Citation Nr: 21006858 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 13-22 081A DATE: February 5, 2021 ORDER For the period of the claim prior to May 26, 2011, a 10 percent rating for the lumbar spine disability is granted. A rating higher than 10 percent for the lumbar spine disability is denied. A compensable rating for the cervical spine disability prior to December 31, 2018, is denied. A rating higher than 10 percent for the cervical spine disability from December 31, 2018, is denied. REMANDED An initial rating higher than 30 percent for posttraumatic stress disorder (PTSD) prior to December 17, 2018, is remanded. An initial rating higher than 70 percent for PTSD with residuals of traumatic brain injury (TBI) as of December 17, 2018, is remanded. FINDINGS OF FACT 1. Physical findings in the May 26, 2011 VA treatment record that served as the basis for the 10 percent rating is sufficiently contemporaneous to the March 2011 date of claim so as to support a 10 percent rating from the date of claim. 2. The Veteran’s lumbar spine disability has not been manifested by forward flexion of the thoracolumbar spine greater to 60 degrees or less; or, the combined range of motion of the thoracolumbar spine to 120 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 since May 26, 2011. 3. Prior to December 31, 2018, the Veteran’s cervical spine disability was not manifested by forward flexion of the cervical spine to 40 degrees or less; or, combined range of motion of the cervical spine to 335 degrees or less; 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; or, IVDS having a total duration of at least one week during the past 12 months. 4. The Veteran’s cervical spine disability has not been manifested by forward flexion of the cervical spine limited to at least 30 degrees; or, a combined range of motion of the cervical spine limited to at least 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; or, incapacitating episodes of IVDS having a total duration of at least 2 weeks during the past 12 months at any time since December 31, 2018. CONCLUSIONS OF LAW 1. For the period of the claim prior to May 26, 2011, the criteria for a 10 percent rating for the lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Codes 5235-5243. 2. The criteria for a rating higher than 10 percent for the lumbar spine disability have not been met from May 26, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. 3. The criteria for a compensable rating for cervical spine disability have not been met prior to December 31, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Codes 5235-5243. 4. The criteria for a rating higher than 10 percent for the cervical spine disability have not been met from December 31, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2003 to October 2007. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in June 2011 and July 2012. The June 2011 rating decision continued noncompensable ratings assigned for the lumbar and cervical spine disabilities. The July 2012 rating decision granted service connection for PTSD and assigned an initial rating of 30 percent effective July 6, 2011. A July 2013 rating decision increased the rating assigned for the lumbar spine disability to 10 percent effective May 26, 2011. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2014. A transcript is of record. The Board remanded the claims in May 2015 and February 2018. In a February 2020 rating decision, the rating assigned for the cervical spine disability was increased to 10 percent effective December 31, 2018; PTSD was recharacterized as PTSD with residuals of TBI and the rating was increased to 70 percent effective December 17, 2018, under Diagnostic Code 9411 in conjunction with 38 C.F.R. § 4.124a, Diagnostic Code 8045. The 70 percent rating that had been separately in effect for TBI with memory under Diagnostic Code 8045 was closed out effective December 17, 2018. Additional medical evidence was associated with the record after certification of the claims to the Board. In an August 2020 letter, the Board informed the Veteran of his right to have the agency of original jurisdiction (AOJ) review the evidence prior to the Board and his ability to waive that right. The letter also informed the Veteran that if no response was received, it would be assumed that he did not want the Board to decide the appeal and the appeal would be remanded. No response was received. Given that the evidence of record obtained after certification of the claims to the Board is only pertinent to the claim for an initial increased rating for PTSD, adjudication of the claims involving the lumbar and cervical spine disabilities can continue. 38 C.F.R. § 19.37. 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). Compensable ratings are provided for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 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 (10 percent); forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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); unfavorable ankylosis of the entire cervical spine; or, 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. Note (5) of the General Rating Formula provides that 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. Note (2) of the General Rating Formula provides that for VA compensation purposes, 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. 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. 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 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 10 percent rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; 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. Entitlement to a compensable rating for the lumbar spine disability prior to May 26, 2011 2. Entitlement to a rating higher than 10 percent for the lumbar spine disability from May 26, 2011 Service connection was originally established for the lumbar spine disability in an April 2008 rating decision, which assigned a noncompensable rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242, effective October 6, 2007. The Veteran’s claim for increased rating was received on March 31, 2011, and the June 2011 rating decision that is the subject of this appeal continued the noncompensable rating assigned. As noted above, the rating was increased to 10 percent effective May 26, 2011, in a July 2013 rating decision. The only evidence of record that discusses why the Veteran feels he is entitled to higher ratings for his lumbar spine disability consists of the November 2014 hearing transcript. The Veteran testified as to the following low back symptoms: tingling, burning, and numbness going down into his right buttocks and knee; throbbing, stabbing, and numbing pain at a level four or five on a daily basis; pain exacerbated by long drives, standing and being immobile for long periods of time, and sleeping; and problems turning his back to see out his mirrors while driving. The medical evidence pertinent to the claim for an increased rating for the lumbar spine disability consists of VA treatment records and a VA examination report. The Veteran did not respond to a May 2018 letter requesting his authorization for the release of records generated during his incarceration during the appeal period. For the period of the claim prior to May 26, 2011, although there is no medical evidence showing range of motion, the Veteran was noted to be on medication for back pain. In addition, at the May 26, 2011 visit that served as the basis for the assignment of a 10 percent rating, he reported he had been suffering from back pain for over a year. This visit was approximately two months after he filed his claim for an increased rating and did not reflect that he was seen for an acute onset of pain; rather, the record reflects his report of ongoing back pain. Thus, the Board will resolve all doubt in his favor to find that the symptomatology noted on the May 26, 2011 treatment report is sufficiently contemporaneous to his March 2011 date of claim to support the award of a 10 percent rating from the date of claim. The preponderance of the evidence of record does not support the assignment of a rating higher than 10 percent for the lumbar spine disability at any time during the course of the claim. 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 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. The evidence in this case does not show any of these manifestations. Rather, the Veteran’s thoracolumbar spine has exhibited normal forward flexion; the combined range of motion of the thoracolumbar spine was 230 degrees, which is only 10 degrees less than normal; and there is no evidence of muscle spasm or guarding. See VA treatment records; VA examination report. Consideration has been given to any functional impairment and any effects of pain on functional abilities due to the Veteran’s service-connected lumbar spine disability from May 26, 2011. The Board acknowledges the Veteran’s subjective complaints made during testimony and during the December 2018 VA examination, when he reported functional loss/impairment as a result of his lumbar spine disability because he could not walk or bend over like he used to; could not twist; was not as flexible as he used to; and had worsened pain and stiffness. The Board also acknowledges the objective evidence on VA examination of pain on rest/non-movement and pain with bilateral lateral rotation. In this case, 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 which are contemplated in the rating criteria, and the Veteran himself has not described additional motion loss or functional impairments during flare-ups that meets or more nearly approximates the criteria for the next higher (20 percent) rating. Moreover, 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. In a May 2019 addendum, the VA examiner indicated that pain, weakness, fatigability and incoordination did not significantly limit the Veteran’s functional ability with repeated use over time or with flare-up. The examiner explained that after further review of the December 2018 physical exam findings including observed repetitive use with no loss of function or range of motion, reported history and subjective complaints, and relevant evidence of record with a lack of supporting documentation in the file, and using his medical knowledge and expertise, there was no basis to offer additional losses of function or motion when it comes to repetitive use or during flare-up. Considering the foregoing, the Board finds that a rating higher than the 10 percent rating assigned for the Veteran’s lumbar spine disability is not warranted based on functional impairment. 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 lumbar spine disability warranted under the IVDS Formula at any time. 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 December 2018 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, while the Board acknowledges the Veteran’s subjective complaint of pain radiating into the right side of his buttocks and right lower extremity, the record does not reflect any neurological disabilities associated with the lumbar spine disability. In fact, the December 2018 VA examiner reported that reflex and sensory examinations were normal; that bilateral straight leg raising was negative; and that the Veteran did not have signs or symptoms of radiculopathy. The Board finds the medical evidence to be more probative than the Veteran’s lay assertions. Moreover, the Veteran did not cooperate in the attempt to request private treatment records. “The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In sum, the evidence supports the assignment of a 10 percent rating during the period of the claim prior to May 25, 2011, but the preponderance of the evidence is against a rating in excess of 10 percent at any time during the course of the claim. 3. Entitlement to a compensable rating for the cervical spine disability prior to December 31, 2018 4. Entitlement to a rating higher than 10 percent for the cervical spine disability from December 31, 2018 Service connection was originally established for the cervical spine disability in an April 2008 rating decision, which assigned a noncompensable rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5239, effective October 6, 2007. The Veteran’s claim for increased rating was received on March 31, 2011, and the June 2011 rating decision that is the subject of this appeal continued the noncompensable rating assigned. As noted above, the rating was increased to 10 percent effective December 31, 2018, in a February 2020 rating decision. The only evidence of record that discusses why the Veteran feels he is entitled to higher ratings for his cervical spine disability consists of the November 2014 hearing transcript. The Veteran testified as to the following neck symptoms: constant stiffness exacerbated by driving; and feeling like he needs to pop his neck but being unable to. The medical evidence pertinent to the claim for an increased rating for the cervical spine disability consists of VA treatment records and a VA examination report. The Veteran did not respond to a May 2018 letter requesting his authorization for the release of records generated during his incarceration during the appeal period. The preponderance of the evidence of record does not support the assignment of a compensable rating for the cervical spine disability prior to December 31, 2018. To merit the assignment of a 10 percent rating under the General Rating Formula, the evidence must show that the Veteran had forward flexion of the cervical spine limited to at least 40 degrees; or, combined range of motion of the cervical spine limited to at least 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. The evidence in this case does not show any of this. Rather, VA records dated in May 2011 and July 2011 reveal that the Veteran’s neck had normal range of motion, there was no evidence of spasm, and a September 2013 x-ray of the cervical spine was noted to be unremarkable. Where the criteria for a compensable rating under a diagnostic code are not met and the rating schedule does not provide for a zero percent rating, a noncompensable (zero percent) rating will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31. Consideration has been given to any functional impairment and any effects of pain on functional abilities due to the Veteran’s service-connected cervical spine disability prior to December 31, 2018. The Board acknowledges the Veteran’s subjective complaints made during his hearing testimony. In this case, the Board does not find any additional functional loss that is not contemplated by the currently assigned 0 percent rating. The Veteran has not described any functional limitations that are not contemplated in the rating criteria, nor has he described additional motion loss or functional impairments during flare-ups that meets or more nearly approximates the criteria for the next higher (10 percent) rating. Considering the foregoing, the Board finds that a rating higher than the 0 percent rating assigned for the Veteran’s cervical spine disability is not warranted based on functional impairment at any time prior to December 31, 2018. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. Nor is the assignment of a compensable rating for the Veteran’s cervical spine disability warranted under the IVDS Formula prior to December 31, 2018. This is so because there is no evidence of incapacitating episodes having a total duration of at least one week during the past 12 months. The preponderance of the evidence of record is also against the assignment of a rating higher than 10 percent for the cervical spine disability from December 31, 2018. 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 limited to at least 30 degrees; or, a combined range of motion of the cervical spine limited to at least 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 has exhibited normal forward flexion; the combined range of motion of the cervical spine was 320 degrees, which is only 20 degrees less than normal; and there is no evidence of muscle spasm or guarding. See VA treatment records; VA examination report. Consideration has been given to any functional impairment and any effects of pain on functional abilities due to the Veteran’s service-connected cervical spine disability from December 31, 2018. The Board acknowledges the Veteran’s subjective complaints made during the December 2018 VA examination, when he reported functional loss/impairment as a result of his cervical spine disability because of loss of range of motion. The Board also acknowledges the objective evidence on VA examination of pain on rest/non-movement and pain and crepitus when rotating left and right. In this case, 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 which are contemplated in the rating criteria, and the Veteran himself has not described additional motion loss or functional impairments during flare-ups that meets or more nearly approximates the criteria for the next higher (20 percent) rating. 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. In a May 2019 addendum, the VA examiner indicated that pain, weakness, fatigability and incoordination did not significantly limit the Veteran’s functional ability with repeated use over time or with flare-up. The examiner explained that after further review of the December 2018 physical exam findings including observed repetitive use with no loss of function or range of motion, reported history and subjective complaints, and relevant evidence of record with a lack of supporting documentation in the file, and using his medical knowledge and expertise, there was no basis to offer additional losses of function or motion when it comes to repetitive use or during flare-up. Considering the foregoing, 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 as of December 31, 2018. 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 as of December 31, 2018. 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 December 2018 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. However, the record does not reflect any neurological disabilities associated with the cervical spine disability and the December 2018 VA examiner reported that reflex and sensory examinations were normal; that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy; and that the Veteran did not have signs or symptoms of radiculopathy. The Board finds the medical evidence to be more probative than the Veteran’s lay assertions. Moreover, the Veteran did not cooperate in the attempt to request private treatment records. “The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood, 1 Vet. App. at 193. In sum, the preponderance of the evidence is against the assignment of a compensable rating prior to December 31, 2018 and in excess of 10 percent thereafter. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to an initial rating higher than 30 percent for PTSD prior to December 17, 2018, is remanded 2. Entitlement to an initial rating higher than 70 percent for PTSD with residuals of TBI as of December 17, 2018, is remanded Remand is needed for the AOJ to consider the evidence associated with the record after certification of the appeal to the Board, to include a VA Review PTSD examination conducted in October 2020. The matters are REMANDED for the following action: Readjudicate the claims with consideration of all evidence associated with the record after certification of the appeal to the Board on March 12, 2020, to include a VA Review PTSD examination conducted in October 2020. If the claims remain denied, issue a supplemental statement of the case. 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.