Citation Nr: 21074258 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-50 672 DATE: December 14, 2021 ORDER An initial rating in excess of 10 percent for residuals of lumbar strain is denied. REMANDED Entitlement to service connection for a stomach condition is remanded. Entitlement to service connection for a colon condition is remanded. THE VETERAN'S CONTENTIONS In January 2014, the Veteran contended that his residuals of lumbar strain were more severe than was shown by his most recent VA examination; and that he met the requirements for a higher rating. See January 2014 Notice of Disagreement (NOD). He reported that he had muscle spasms all the time, which greatly restricted his movement and, often his breathing, and required him to lay on the couch until the spasms subsided. He noted that he had been wearing back braces since his accident while on active duty in Vietnam. He also reported that, while he was working, his back would go out at least once per month, and that he missed two to five days of work twice per year due to his back condition. Id. In October 2016, he reported that his back had gotten worse, and that when he had a flare-up, he could not move and spent days in bed or lying on the couch. He stated that he had to be careful bending and lifting the smallest object. See October 2016 VA Form 9. FINDING OF FACT The evidence does not show that the Veteran's service-connected lumbar spine disability resulted in intervertebral disc syndrome (IVDS); forward flexion of the thoracolumbar spine being less 60 degrees; the combined range of motion of the thoracolumbar spine being less 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. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for residuals of lumbar strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a; DCs 5235-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1965 to September 1967, including service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2013 and September 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019 and January 2021, the instant appeal was remanded by the Board. In regard to the Veteran's claim for an initial rating in excess of 10 percent for residuals of lumbar strain, the July 2019 and January 2021 Board decisions found that a remand was warranted in order to evaluate the severity of the Veteran's condition. Initially, the Veteran did not report for the VA examination scheduled in December 2019 to evaluate his back condition. See December 2019 Exam Scheduling Request Cancellation. Pursuant to 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. An initial rating claim is classified as an original compensation claim under 38 C.F.R. § 3.655(b). In December 2020, the Veteran sought to reschedule his VA examination. See December 2020 Written Brief Presentation. However, in June 2021, the Veteran stated that he did not want to report for a VA examination and requested that the Veterans Benefits Administration evaluate his claim based on the evidence of record. See June 2021 Report of General Information. Accordingly, the Board will evaluate the Veteran's lumbar spine disability based on the evidence of record as it currently stands. Increased Rating for the Lumbar Spine The Veteran's residuals of lumbar strain are currently rated 10 percent disabling under 38 C.F.R. § 4.71a; DC 5237. The Veteran seeks a higher initial rating. Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as "staging the ratings." Fenderson v. West, 12 Vet. App. 119 (1999). The criteria for rating all disabilities of the spine are set forth in 38 C.F.R. § 4.71a, which provides that spine disabilities are to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. In this case, the evidence of record does not show a diagnosis of IVDS. See October 2013 Radiology Report from The Imaging Centers; June 2013 VA Back Conditions Examination Report. Further, although the Veteran mentioned having to spend days in bed during flare-ups of his lumbar spine disability, there is no evidence of record indicating that this bedrest was prescribed by a physician. Accordingly, the Board may not consider these incidents as incapacitating episodes under the IVDS Formula. See 38 C.F.R. § 4.71a, DC 5243, Note (1). As the IVDS Formula is not applicable in this case, the Board will evaluate the Veteran's lumbar spine disability pursuant to the General Rating Formula. The General Rating Formula for disabilities of the spine provides in pertinent part, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, A 10 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height a 20 percent evaluation 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 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 evaluation 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 evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Formula. Additionally, the notes listed below shape how VA is to apply the General Rating Formula: Note (1) Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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 (0 degrees) always represents favorable ankylosis. Id. Turning to the evidence of record, the Board finds that an increased rating of 20 percent rating is not warranted under the General Rating Formula. In support of this determination, the Board first notes that a June 2013 VA back conditions examination showed forward flexion of the thoracolumbar spine to 70 degrees and a combined range of motion of the thoracolumbar spine of 190 or more. The examiner's range of motion testing findings included no additional loss of motion when including painful motion. Further, range of motion was the same after repetitive use testing. In addition, the examiner noted that guarding and/or muscle spasm were present, but did not result in abnormal gait or spinal contour. On this occasion, the Veteran reported flare-ups with lifting in excess of 25 pounds, twisting the wrong ways, bending or stooping, sitting or standing in excess of one hour, and walking in excess of two city blocks. He stated that the flare-ups caused pain, but did not cause weakness, fatigability, or incoordination. The examination report noted that the Veteran did not describe any additional range of motion loss due to pain on use during flare-ups. Separate from the June 2013 VA back conditions examination report, VA and private medical records showed no evidence that forward flexion of the thoracolumbar spine was limited below 60 degrees during the claim period. Additionally, VA and private medical records associated with the claims file did not indicate that: (1) the combined range of motion of the thoracolumbar spine was limited to 120 degrees or less; or (2) muscle spasm or guarding was severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Lastly, the Board notes that a December 2011 VA internal medicine note documented that the Veteran had full range of motion of the back. Similar results were recorded in a November 2013 VA primary care note. In sum, as the Veteran's lumbar spine disability did not (1) limit forward flexion of the thoracolumbar spine to 60 degrees or less; (2) result in a combined range of motion of 120 degrees or less; or (3) produce muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis during the claim period, a rating greater than 10 percent is not warranted under the General Rating Formula. See 38 C.F.R. § 4.71a. Thus, the Veteran's appeal is denied. In denying the Veteran's appeal, the Board has also considered whether the Veteran has any neurologic abnormalities associated with his lumbar spine disability. See id., Note (1). The Board acknowledges that radiculopathy was noted in a December 2013 VA treatment record. However, the June 2013 VA examination report indicated that the Veteran did not experience radiculopathy or any other neurologic abnormalities. Further, the Veteran did not contend during the claim period that he has radiculopathy of any other neurological abnormality associated with his residuals of lumbar strain. Accordingly, the Board concludes that despite the December 2013 VA treatment record, a preponderance of the evidence does not indicate that the Veteran experienced radiculopathy as secondary to the service-connected lumbar spine disability. Thus, the Board declines to assign any separate ratings for associated neurologic abnormalities. REASONS FOR REMAND As indicated above on the first page of this decision, the Board finds that the issues of entitlement to service connection for stomach and colon conditions must be remanded. In requesting remand, the Board first notes that, in December 2019, a VA physician assistant provided a medical opinion in which she determined that the Veteran's stomach and colon conditions were less likely than not related to his service, to include his herbicide exposure in service. The January 2021 Board remand directed that a VA examination be obtained to determine the nature and etiology of the Veteran's stomach and colon conditions. However, in June 2021, the Veteran stated that he did not want to report for a VA examination and requested that the Veterans Benefits Administration evaluation his claim based on the evidence of record. See June 2021 Report of General Information. As such, the Board will not order another VA examination to address these service connection issues. Yet, the Board finds that additional VA medical opinions are necessary with respect to the Veteran's stomach and colon issues as the December 2019 VA medical opinion did not address whether the Veteran's current stomach and colon symptoms are related to exposure to DDT spray in service, or whether they are secondary to his service-connected PTSD. See December 2020 Written Brief Presentation; April 2014 Veteran Correspondence. Thus, remand of the issues of service connection for stomach and colon conditions is warranted. In ordering remand, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the clinician on remand consider the Veteran's own descriptions of the history of his stomach and colon conditions. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: Forward the Veteran's claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran's stomach and colon conditions. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. Thereafter, the clinician should address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that any current stomach or colon condition had its onset in, was caused by, or is otherwise related to the Veteran's service, In providing an opinion in response to part (a), please explicitly address the Veteran's contentions that he experiences current conditions of the stomach and/or colon because of in-service exposure to Agent Orange and other herbicide agents, and DDT. (b.) Please state whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any current stomach or colon condition was caused by the Veteran's service-connected PTSD. (c.) Please state whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any current stomach or colon condition was aggravated beyond its natural progression (even temporarily) by the Veteran's service-connected PTSD. For the purpose of providing the opinions requested in parts (a) through (c), please accept as valid the Veteran's statements that his symptoms began shortly after a bug spray machine was stored next to the electrical generators he was assigned to during service; that the area he was assigned to was engulfed in DDT smoke from the above-mentioned machine; and that he has had continuing problems with his stomach and bowels since his Vietnam service. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making a preliminary assessment of the credibility of his statements). In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. N. PETTINE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.