Citation Nr: A21020558 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 200527-88605 DATE: December 27, 2021 ORDER Entitlement to separate disability ratings for lumbar myositis, degenerative disc disease, and dextroscoliosis is denied. FINDING OF FACT The Veteran's lumbar myositis, degenerative disc disease, and dextroscoliosis manifest as a single thoracolumbar disability. CONCLUSION OF LAW Separate compensable ratings for the Veteran's lumbar myositis, degenerative disc disease, and dextroscoliosis would constitute prohibited pyramiding of compensation. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty, from August 2008 to April 2015. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2020 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA) was signed into law on August 23, 2017. The AMA creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This decision is written consistent with the new AMA framework. The Veteran was afforded a December 2019 VA back examination and medical opinion. The examiner opined that the Veteran's dextroscoliosis was at least as likely as not proximately due to his already service-connected back condition. The March 2020 rating decision on appeal added the dextroscoliosis diagnosis to the evaluation of the Veteran's service-connected back disability and increased the disability rating from 20 percent to 40 percent effective in November 2019, the date the claim for service connection was received. The Veteran submitted a May 2020 VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), selecting the Direct Review docket. As explained in the VA Form 10182, "direct review" means the Board's decision must be based upon the evidence of record at the time of the prior decision, with no evidence submission or hearing request. As such, the Board has only considered the evidence of record at the time of the March 2020 rating decision. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim of whether separate ratings are warranted for the Veteran's multiple lumbar spine diagnoses, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Under the AMA framework, a remand is permissible only to correct pre-decisional duty to assist errors. 38 C.F.R. § 20.802. In a May 2021 brief, the Veteran's representative challenged the credentials of the examiner who provided the December 2019 examination and medical opinion, noting she was a Family Nurse Practitioner (FNP) and not a specialist in orthopedic disease. A recent decision from the Federal Circuit, Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019), holds that a Veteran is required to challenge a VA examiner's competence in the first instance. Here, the representative has not requested the examiner's credentials but has instead questioned that examiner's competence to assess orthopedic conditions. That the examiner was a FNP does not render her unqualified or render the examination inadequate. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Rather, a FNP may generally be considered as qualified through education, training and/or experience to offer medical diagnoses and opinions. Thus, in the absence of any specific objection to the competence of the examiner (other than that she is a FNP), the Board finds that she was competent to provide the medical opinions in this case. Id. The Board finds the December 2019 opinion to be factually accurate, fully articulated, and containing sound reasoning. Based on the examination, the diagnosis of dextroscoliosis was added to the evaluation of the Veteran's back disability and the rating for his back disability was increased to 40 percent. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While respectfully considering the Veteran's contentions, the Board finds no basis to ascertain that the medical professional who provided the December 2019 opinion was not qualified to do so; the Board is entitled to assume the competence of a VA examiner. See Cox, supra. Thus, the Board concludes that a finding of a pre-decisional duty to assists error requiring a remand is not warranted. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), Diagnostic Codes 5235 to 5243, unless Diagnostic Code 5243 is specifically evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS Formula) based on incapacitating episodes. Ratings under the General Rating Formula are made with or without symptoms such as pain (radiating or not), stiffness, or aching around the spine affected by residuals of injury or disease. The Veteran's lumbar myositis, degenerative disc disease, and dextroscoliosis have been rated together under 38 C.F.R. § 4.71a, Diagnostic Code 5242 for degenerative arthritis of the spine. In his May 2020 NOD, the Veteran asserted that separate ratings are warranted for his lumbar myositis, degenerative disc disease, and dextroscoliosis. After a thorough review of the claims file, the Board finds that separate ratings for the Veteran's back conditions would constitute pyramiding, and the claim must be denied. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The U.S. Court of Appeals for Veterans Claims (Court) explained in Lyles v. Shulkin, 29 Vet. App. 107 (2017) that "entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different diagnostic code." The Court also held that "where a certain manifestation of a disability has not been compensated via an assigned evaluation under a particular diagnostic code, evaluation of that manifestation under another diagnostic code would not constitute pyramiding." A December 2014 service department Physical Evaluation Board determined the Veteran was physically unfit to continue his military service. The Veteran was afforded a November 2014 VA general medical examination which included a VA back (thoracolumbar spine) conditions examination. Service connection for lumbar myositis (claimed as low back pain) was proposed in a January 2015 rating decision as directly related to his military service and confirmed in a May 2015 rating decision. A 10 percent evaluation was assigned based on symptomology including localized tenderness not resulting in abnormal gait or abnormal spinal contour. Additional symptoms were noted to include combined range of motion of the thoracolumbar spine within normal range, forward flexion of the thoracolumbar spine within normal range, and painful motion upon examination. The Veteran submitted a July 2015 VA 21-526EZ claim for an increased rating for his service-connected back condition. The Veteran was afforded an August 2015 VA back examination. An October 2015 rating decision increased the rating for his service-connected back disability to 20 percent based on symptomatology including forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees and muscle spasm severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Additional symptoms were noted to include combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, guarding not resulting in abnormal gait or abnormal spinal contour, and painful motion upon examination. The Veteran submitted an October 2015 VA 21-526EZ that included separate claims for service connection for degenerative disc disease of S1/L5, L5/L4; lumbar spinal stenosis; herniated disc S1/L5, L5/L4, and L4/L3; and spinal cord impingement canal stenosis, all as secondary to his service-connected low back pain. The Veteran was afforded an October 2017 VA back examination. A November 2017 rating decision added the degenerative disc disease (DDD) diagnosis to the evaluation of the Veteran's service-connected back disability and decreased the rating to 10 percent based on symptoms that included a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees and forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. Additional symptoms were noted to include painful motion upon examination. The Veteran submitted a May 2018 VA 21-526EZ wherein he asserted entitlement to an increased rating for his back condition. He was afforded an August 2018 back examination. An August 2018 rating decision increased the disability rating for the Veteran's service-connected back condition to 20 percent based on symptoms including forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees and muscle spasm severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Additional symptoms were noted to include X-ray evidence of degenerative arthritis, no incapacitating episodes during the past 12 months, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, and painful motion upon examination. The Veteran submitted a November 2019 VA 21-526EZ that included separate claims for service connection for DDD, spondylosis, and lumbar dextroscoliosis all as secondary to his lumbar myositis. The Veteran was afforded a December 2019 VA back examination and medical etiology opinions. The claims file also includes September 2019 lumbar spine imaging. A March 2020 rating decision added the dextroscoliosis diagnosis to the evaluation of the Veteran's service-connected back disability and increased the rating to 40 percent based on symptoms including forward flexion of the thoracolumbar spine 30 degrees or less. Additional symptoms were noted to include combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, and painful motion upon examination. As noted above, the Veteran responded with a VA Form 10182 in May 2020, in which he contended that his lumbar myositis, degenerative disc disease, and dextroscoliosis should be rated separately. Specifically, in making this claim, the Veteran has argued that his lumbar myositis, degenerative disc disease, and dextroscoliosis are "separate and distinct" from each other. In the instant matter, the Board finds the Veteran's lumbar myositis, degenerative disc disease, and dextroscoliosis have manifested with limited forward flexion, muscle spasms severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, and painful motion. The most probative evidence of record is the December 2019 VA back examination and medical opinion, in which the Veteran's dextroscoliosis was found to be intertwined by proximity with his lumbar myositis with degenerative disc disease. Indeed, the record does not contain competent or probative medical or lay evidence establishing that the various lumbar spine disabilities, including the dextroscoliosis, manifest with symptoms that have been ascribed to separate conditions. Instead, the lumbar spine disability picture as a whole has been described as above, with limited flexion and overall range of motion. See, e.g., Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Granting separate evaluations for the individual diagnoses would constitute pyramiding. Lyles, supra; 38 C.F.R. 4.14. While the Board acknowledges the Veteran's belief that he is entitled to separate ratings, the Veteran does not have the requisite training and education necessary to make medical determination that his back symptoms have not manifested as a single spinal disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Notwithstanding his assertion that the conditions are "separate and distinct," he has not provided competent evidence showing that the different lumbar diagnoses manifest with separate symptoms, such that separate ratings would be warranted. Thus, the Board finds that assigning separate disability ratings would constitute pyramiding because it would compensate the Veteran multiple times for the same spine symptomatology or impairment. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261. The appeal is denied. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.