Citation Nr: 21074816 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 15-37 274 DATE: December 16, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. Entitlement to a rating in excess of 10 percent for right ankle injury, right heel, and tendonitis is denied. REMANDED Entitlement to a rating in excess of 10 percent for residuals of surgery (other than scars) for De Quervain's Syndrome of the right upper extremity is remanded. Entitlement to service connection for human immunodeficiency virus (HIV) is remanded. Entitlement to service connection for hepatitis C is remanded. FINDINGS OF FACT 1. Even when considering functional impairment due to factors such as pain, weakness, fatigability, incoordination, or pain on movement, flare up, or repetitive use over time, the Veteran's service-connected degenerative disc disease of the lumbar spine did not manifest in forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine or require bed rest prescribed by a physician. 2. Even when considering functional impairment due to factors such as pain, weakness, fatigability, incoordination, or pain on movement, flare up, or repetitive use over time, the Veteran's service-connected right ankle disability was not manifested by marked limited motion or ankylosis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for a rating in excess of 10 percent for right ankle injury, right heel, and tendonitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5024-5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1980 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal of February 2013, January 2015 and October 2020 Department of Veterans Affairs (VA) rating decisions of a Regional Office of the Veterans Benefits Administration (VBA) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed disagreement with these determinations, and the present appeal ensued. The Board, among other actions, remanded the matters on appeal in October 2018 and April 2021. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appealed issues have been returned to the Board for further appellate consideration. 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine 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). When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id. The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Generally, claims pending prior to the effective date will be considered under both old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from the effective date of the change. Lumbosacral spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine ("general rating formula"). 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5235-5242. The General Rating Formula assigns a 40 percent rating when there is forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. 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. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in 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; and/or neurologic symptoms due to nerve root stretching. Id. Intervertebral disc syndrome (IVDS) is rated under the General Rating Formula for Rating Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, DC 5243. When rating IVDS based on incapacitating episodes, A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. An incapacitating episode is defined as a period of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. Id., Note 1. The Board notes that effective February 7, 2021, the spine regulations were amended to state that DC 5243 governing IVDS should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that DC 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). The Board notes that this change does not impact the evaluation in this case as the Veteran does not have any evidence of incapacitating episodes that would warrant a compensable rating under DC 5243. Analysis The report of a January 2013 VA back conditions examination noted diagnoses of thoracolumbar degenerative disc disease and IVDS of the lumbar spine. The Veteran reported flare-ups, described as a burning sensation and stiffness. Range of motion testing revealed forward flexion to 80 degrees, with objective evidence of painful motion at endpoint. The Veteran was able to perform repetitive-use testing, but flexion was additionally limited to 55 degrees. Contributing factors to disability included less movement than normal, weakened movement, and pain on movement. There was objective tenderness on palpation at T6-S4. The Veteran did not have guarding or muscle spasm of the spine. Muscle strength and deep tendon reflexes were normal. The Veteran had IVDS but had not had any incapacitating episodes over the past 12 months due to IVDS. The Veteran regularly used a back brace. At a November 2019 VA back examination, the Veteran reported her pain level was 10 out of 10 at times. She could not vacuum or sweep. She could not go up and down the stairs secondary to pain. Treatment included Tramadol and muscle relaxants. The Veteran reported more pain and stiffness during a flare-up. She reported that functional impairment during a flare-up includes difficulty walking, standing, and running. Range of motion testing revealed forward flexion to 90 degrees. Passive range of motion was the same as active range of motion. No pain was noted on exam, including during weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion. The examiner noted that the Veteran was not being examined immediately after repetitive use over time or during a flare-up. The examiner opined that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, and lack of endurance significantly limited functional ability with repeated use over a period of time. However, forward flexion was not additionally reduced over a period of time. Pain, fatigue, and weakness significantly limited functional ability with flare-ups; however, forward flexion was not additionally limited. The Veteran did not have guarding or muscle spasm of the back. Muscle strength, deep tendon reflexes, and sensation was normal. There was no ankylosis of the spine. The Veteran did not have IVDS. She did not use assistive devices. Based on the foregoing, the Board finds that the criteria for the next higher, 40 percent rating are not more nearly met or approximated. Specifically, the evidence did not reflect forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. At worst, the Veteran's forward flexion was limited to 55 degrees. No ankylosis has been shown. Although the 2013 examiner noted a diagnosis of IVDS, she has not been shown to require bed rest prescribed by a physician. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, and pain characterized as severe at times. However, the evidence does not suggest that the degree of additional limitation would result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Indeed, the November 2019 VA examiner opined that functional impairment or flare-ups would not additionally limit forward flexion of the spine. Further, while the Veteran, as a layperson, is competent to report the symptoms she has experienced; however, she has not been shown to have the requisite knowledge or training to be deemed competent to identify a specific level of disability for her lumbar spine disability according to the rating criteria, which is a medically complex determination that cannot be based on lay observation alone. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In sum, a rating in excess of 20 percent for degenerative disc disease of the lumbar spine is not warranted, and the claim must be denied. 2. Entitlement to a rating in excess of 10 percent for right ankle injury, right heel, and tendonitis is denied. The Veteran's right ankle disability has been rated under 38 C.F.R. § 4.71a, DC's 5099-5024. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 5024 pertains to tenosynovitis, and the code notes it will be rated as degenerative arthritis. Under the new rating criteria, DC 5024 was reworded, but did not substantially change under the revised regulation. Degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, DC 5003. For the right ankle, this includes rating the Veteran's condition under DCs 5270-5274 under 38 C.F.R. § 4.71a. Under the new rating criteria, DC 5270 and 5272 to 5274 remained unchanged. DC 5270 pertains to ankylosis of the ankle. DC 5272 provides the rating criteria for subastragalar or tarsal joint ankylosis. DC 5273 provides the rating criteria for malunion of the os calcis or astragalus. And finally, DC 5274 provides that a 20 percent disability rating is warranted for astragalectomy. In this case, the Veteran does not have ankylosis, subastragalar or tarsal joint ankylosis, malunion of the os calcis or astragalus, or astragalectomy of the right ankle. The Veteran's only ratable limitation of motion for her right ankle is found under DC 5271. There, a 10 percent rating contemplates moderate limitation of motion of the ankle. See 38 C.F.R. § 4.71a, DC 5271. In order to warrant a higher 20 percent rating, marked limitation of motion is required. Id. Normal ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantarflexion. 38 C.F.R. § 4.71a, Plate II. Prior to the February 7, 2021 musculoskeletal rating revisions, the words "moderate" and "marked" used in DC 5271 were not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board was required to evaluate all the evidence, to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. However, from February 7, 2021 "moderate" limitation of motion is reflected by less than 15 degrees dorsiflexion or less than 30 degrees plantarflexion; whereas, "marked" limitation of motion is reflected by less than 5 degrees dorsiflexion or less than 10 degrees plantarflexion. As such, the rating criteria for the Veteran's right ankle condition is relatively unchanged and the Board will proceed with adjudication. At a January 2013 VA ankle conditions examination, the examiner diagnosed right ankle achilles tendonitis and degenerative joint disease. The Veteran reported flare-ups, described as stiffness and tight, nagging pain. Range of motion testing revealed dorsiflexion to 20 degrees and plantar flexion to 45 degrees. No pain was noted on exam. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion. The Veteran had localized tenderness or pain on palpation of joints/soft tissue of the ankle. Muscle strength testing was normal. There was no ankylosis. Joint stability testing was negative. At a November 2019 VA ankle conditions examination, the Veteran that her ankle hurt when she walked. She complained of pain in the arch, heel, and Achilles tendon. She denied any treatment, medications, or surgery. The Veteran described her flare-ups as having more pain. Functional impairment included more difficulty walking and standing. Range of motion testing revealed dorsiflexion to 20 degrees and plantar flexion to 45 degrees. Passive range of motion was the same as active. No pain was noted on exam. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight bearing or in non-weight bearing. There was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion. The Veteran was not being examined immediately after repetitive use over time or during a flare-up. The examiner opined that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during a flare-up. The examiner stated that pain, weakness, fatigability, and lack of endurance significantly limited functional ability with repeated use over a period of time. However, range of motion would not be reduced. Additionally, pain, fatigue, and weakness significantly limited functional ability with flare-ups; however, range of motion was not reduced. Muscle strength testing was normal. There was no ankylosis. Ankle instability or dislocation was not suspected. Based on the foregoing, the Board finds that the evidence of record does not more nearly approximate the criteria for the next higher, 20 percent rating. The Veteran's range of motion on testing has been normal. See 38 C.F.R. § 4.71a, Plate II. The Board has considered the Veteran's reported pain requiring limitation in standing and walking, but finds that such limitation would not result in more than moderate limitation in motion. Moreover, while the Veteran is competent to report the symptoms she has experienced, she has not been shown to have the requisite knowledge or training to be deemed competent to identify a specific level of disability for her ankle disability according to the rating criteria, which is a medically complex determination that cannot be based on lay observation alone. Jandreau, 492 F.3d at 1377, 1377 n.4. In sum, a rating in excess of 10 percent for right ankle injury, right heel, and tendonitis is not warranted, and the claim must be denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for residuals of surgery (other than scars) for De Quervain's Syndrome of the right upper extremity is remanded. In April 2021, the Board remanded this appeal for readjudication contemplating the changes to VA's rating schedule pertaining to musculoskeletal disabilities. Despite this, the issue is not included in a subsequent rating decision or in the August 2021 supplemental statement of the case (SSOC). A remand is required for the AOJ to issue a SSOC. Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 2. Entitlement to service connection for HIV is remanded. 3. Entitlement to service connection for hepatitis C is remanded. In its April 2021 remand, the Board determined that an examination was warranted for the Veteran's claims for HIV and hepatitis C. The Board instructed the AOJ to obtain a medical opinion with supporting rationale addressing whether the Veteran's HIV and/or hepatitis at least as likely as not developed secondary to an in-service risk factor, including unprotected sex. A July 2021 VA examination report contains negative etiological opinions. Regarding both diseases, the examiner stated that the Veteran served from 1980 to 1983 and reported street drug use in the past. The examiner also noted that the Veteran was not diagnosed with HIV until 2009 and hepatitis C until 2012, "therefore a nexus cannot be established." The Board finds this opinion to be inadequate. The examiner failed to discuss the importance of the in-service risk factors, including unprotected sex. The Board notes that a rationale based on a lapse of time alone is inadequate. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015). Therefore, a new examination is warranted and additional etiological opinions must be obtained. The matters are REMANDED for the following action: 1. The AOJ must obtain a medical opinion with supporting rationale addressing whether the Veteran's HIV and/or hepatitis at least as likely as not developed secondary to an in-service risk factor, including unprotected sex. The examiner is advised that a lapse of time between service and diagnosis is an insufficient rationale. A full rationale citing facts pertinent to the Veteran and evidenced in the file, to include her lay statements, must be provided with each opinion rendered. 2. Thereafter, the AOJ must readjudicate the claims of entitlement to service connection for HIV and hepatitis C, as well as the claim for increased rating for residuals of surgery (other than scars) for De Quervain's Syndrome of the right upper extremity. If a decision is adverse to the Veteran, provide her and her private attorney a copy of the readjudication and afford them an ample opportunity to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Roya Bahrami, 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.