Citation Nr: 21072312 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-22 725 DATE: December 2, 2021 ORDER Entitlement to an increased disability rating in excess of 40 percent, from December 14, 2015, for intervertebral disc syndrome of the lumbar spine (IVDS) is denied. From August 20, 2010, entitlement to an initial compensable disability rating of 10 percent, but no higher, for hypertension is granted. Entitlement to service connection for residuals of a right eye disability is denied. FINDINGS OF FACT 1. During the period on appeal, from December 14, 2014, the Veteran's IVDS did not manifest in unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 2. During the entire initial rating period on appeal, from August 20, 2010, the Veteran's hypertension manifested primarily as a history of diastolic pressure predominantly 100 millimeters (mm.) or more requiring continuous medication for control, and did not manifest as diastolic pressure predominantly 110 mm. or more or systolic pressure predominantly 200 mm. or more. 3. The preponderance of the evidence is against finding that residuals of a right eye disability began during active service or are otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 40 percent for service connected IVDS have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a); 38 C.F.R. §§ 3.400, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5243. 2. Resolving all reasonable doubt in the Veteran's favor, for the entire initial rating period on appeal, from August 20, 2010, the criteria for an initial disability rating of 10 percent, but no higher, for the service connected hypertension have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.10, 4.21, 4.104, Diagnostic Code 7101. 3. The criteria for service connection for residuals of a right eye disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1981 to June 1993, and from November 2001 to June 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision for his IVDS, a November 2012 rating decision for his hypertension, and a July 2012 rating decision for his right eye disability. The Board notes that the Veteran initially requested a hearing before a Veterans Law Judge via videoconference with regard to his low back, but later indicated he was satisfied with the record and wished to proceed. He also stated that he did not want a hearing in perfecting his other appeals. A prior Board decision in February 2019 reopened the Veteran's service connection claim for the right eye and denied an increased rating for his low back prior to December 14, 2015. The Board also remanded the remaining low back, hypertension, and right eye claims at that time. The Veteran did not appeal this decision to the United States Court of Appeals for Veterans Claims (Court); therefore, the Board does not have jurisdiction over the low back claim prior to December 14, 2015. The Board remand instructed the Regional Office to obtain new VA examinations. The Board finds that the remand directives have been satisfied and the instant matter is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The schedular rating for the musculoskeletal system was updated in February 2021. However, the section of 38 C.F.R. § 4.71a that governs the lumbar spine was not affected. Likewise, 38 C.F.R. § 4.104 has been updated over the period on appeal; however, diagnostic code 7101 was not affected. The Veteran filed a claim for total disability due to individual unemployability (TDIU) in December 2015. His claim for TDIU was granted in connection to his lumbar spine disability in an August 2016 rating decision, effective December 2015. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). 1. Entitlement to an increased disability rating in excess of 40 percent from December 14, 2015 for IVDS is denied. The Veteran asserts that he is entitled to an increased rating for his IVDS of the lumbar spine in excess of 40 percent. He was awarded a rating for IVDS in an August 2016 rating decision. He was granted service connection as of the date of his claim, December 24, 2015, and appealed the Regional Office's decision to the Board. The Board then remanded the claim for a new VA examination. IVDS can be found in 38 C.F.R. § 4.71a, Diagnostic Code 5243. Although this regulation was updated in 2021, none of the updates are relevant to this claim. The Board will address each formula for the period on appeal below. The Veteran has had two VA examinations for his lower back during the period on appeal, the first in June 2015 and the second in January 2020. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes IVDS can be found in 38 C.F.R. § 4.71a, Diagnostic Code 5243. The IVDS Rating Formula provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. The first VA examination found that he had IVDS as diagnosed by his doctor. He had an episode of bedrest of one week but not more than two weeks over the previous 12 months. Using the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Veteran would have been entitled to a 10 percent rating for "incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months." General Rating Formula for Diseases and Injuries of the Spine The general rating formula for the spine, in relevant part, is as follows: Unfavorable ankylosis of the entire thoracolumbar spine 50 percent, ... forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40 percent. 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 20 percent. 38 C.F.R. § 4.71a. It was after the Veteran's June 2015 VA examination that he was awarded a 40 percent rating for IVDS, as the Regional Office used the General Rating Formula for Diseases and Injuries of the Spine. His rating was based on his forward flexion of 20 degrees and 15 degrees after repetitive use. He was not entitled to the next highest rating of 50 percent because "unfavorable ankylosis of the entire thoracolumbar spine" was not present. The most recent VA examination report in January 2020 found that the Veteran did not have IVDS or episodes requiring bed rest. He did not have unfavorable ankylosis of the entire thoracolumbar spine and his forward flexion was 60 degrees. No neurological abnormalities were noted. The Board has considered that the Veteran wears a back brace. However, since the back brace was shown to be used to reduce low back pain and not to address any functional impairment that may be equivalent of ankylosis, the Board finds that the Veteran is still able to mobilize his low back. See Chavis v. McDonough, 34 Vet. App. 1, 2021 U.S. App. Vet. Claims LEXIS 660, 25-34 (April 16, 2021). Therefore, an even higher rating is not warranted for this reason. The private treatment records outline the etiology of the Veteran's back injury, his current pain, and symptoms; however, they do not address his range of motion. The fact that he has a back injury or the cause of that injury is not at issue in this claim. The private treatment records do not further illustrate the severity of his lower back disability other than to state that he is in pain. His pain has been considered in his current rating. Likewise, the Veteran's statements submitted in support of his claim, as well as his Regional Office testimony, focus on the origins of his accident as opposed to the severity of his lumbar spine disability. As such, the Board gives them little probative weight. Other Rating Factors In addition, when VA evaluates musculoskeletal disabilities under the Rating Schedule, it must determine whether or not the factors listed in 38 C.F.R. §§ 4.40, 4.45, and 4.59 are properly accounted for within the applicable DC criteria. Under section 4.40, VA must consider whether there is evidence of functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2001). Pain on movement, standing alone, is not sufficient to warrant a higher rating under section 4.40. Id. (reaffirming that pain must affect some aspect of "the normal working movements of the body... in order to constitute functional loss"). Section 4.45 expands upon the concept of functional loss, noting six factors that VA must consider when evaluating a disability, namely: (1) less or (2) more movement than is normal; (3) weakened movement; (4) excess fatigability; (5) incoordination; and (6) pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing, to include during flare ups or after repetitive use. 38 C.F.R. § 4.45. Noticeably, the aspects of functional loss listed in section 4.40 closely parallel the factors listed in section 4.45. Section 4.45 applies to muscles, nerves, as well as the entire musculoskeletal system. DeLuca v. Brown, 8 Vet. App. 202, 207 (1995). Under section 4.59, a veteran may be awarded the minimum compensable evaluation available under a given musculoskeletal DC, even if application of that DC would not support a compensable evaluation, where there is evidence of "actually painful, unstable, or malaligned joints." 38 C.F.R. § 4.59; Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). Section 4.59 does not require medical evidence; it may be satisfied with lay and other non-medical evidence. Id. at 428. Thus, pain alone is compensable under section 4.59 for joint disabilities in general. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Mitchell and the Deluca factors were considered above and were factored into the rating awarded. As the examiner considered flare-ups, conducted repetitive use testing, and calculated range of motion changes and the Board considered them in reviewing the Veteran's rating, 4.40 and 4.45 have been included in his award. Furthermore, section 4.59 is not applicable because the Veteran has already been awarded the minimum compensable rating. As there is no basis to increase his award, his rating claim is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an initial compensable disability rating of 10 percent for hypertension is granted. The Veteran asserts that he is entitled to a compensable rating for his hypertension. He was awarded a noncompensable rating effective August 20, 2010, in a November 2013 rating decision. He was notified of this decision in a letter sent on November 22, 2013. He then filed a timely appeal. A statement of the case was then issued in September 2017, and the Veteran submitted a VA Form 9 to perfect his appeal. As a result, the period on appeal is from August 20, 2010, the day he filed his claim. Hypertension can be found in 38 C.F.R. § 4.104, DC 7101. Under Diagnostic Code 7101, a 10 percent rating is assigned for diastolic blood pressure predominately 100 or more, or; systolic blood pressure predominantly 160 or more, or; is the minimum rating for an individual with a history of diastolic blood pressure predominantly 100 or more who requires continuous medication for control. A 20 percent disability rating is assigned for diastolic readings of predominantly 110 or more or systolic readings of 200 or more. A 40 percent disability rating is assigned for diastolic readings of predominantly 120 or more. A 60 percent disability rating is assigned for diastolic readings of predominantly of 130 or more. 38 C.F.R. § 4.104 The notes to DC 7101 state: "...isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm." 38 C.F.R. § 4.104. The Veteran has had several VA examinations for his hypertension over the period on appeal, in November 2012, May 2019, and January 2020. The Veteran's blood pressure readings in the November 2012 examination were: 148/88, 142/92, and 144/94. His blood pressure readings in the May 2019 examination were: 132/84, 129/79, and 125/73. His average blood pressure reading was 129/79 and each reading was taken fifteen minutes apart. His blood pressure readings in the January 2020 examination were: 156/99, 130/80, 153/97. His blood pressure readings at these examinations do not meet the 10 percent criteria under § 4.104. A private examination from October 2018 provided the following readings: 137/91 from February 6, 2002; 138/101 from July 21, 2001; 147/91 from April 5, 2002; 166/110 from April 27, 2018; 152/100 from February 13, 2018; 150/96 from March 24, 2017. These readings show that the Veteran has hypertension. However, the first set of three are from outside the period on appeal. The second set of readings are from the period on appeal, but they fail to meet the 10 percent criteria under § 4.104. The Veteran's diastolic pressure must be 100m or more on three different dates. Although two out of the three readings were 100mm. or more, his diastolic pressure viewed with the readings from his VA examination reports show that his diastolic pressure was not predominately 100mm. or more. Similarly, systolic pressure was only over 160mm. once during the private examination, and when viewed in the context of other readings taken at his VA examinations, his systolic pressure was not predominately over 160mm. However, past VA and private treatment records reveal multiple instances where the Veteran's diastolic blood pressure was 100mm. or more. These readings and the continuous use of medication to control his blood pressure meets the requirements for an initial 10 percent disability rating. However, the Veteran is not entitled to the next highest rating because his diastolic pressure is not predominantly 110mm. or more, and his systolic pressure is not predominantly 200mm. or more. Accordingly, the preponderance of the evidence demonstrates that the Veteran is entitled to an initial disability rating of 10 percent, but no higher, for the service connected hypertension for the entire initial period on appeal from August 20, 2010. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 the so-called "nexus" requirement. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Furthermore, in deciding 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 (2014); 38 C.F.R. § 3.102 (2018); 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 the matter, the benefit of the doubt will be given to the Veteran. Id. 3. Entitlement to service connection for residuals of a right eye disability is denied. The Veteran asserts that he has residuals as a result of right eye injuries while playing baseball in 1983 and while playing basketball in 1990. The Veteran was diagnosed with ocular contusion OD in 1983 and an upper eyelid laceration in 1990. His treating eye doctor stated as follows: "There is no abnormality in his external, pupil or motility evaluation. Microscopic examination shows no evidence or angle recession[;] however, there is slightly more nuclear sclerosis of the lens on the right than on the left. He is essentially asymptomatic for this at this time." See Dr. H.B. February 2012 Report. He asserts that his cataracts and ptosis, or drooping right eyelid, are residual of his in-service injuries. The Veteran is currently diagnosed with a right eye cataract. See June 2020 VA Examination. Although he asserts that he has a drooping right eyelid, there is no medical evidence diagnosing him with ptosis or proptosis. There is also no evidence of clinical dry eye or insufficient tear film. See June 2020 VA Examination. Nonetheless, the Veteran has still satisfied the first element of service connection due to his diagnosis of right eye cataracts. He has also met the second element of service connection due to the injuries he sustained to his face while in service. Unfortunately, the Veteran has not met the third element of service connection, as there is no nexus between his current cataract disability and his acute and transitory disabilities from service. Specifically, the Veteran presented to a December 2019 VA examination, in which a VA examiner found that the Veteran had "trace nuclear sclerotic cataract that is not visually significant; he is 20/20 best corrected both eyes. There is no evidence of traumatic cataract." The most recent VA examination in June 2020 elaborated that the Veteran's cataract "occurs in the general population and is due to aging . . . His level of severity of nuclear sclerotic cataract both eyes is none. There is no effect on vision. There is no evidence of traumatic cataract both eyes. The Veteran has age appropriate presentation of nuclear sclerotic cataract both eyes." As such, the Veteran's claim for service connection for right eye residuals is denied because there is no nexus between his in service injuries and his current disability. The Veteran asserted at his hearing with the Regional Office that he was hit in the right eye by a baseball during service. He asserts that he has dry eye and blurry vision as a result. While he is competent to convey his symptoms to the Board, he is not competent to diagnose himself with an eye disability or determine the etiology of an eye disability, as it is medically complex requiring specialized knowledge. The Board finds that the VA medical examinations are more probative evidence and that there is no nexus or link between the Veteran's current eye disability and his service. As a result, his claim is denied. (Continued on the next page) In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). E. BLOWERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.