Range of motion testing found flexion to 50 degrees, extension to 20 degrees, lateral flexion to 15 degrees bilaterally, and lateral rotation to 30 degrees bilaterally, with pain in flexion and lateral flexion. The Veteran reported no flare-ups, and the examiner found no additional lost motion with repeated use over time. Additional factors included increased pain with prolonged walking, sitting, and standing, and the Veteran reported he was unable to bend or carry over 25 pounds. There was no guarding or muscle spasm, and no ankylosis. A newer x-ray found continuing moderate to severe multilevel arthritis. The examiner stated that due to his low back pain, the Veteran would be unable to be employed in an occupation requiring constant bending, lifting, sitting, walking, or standing for prolonged periods. In an opinion, the examiner concurred with the opinion of the February 1, 2017 examiner that "[a]s known in the medical literature, neither lumbar degenerative joint nor disc disease nor associated radiculopathy is proximately due to or the result of lumbar strain." At the November 19, 2020 Board hearing, the Veteran described that his low back pain affects his ability to bend in doing daily activities and that he has to be careful while lifting. He wears a back brace given by his VA doctor. His back goes out "every once in a while" but does not render him confined to bed. The Board is in receipt of the compilation of VA records submitted by the Veteran, which show the Veteran's multiple thoracolumbar diagnoses including degenerative disc disease, degenerative joint disease, and scoliosis, as well as radiculopathy in his hips and legs. Based on review of this evidence and all the remaining evidence of record, the Board unfortunately finds that a higher rating for the Veteran's lumbar strain is not warranted at any point during the appeal period. For the period before July 23, 2019, the Board finds that the evidence does not support a rating higher than 10 percent. A higher rating would require evidence that the Veteran's lumbar strain manifests in limitation of flexion no greater than 60 degrees, a combined range of motion of the thoracolumbar spine is no greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Here, the complete spine examination in February 2017, found that the Veteran's flexion was to 75 degrees, that the combined motion was greater than 120 degrees, and that the condition did not result in muscle spasm or guarding. The Board acknowledges the November 2018 x-ray finding of scoliosis in the spine; however, the examinations of record both before and after November 2018 found that the Veteran's lumbar strain does not manifest in muscle spasm or guarding, and there is no other evidence sufficient to establish that the Veteran's scoliosis was due to muscle spasm or guarding from his service-connected lumbar strain. The Board also acknowledges the VA treatment records from December 2018 and March 2019 indicating the Veteran's lumbar range-of-motion was "forward flexion 20" and "extension 10"; however, there unfortunately is not enough information within these notations or elsewhere in that provider's notes to allow the Board to determine whether the clinician intended to state that these were the measurements of the Veteran's ranges of motion, or rather were the deficits from a full range of motion for the respective maneuvers. (While this lack of specificity by the clinician renders these findings of low probative value as to Veteran's ranges of motion at that time, even assuming for the sake of argument that these ambiguous statements could have represented affirmative ranges of motion that were taken during flare-ups in the severity of the condition, in this case the Veteran denied flare-ups both at the earlier February 2017 VA examination and at the July 2019 VA examination just several months after the December 2018 and March 2019 treatment sessions.) For the period from July 23, 2019, the Board finds that a rating higher than 20 percent is not warranted. To support a higher rating, the evidence must show forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Here, the evidence has not shown a severity akin to forward flexion 30 degrees or less, and the Veteran's spine has never been found to have ankylosis. Accordingly, entitlement to a higher rating for lumbar strain is not warranted at any point during the appeal period. The Board acknowledges the Veteran's contention that his additional diagnoses relating to his lumbar spine should warrant a higher evaluation. Regarding the Veteran's radiculopathy, this associated objective neurologic abnormality will be addressed in the Remand section below. As to the additional diagnosis within the spine, however, even if the new diagnoses were shown to be related to the Veteran's service-connected lumbar strain, the rating criteria ultimately provide compensation based on the functional limitation resulting from a disability, rather than providing compensation based purely on the existence of a diagnosed condition. See 38 C.F.R. § 4.1, 4.10. The Board is cognizant of the functional limitations described by the Veteran that he experiences in his daily life and has taken them into account in adjudicating the evaluation warranted by the evidence. However, the Board is bound to apply the rating criteria as written, and in this case the evidence does not support a severity warranting a higher rating at any point. A rating higher than 10 percent before July 23, 2019, and a rating higher than 20 percent from July 23, 2019, is denied. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5237. REASONS FOR REMAND 2. Service Connection for Radiculopathy of the Bilateral Lower Extremities Under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormality, such as radiculopathy, should be separately evaluated under an appropriate DC. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In this case, the RO obtained opinions that the Veteran's radiculopathy of the bilateral lower extremities is not proximately due to his service-connected lumbar strain, but did not obtain an opinion whether the radiculopathy may be aggravated by the service-connected lumbar strain. Once VA undertakes the effort to provide an opinion, it must provide an adequate once, Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), and here, the secondary opinion was inadequate for failing to also consider whether there is secondary aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Accordingly, an addendum opinion will be obtained. 3. Service Connection for Hypertension The Veteran has contended that his hypertension may be secondary to his service-connected diabetes, or directly due to his presumed exposure to herbicide agents during service in Vietnam, a fact conceded by VA. As to a connection to diabetes, the Veteran was provided an examination and opinion regarding whether hypertension is proximately due to diabetes, but was not provided an opinion regarding whether hypertension may be aggravated by diabetes. An addendum opinion will be obtained to address this alternative etiology. See El-Amin, 26. Vet. App. at 140-41. As to a connection to exposure to herbicide agents, the Veteran has cited the research by the National Academy of Sciences finding a "sufficient" level of evidence linking hypertension and exposure to herbicide agents. Given this indication of a link between the Veteran's current hypertension and his herbicide exposure, an opinion should be provided. McLendon v. Nicholson, 20 Vet. App. 79, 83, 86 (2006) (applying 38 U.S.C. § 5103A(d)); see also 38 C.F.R. § 3.159(c)(4); cf. Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). Accordingly, the matter is REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the Veteran's radiculopathy of the bilateral lower extremities. It is left to the discretion of the clinician whether a new examination is needed. The clinician is asked to opine whether the Veteran's diagnosed radiculopathy of the bilateral lower extremities is at least as likely as not aggravated (worsened beyond the natural course of the disease) by his service-connected lumbar strain. 2. Obtain an addendum opinion regarding the etiology of the Veteran's hypertension. It is left to the discretion of the clinician whether a new examination is needed. The clinician is asked to opine on all of the following: (a) Is it at least as likely as not that the Veteran's hypertension is related to the Veteran's conceded exposure to herbicide agents? The examiner must consider and discuss the finding of the National Academy of Sciences that the totality of the evidence and literature constitutes "sufficient evidence of an association" between hypertension and herbicide agent exposure. (b) Is it at least as likely as not that the Veteran's hypertension was aggravated (worsened beyond the natural course of the disease) by his service-connected diabetes? 3. After the above development and any other development deemed necessary is completed, readjudicate the Veteran's claims. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.