Citation Nr: 21076289 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-09 725 DATE: December 23, 2021 ORDER Entitlement to an increased disability rating of 40 percent for degenerative arthritis of the lumbar spine with intervertebral disc syndrome (IVDS) from March 11, 2014 to February 3, 2020 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an increased disability rating higher than 40 percent for degenerative arthritis of the lumbar spine with IVDS for the entire appeal period is denied. Entitlement to an increased disability rating of 30 percent, but no higher, for esophagitis is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. From March 11, 2014 to February 3, 2020, the symptoms of the Veteran's service-connected degenerative arthritis of the lumbar spine with IVDS more nearly approximated forward flexion of 30 degrees or less when considering flare-ups, but the symptoms did not more nearly approximate for the entire appeal period ankylosis or incapacitating episodes having a total duration of at least six weeks during the past 12 months. 2. Throughout the appeal period, the Veteran's esophagitis symptoms more nearly approximated persistent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal arm or shoulder pain, productive of considerable impairment of health, but did not more nearly approximate pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. CONCLUSIONS OF LAW 1. From March 11, 2014 to February 3, 2020, the criteria for an increased disability rating of 40 percent for degenerative arthritis of the lumbar spine with IVDS are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.71a, Diagnostic Codes (DCs) 5242-5237. 2. For the entire appeal period, the criteria for an increased disability rating higher than 40 percent for degenerative arthritis of the lumbar spine with IVDS are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.71a, DCs 5242-5237. 3. The criteria for an increased disability rating of 30 percent, but no higher, for esophagitis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.114, DC 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to March 1981 and April 1981 to November 1994. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, continued the 10 percent evaluation for degenerative arthritis of the lumbar spine with IVDS and the noncompensable evaluation for esophagitis. The Veteran timely appealed these matters. In January 2017, the AOJ increased the noncompensable evaluation for esophagitis to 10 percent, effective January 3, 2017. This created a staged rating. As the Veteran has not indicated satisfaction with this disability rating, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). In September 2019, the Board remanded the Veteran's claims for further development. The Agency of Original Jurisdiction (AOJ) has substantially complied with the Board's remand instructions by obtaining outstanding treatment records and, as demonstrated by the discussion below, obtaining VA examinations that are adequate to decide the claims. Thus, no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). In August 2020, the AOJ increased the 10 percent evaluation for degenerative arthritis of the lumbar spine with IVDS to 40 percent, effective February 3, 2020. This created a staged rating. As the Veteran has not indicated satisfaction with this disability rating, the issue remains on appeal. AB, 6 Vet. App.at 39. Disability ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Court has emphasized that when assigning a disability rating it is necessary to consider limitation of a joint's functional ability due to flare-ups, fatigability, incoordination, and pain on movement, or when it is used repeatedly over a period of time, functional loss due to flare-ups, fatigability, incoordination, and pain on movement. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). In Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Entitlement to an increased disability rating for degenerative arthritis of the lumbar spine with IVDS The Veteran's service-connected degenerative arthritis of the lumbar spine with IVDS was evaluated as 10 percent disabling, effective December 1, 1994, when he filed the claim for an increased rating for this disability on March 11, 2014, and is now evaluated as 40 percent disabling, effective February 3, 2020, under DCs 5242-5237. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Here, the use of DCs 5242 and 5237 reflects that the Veteran's degenerative arthritis of the lumbar spine with IVDS is partially described as degenerative arthritis, degenerative disc disease other than IVDS under DC 5242 and that the rating assigned is based on lumbosacral strain under DC 5237. Disabilities rated under DCs 5237 and 5242 are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, the following disability ratings apply: A 20 percent rating is warranted for forward flexion of the lumbar spine greater than 30 degrees, but not greater than 60 degrees; combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, if there is 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 requires forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The only higher schedular ratings under the General Rating Formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for unfavorable ankylosis of the entire spine. Note (5) indicates that, 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. Alternatively, under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula), a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician." DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. In a January 2014 letter from a private physician, the physician noted that the Veteran's extension, lateral rotation, and lateral flexion were diminished by 50 percent. During a July 2014 VA examination, the Veteran reported constant daily lumbar pain that he described as a dull tension/tightness, as well as sharp, intermittent lumbar pain that occurred with certain movements and bending. He reported flare-ups of limited lumbar range of motion. There were functional limitations of prolonged standing, prolonged sitting, bending, and lifting/carrying greater than 20 to 25 pounds. Forward flexion was 80 degrees with objective evidence of painful motion at 70 degrees, extension was 30 degrees or greater with objective evidence of painful motion at 30 degrees or greater, right lateral flexion was 20 degrees with objective evidence of painful motion at 20 degrees, left lateral flexion was 25 degrees with no objective evidence of painful motion, and right and left lateral rotation was 30 degrees or greater with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with three repetitions. Post-test forward flexion was 75 degrees, extension was 30 degrees or greater, right lateral flexion was 20 degrees, left lateral flexion was 25 degrees, and right and left lateral rotation was 30 degrees or greater. The Veteran did not experience additional limitation in range of motion following repetitive use testing. There was less movement than normal and pain on movement after repetitive use. The examiner found that she could not specify, if, when, and to what extent in degrees further repetitive testing or flare-ups limited function. There was no ankylosis of the spine. In his October 2014 Notice of Disagreement, the Veteran indicated that he received care and treatment for his back pain symptoms with pain medication, chiropractic care, physical therapy, massage, rolfing, and pain injections. He reported that he had received a pain injection 10 days before his July 2014 VA examination, which leads to less pain and an increase in mobility. The Veteran additionally noted that he experienced back spasms that prevent him from breathing deeply, and that he walked with a limp due to numbness in his upper right leg. During a January 2017 VA examination, the Veteran reported near constant mild low back pain with occasional aggravation from prolonged standing and doing yard work. He did not report flare-ups or functional loss or functional impairment. Forward flexion was 80 degrees, extension was 20 degrees, right and left lateral flexion were 30 degrees, and right and left lateral rotation were 30 degrees. Range of motion did not contribute to functional loss, and no pain was noted on examination. The examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. There was no guarding or muscle spasm and no ankylosis of the spine. The examiner noted that the Veteran ambulated with a normal gait, was in no apparent pain or discomfort, and performed heel to toe, toe to heel walk without difficulty. In a March 2017 letter, a certified advanced Rolfer noted that the Veteran continued to have lower back spasms with significant limitation in his range of motion and function. He experienced increased pain upon forward bending, lateral bending, and rotation of the torso. During a February 2020 VA examination, the Veteran reported constant aching, sharp shooting back across his lower back, with an inability to stand or sit for long periods of time. He noted flare-ups that occur weekly that last three to five days and are moderate to severe. The flare-ups are precipitated by bending, turning, getting up or down from a chair, and stepping. The Veteran additionally indicated he had functional loss or impairment of an inability to stand over 20 to 30 minutes, an inability to walk up more than two flights of stairs, no walking longer than 30 minutes, and no carrying or lifting over 20 pounds. Forward flexion was 30 degrees, extension was 10 degrees, right lateral flexion were 20 degrees, left lateral flexion was 10 degrees, and right and left lateral rotation were 10 degrees. Range of motion contributed to functional loss of limited range of motion due to chronic back pain, and pain was noted on examination and caused functional loss at all ranges of motion. There was no evidence of pain with weight-bearing, but there was objective evidence of pain on non-weight-bearing and passive range of motion. The Veteran was able to perform repetitive-use testing with at least three repetitions, although there was no additional loss of function or range of motion after three repetitions. The examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during flare-ups. Pain significantly limited functional ability with repeated use over time and during flare-ups. This was described in terms of range of motion during repetitive use as forward flexion of 25 degrees, extension of 5 degrees, right lateral flexion of 15 degrees, left lateral flexion of 5 degrees, and right and left lateral rotation of 5 degrees. In regard to flare-ups, the range of motion was described as forward flexion of 20 degrees, extension of 5 degrees, right lateral flexion of 10 degrees, left lateral flexion of 5 degrees, and right and left lateral rotation of 5 degrees. There was no guarding or muscle spasm and no ankylosis of the spine. For the following reasons, an increased disability rating of 40 percent is warranted for degenerative arthritis of the lumbar spine with IVDS from March 11, 2014 to February 3, 2020. The Veteran has reported that he experiences significant flare-ups with increased severity of pain symptoms and spasms and difficulties with prolonged standing, prolonged sitting, bending, and lifting/carrying greater than 20 to 25 pounds. The Veteran is competent to report the severity of these back pain symptoms, and there is nothing in the evidence of record to explicitly contradict his testimony. Jandreau v. Nicholson,492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson,451 F.3d 1331, 1337 (Fed. Cir. 2006). Thus, the Veteran's reports as to his back pain and other symptoms are competent and credible. Moreover, "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). In other words, the Board cannot consider the ameliorative effects of medication unless medication is referenced in the applicable diagnostic code, which is precisely the situation in this case. The Veteran's pain injections prior to the July 2014 VA examination ameliorated the effects of his back pain symptoms. Consequently, the Veteran's back pain symptoms would have remained as severe without the medication. Although range of motion testing conducted in the July 2014 and January 2017 VA examinations did not reflect flexion of the thoracolumbar spine limited to 30 degrees or less, the Veteran has consistently reported significant and frequent flare-ups due to his back pain symptoms. The range of motion findings combined with the other evidence of record, including the Veteran's description of his flare-ups, reflect that the symptoms of the Veteran's lumbar spine disability more nearly approximated forward flexion of 30 degrees or less from March 11, 2014 to February 3, 2020. Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (an "effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the Veteran's disability] first manifested"). VA must also consider whether there is additional functional loss and/or limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination. Chavis v. McDonough, 34 Vet. App. 1 (2021); DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. The Court has noted that the rating criteria define ankylosis in terms of limitation of motion, and that ankylosis is an objective finding, not a diagnosis. 38 C.F.R. § 4.71a, General Rating Formula, Note (5) (ankylosis is a condition in which the spine or a spinal segment is fixed in flexion or extension). The evidence of record here does not reflect that there was unfavorable ankylosis, or its functional equivalent, of the entire thoracolumbar spine or the entire spine during the whole appeal period. Rather, the evidence of record contains either specific findings of no ankylosis or findings reflecting that there is no ankylosis. Moreover, the evidence of record does not reflect that the symptoms of the Veteran's back disability more nearly approximated the criteria for an increased 50 percent disability rating from March 11, 2014 to February 3, 2020. Specifically, the evidence of record does not reflect that the Veteran's flare-ups and other functional impairments have been so severe, frequent, and or prolonged to warrant the next higher disability rating during the claim period. The evidence of record shows that when considering pain, flare-ups, and other functional factors, the Veteran's back disability symptoms have not been shown to result in symptoms more nearly approximating fixed flexion or extension of the thoracolumbar spine or a thoracolumbar spinal segment, which are the requirements of a 50 percent rating under DC 5237. Specifically, the VA examiners estimated that the Veteran's range of motion of the thoracolumbar spine was, at worst, 20 degrees forward flexion and 5 degrees extension, even when considering functional loss due to flare-ups. There is also no evidence of record of incapacitating episodes having a total duration of at least six weeks during the past 12 months or evidence or argument establishing an increase in disability factually ascertainable within a year of the date of the March 11, 2014 increased disability rating claim. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). For the foregoing reasons, the evidence of record reflects that the Veteran's symptoms of degenerative arthritis of the lumbar spine with IVDS have more nearly approximated flexion to less than 30 degrees when considering flare-ups throughout the appeal period. An increased disability rating of 40 percent is therefore warranted from March 11, 2014 to February 3, 2020. As the preponderance of the evidence is against an increased disability rating throughout the entire appeal period, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Entitlement to an increased disability rating for esophagitis The Veteran's esophagitis is rated noncompensable from March 11, 2014 to January 3, 2017 and 10 percent from that date under 38 C.F.R. § 4.114, DC 7346. As discussed further below, a uniform 30 percent rating is warranted for the entirety of the appeal period. There is no diagnostic code applicable to esophagitis and so the Veteran's esophagitis is rated by analogy. 38 C.F.R. § 4.20. DC 7346 applies to hiatal hernia. 38 C.F.R. § 4.114 provides that ratings under DCs 7301-7329, 7331, 7342, and 7345-7348, will not be combined with each other. Rather, a single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. Under DC 7346, a 10 percent rating is warranted where there are two or more of the symptoms listed in the criteria for the 30 percent rating of less severity. A 30 percent rating is warranted where there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. During a July 2014 VA examination, the Veteran reported he developed recurrent dysphagia and heartburn, which persisted despite medications. At the time of the examination, he was without symptoms and did not take any medications. In his October 2014 Notice of Disagreement, the Veteran indicated that although his surgery in January 2014 for esophagitis was successful, he still experienced symptoms of gastroesophageal reflux disease. During a January 2017 VA examination, the Veteran reported occasional episodes of burning epigastric pain during ingesting of certain foods and acid reflux when supine without pillows under his head. In addition, he took Omeprazole on a daily basis. The Veteran endorsed symptoms of reflux and substernal pain. In a March 2017 letter, Dr. Thi indicated that the Veteran continued to have breakthrough symptoms and had been on multiple medications that "really have not helped improve his symptoms at all." He noted that the Veteran had to sit in a recliner at night to avoid reflux symptoms, had episodes of regurgitation of bile when bending over, a sour taste in his mouth not associated with intake of food, and dysphagia causing difficulty swallowing liquids. In a November 2019 statement, the Veteran noted that he watched his diet and did not eat foods that upset his condition and took medications to help his severe heartburn and reflux. During a February 2020 VA examination, the Veteran reported experiencing heartburn, belching, difficulty swallowing, sore throat, chest and back pain, and spasms. He also took medication daily. The Veteran endorsed symptoms of infrequent epigastric distress, dysphagia, pyrosis, reflux, and substernal pain. The examiner indicated that the symptoms did not impact the Veteran's ability to work. For the following reasons, an increased disability rating of 30 percent, but no higher, for esophagitis is warranted. Throughout the appeal period, the Veteran's esophagitis symptoms have more nearly approximated the criteria for a 30 percent increased disability rating. The evidence of record shows that the Veteran experienced epigastric distress, dysphagia, pyrosis (heartburn), reflux, difficulties swallowing, substernal pain, back pain, belching, sore throat, and spasms. Therefore, the Veteran's symptoms of esophagitis throughout the appeal period more nearly approximate those required for an increased, 30 percent disability rating. The evidence of record does not reflect that the Veteran's esophagitis symptoms included vomiting, material weight loss, hematemesis, melena, or anemia. Thus, the only remaining question is whether the Veteran's other symptoms combine to produce severe impairment of health. The word "severe" is not defined in this or other VA regulations. "Severe," as an adjective, is defined as "causing discomfort or hardship"; "very painful or harmful"; "of a great degree." Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last visited December 16, 2021). Moreover, as noted, the Board cannot take account of the ameliorative effects of medication and the Veteran has indicated that he takes daily medication for his esophagitis. In response to the question of whether the Veteran had any of the following signs or symptoms due to any esophageal conditions, the February 2020 VA examiner checked the box for infrequent episodes of epigastric distress, dysphagia, pyrosis, reflux, and substernal pain, but did not check the boxes for symptom combination productive of severe impairment of health. While a VA examiner's characterization of the level of disability is not binding on the Board, see 38 C.F.R. § 3.100(a) (delegating the Secretary's authority "to make findings and decisions... as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present"), here it is consistent with the above evidence of record. That evidence reflects that the Veteran's symptoms did not affect his overall health to the extent that it affected his ability to work or cause systemic symptoms such as weight loss. Moreover, Dr. Thi indicated that the medication was "not really working" and thus it cannot be said that, discounting the ameliorative effects of medication, the Veteran's symptoms more nearly approximated severe impairment of health. Thus, the criteria for a 60 percent disability rating have therefore not been met. Moreover, there is no evidence or argument establishing an increase in disability factually ascertainable within a year of the date of the March 11, 2014 increased disability rating claim. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). For the foregoing reasons, an increased disability rating of 30 percent, but no higher, is warranted for the Veteran's esophagitis for the entire appeal period. As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered the Veteran's claims and decided entitlement based on the evidence. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.