Citation Nr: 21005808 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-07 135 DATE: February 2, 2021 ORDER A 20 percent rating for chronic lumbosacral strain is granted. A rating higher than 10 percent for cervical spondylosis is denied. REMANDED A rating higher than 10 percent for residuals of Morton's neuroma, left foot, is remanded. FINDINGS OF FACT 1. Medical evidence during the appeal note the Veteran’s lumbar spine disability has been manifested by guarding, tenderness, pain with motion of the left thoracic sacrospinalis, decreased lordosis; and palpable muscle spasm of the bilateral lumbar paraspinals. 2. The Veteran’s cervical spine disability has not been manifested by forward flexion of the cervical spine to 30 degrees or less or a combined range of motion of 170 degrees or less; 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; or incapacitating episodes of IVDS having a total duration of at least 2 weeks during the past 12 months at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent for chronic lumbosacral strain have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237 (2020). 2. The criteria for a rating higher than 10 percent for cervical spondylosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5239 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from September 1981 to September 2001. These matters come before the Board of Veterans Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in December 2009. The Veteran presented testimony at a hearing before the undersigned Veterans Law Judge in April 2017 and the claims were remanded by the Board in May 2018. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Disabilities of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they “are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.” 68 Fed. Reg. 51,454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). Ratings in excess of 10 percent pertinent to the lumbar spine are provided 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 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); forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); for unfavorable ankylosis of the entire thoracolumbar spine (50 percent); and for unfavorable ankylosis of the entire spine (100 percent). Id. Ratings in excess of 10 percent pertinent to the cervical spine are provided for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or, the combined range of motion of the cervical spine not greater than 170 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); forward flexion of the cervical spine 15 degrees or less, or, favorable ankylosis of the entire cervical spine (30 percent); and unfavorable ankylosis of the entire cervical spine (40 percent). Id. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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/zero degrees always represents favorable ankylosis. Id. at Note (5). Note (2) of the General Rating Formula provides that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees and the normal combined range of motion of the cervical spine is 340 degrees. See also Plate V, 38 C.F.R. § 4.71a. Alternatively, intervertebral disc syndrome (IVDS) can be rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). This formula provides a 20 percent 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 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 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 requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). 1. A rating higher than 10 percent for chronic lumbosacral strain Service connection was originally granted for chronic lumbosacral strain in an October 2001 rating decision. He filed the instant claim for an increased rating in September 2009. The Veteran seeks an increased rating based on the basic assertion that his condition has worsened. He reports pain has increased in frequency and that he has needed increased treatment and that the condition has affected his work as an operating room nurse since he is not able to stand for long periods of time. The Veteran also reports chiropractic care and that he has been in and out of physical therapy. He indicates that his lumbar spine condition has increased symptomatology, numbness, pain, and functional/mobility loss. The Veteran testified in April 2017 that he had physical therapy and acupuncture from September 2012 until February 2013 to relieve pain but that it had not gotten better, only increasingly worse. He was taking various non-narcotic pain medications but had to push himself to go to work even with pain and not had a pain-free day since 2013, when he was discharged from physical therapy and acupuncture. The Veteran testified that he could not bend over without feeling severe pain but was able to squat and could sit for 20 to 30 minutes at a time. He indicated that he had more administrative nursing duties than operating room nursing duties as a result of his condition and that he was only in the operating room once a week whereas he was in four days a week before. In an April 2020 statement, the Veteran reports that he was prescribed a back brace and a home electrical stimulation unit in the last year. Upon review of the evidence and after resolving all doubt in the Veteran’s favor, the Board finds his symptomatology more nearly approximates the criteria for a 20 percent rating. In this regard, there was objective evidence of guarding, tenderness, and pain with motion of the left thoracic sacrospinalis during the October 2009 VA examination; of decreased lordosis during physical therapy in October 2014; and of palpable muscle spasm of the bilateral lumbar paraspinals during treatment in August 2017. However, the preponderance of the evidence of record does not support the assignment of a rating higher than 20 percent for the lumbar spine disability. To merit the assignment of a 40 percent rating under the General Rating Formula, the evidence must show that the Veteran had forward flexion limited to 30 degrees or less. The evidence in this case does not support such a finding. Rather, the Veteran’s thoracolumbar spine exhibited forward flexion limited to 80 degrees at worst. See VA and private treatment records; VA examination reports. The Board acknowledges the Veteran’s assertion that the September 2019 VA lumbar spine examination did not use a goniometer to measure his range of motion. Since the VA examiner specifically noted the use of a goniometer, the Board accepts that one was used. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (applying the presumption of regularity to VA medical examiners in the discharge of their official duties); Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004) (“The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.”) Consideration has been given to functional impairment and any effects of pain on functional abilities due to the Veteran’s service-connected lumbar spine disability. The Board again acknowledges the objective evidence during the October 2009 VA examination of guarding, tenderness, and pain with motion of the left thoracic sacrospinalis, and the objective evidence of pain with range of motion testing during the September 2019 VA examination. It also acknowledges the Veteran’s subjective complaints associated with impaired function with conducting activities of daily living, and with bending and turning side to side. In this case, however, the Board does not find any additional functional loss that equates to a limitation of forward flexion to 30 degrees or less. The Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or range of motion after repetition during the October 2009 and September 2019 VA examinations. The September 2019 VA examiner also noted that there was no limitation in functional ability due to pain, weakness, fatigability and/or incoordination with repeated use over time or with flare-ups. Considering the foregoing, while also acknowledging the fact that the Veteran has been recently using a back brace, the Board finds that a rating higher than the 20 percent rating being assigned for the Veteran’s lumbar spine disability is not warranted. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. Nor is the assignment of a higher rating for the Veteran’s lumbar spine disability warranted under the IVDS Formula at any time during the appeal. This is so because there is no evidence of incapacitating episodes having a total duration of at least 4 weeks during the past 12 months. In fact, the September 2019 VA examiner indicated that the Veteran does not have IVDS involving the lumbar spine. The Board has also considered whether the Veteran’s service-connected lumbar spine disability manifests any associated objective neurologic abnormalities at any time during the appeal period. However, he has consistently denied bowel or bladder impairment and while during the September 2019 VA examination, straight leg raising test was positive on the left, the examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. In the absence of any neurological disability associated with the lumbar spine disability, a separate rating is not warranted. 2. A rating higher than 10 percent for cervical spondylosis Service connection was originally granted for cervical spondylosis in an October 2001 rating decision that assigned a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5290, effective October 1, 2001. The Veteran seeks an increased rating based on the basic assertion that his condition has worsened. He reports pain has increased in frequency and that he has needed increased treatment and that the condition has affected his work as an operating room nurse since he is not able to stand for long periods of time. The Veteran also reports that he has been in and out of physical therapy. He indicates that his cervical spine condition had increased symptomatology, numbness, pain, and functional/mobility loss. The Veteran testified in April 2017 that he lost motor function in his right hand in approximately January 2010 after feeling a pop in his neck. He indicated that he was unable to brush his teeth or hold a cup and that the numbness lasted about six months. The Veteran reported that the numbness had returned, as well as tingling around the shoulder across the upper back, but that he had not lost function again, though it was limiting at times because he did not have full movement of his neck. He indicated that he had physical therapy until about 2016 but used what he had learned during that treatment to exercise at home with heat. The preponderance of the evidence of record does not support the assignment of a rating higher than 10 percent for the cervical spine disability at any time during the appeal. To merit the assignment of the next highest (20 percent) rating under the General Rating Formula, the evidence must show that the Veteran had forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or a combined range of motion of the cervical spine not greater than 170 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. The evidence in this case does not show any of these manifestations. Rather, the Veteran’s cervical spine exhibited forward flexion to at least 40 degrees; the combined range of motion of the cervical spine was at least 204 degrees; and there is no evidence of muscle spasm or guarding. See VA and private treatment records; VA examination reports. The Board acknowledges the Veteran’s assertion that the September 2019 VA cervical spine examination did not use a goniometer to measure his range of motion. As noted above, since the VA examiner specifically noted the use of a goniometer, the Board accepts that one was used. See Rizzo and Miley, both supra. Consideration has been given to functional impairment and any effects of pain on functional abilities due to the Veteran’s service-connected cervical spine disability. The Board acknowledges the objective evidence of pain with range of motion testing and repetitive motion during the October 2009 VA examination, pain with range of motion during physical therapy, and pain with range of motion testing that was found to cause functional loss with all motion except flexion during the September 2019 VA examination. The Board also acknowledges that the Veteran was not able to perform repetitive use testing due to fear of pain during that examination and his subjective complaints associated with impaired function with conducting activities of daily living, and difficulty turning to the left side. However, the Board does not find any additional functional loss that is not contemplated by the currently assigned 10 percent rating. The Veteran has described functional limitations contemplated in the rating criteria and has not described additional loss of motion or functional impairment with repetition or during flare-ups that meet or more nearly approximate the criteria for the next higher (20 percent) rating. The Veteran was able to perform repetitive-use testing without additional loss of function or range of motion after repetition during the October 2009 VA examination and the September 2019 VA examiner noted that there was no limitation in functional ability due to pain, weakness, fatigability and/or incoordination with repeated use over time or with flare-ups. While the September 2019 VA examiner was not able to describe limitations in functional ability in terms of range of motion, the examiner explained that there was no basis to offer additional losses of function or motion during a flare-up after review of the Veteran’s records, to include physical exam, reported history, subjective complaints, and the relevant evidence of record, and using the examiner’s medical knowledge and expertise. Considering the foregoing, while also acknowledging the fact that the Veteran has been recently using a cervical pillow, the Board finds that a rating higher than the 10 percent rating assigned for the Veteran’s cervical spine disability is not warranted based on functional impairment at any time during the appeal. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. Nor is the assignment of a rating higher than 10 percent for the Veteran’s cervical spine disability warranted under the IVDS Formula at any time during the appeal. This is so because there is no evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. In fact, the September 2019 VA examiner indicated that the Veteran does not have IVDS involving the cervical spine. The Board has also considered whether the Veteran’s service-connected cervical spine disability manifests any associated objective neurologic abnormalities at any time during the appeal period. The Board acknowledges that the Veteran reported one flare-up of pain with radiation down his right arm with right hand weakness during the October 2009 VA examination, as well as his testimony regarding that incident and that the numbness had returned afterward and was accompanied by tingling around the shoulder and across the upper back. However, the September 2019 VA examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy and normal muscle strength without atrophy; normal reflex exam; normal sensory examination. In the absence of any neurological impairment manifested by at least mild incomplete paralysis of the upper extremities associated with the cervical spine disability, a separate rating is not warranted. See 38 C.F.R. § 4.124A, Diagnostic Codes 8510-8519. REASONS FOR REMAND 3. A rating more than10 percent for residuals of Morton's neuroma, left foot, is remanded. An appropriate neurological evaluation of the Veteran’s left foot is needed to address the diagnosis of residual hypesthesia made during the September 2019 VA examination, which was based on the Veteran’s assertion that he has numbness in some toes and part of the foot as a residual of the service-connected disability. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the severity of, and manifestations associated with, the residual hypesthesia diagnosed during the September 2019 VA examination, which was based on the Veteran’s assertion that he has numbness in some toes and part of the foot as a residual of the service-connected left foot disability. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.