Citation Nr: 21007834 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 10-40 801A DATE: February 10, 2021 ORDER Entitlement to an increased disability evaluation in excess of 40 percent from March 19, 2018 for lumbosacral-spine disorder is denied. REMANDED Entitlement to an initial disability evaluation in excess of 10 percent prior to March 19, 2018 for lumbosacral-spine disorder is remanded. FINDING OF FACT The objective medical evidence shows at no time during the appeal period from March 19, 2018 did lumbosacral-spine disorder more closely approximate favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. CONCLUSION OF LAW The criteria for increased disability evaluation in excess of 40 percent from March 19, 2018 for lumbosacral-spine disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5237 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from August 1990 to April 2000 and from March 2003 to June 2004. In November 2015, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Increased Schedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2019). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126–27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the relevant overall temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as “pyramiding,” must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2019). When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’” as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while “pain may cause a functional loss, pain itself does not constitute a functional loss,” and, is therefore, not grounds for entitlement to a higher disability rating). Additionally, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, actually painful, unstable or malaligned joints, due to a healed injury, are recognized as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see also Burton v. Shinseki at 5 (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Entitlement to an increased disability evaluation in excess of 40 percent from March 19, 2018 for lumbosacral-spine disorder. The Veteran’s lumbosacral-spine disorder is currently evaluated under Diagnostic Code 5003-5237. A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Put simply, the diagnosis of the disorder is arthritis under Diagnostic Code 5003 and the nature and effects of the disorder are limitation of motion of the lumbosacral spine under Diagnostic Code 5237. Diagnostic Code 5003 specifies that arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003. If the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. Id. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. As it is, the Veteran’s lumbosacral-spine disorder has is rated at 40 percent under the appropriate diagnostic code. Diagnostic Code 5237 defers to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), under which a 40 percent rating is assigned when forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Although Note 4 of the General Rating Formula offers the choice of alternatively rating lumbar spine disorder under the Formula for Rating Intervertebral Disc Syndrome for whichever criteria of the two rating formulae provides a higher evaluation, the latter rating formula must be based on incapacitating episodes in the last 12 months, defined as a period of acute signs and symptoms due to intervertebral disc syndrome which requires bed rest prescribed by a physician and treatment by a physician. Turning to the record, a January 2010 rating decision granted service connection for degenerative disc disease of the lumbar spine at a 10 percent rating, effective August 20, 2009. A June 2019 rating decision increased the initial rating to 40 percent, effective March 19, 2018. As stated above, the claim for an initial disability rating in excess of 10 percent prior to that date is remanded for further development. The appeal period for the claim for a rating in excess of 40 percent began on March 19, 2018. The Board has reviewed and considered evidence starting in the period of one year prior to that date. In the March 2018 VA examination for thoracolumbar-spine conditions, the VA examiner stated a 1995 diagnosis of lumbosacral strain. She noted the Veteran’s reports of worsening, continual pain in the lower and thoracic back and limitation with bending, lifting, sitting, standing, and walking. Range of motion measurements show forward flexion at 0 to 30 degrees (90 degrees, normal) and extension at 0 to 20 degrees (30 degrees, normal). After repetitive use, forward flexion was at 0 to 20 degrees and extension at 0 to 15 degrees. The March 2018 VA examiner found there was no ankylosis of the spine of any sort and no intervertebral disc syndrome (IVDS). Based on this examination’s findings, the Veteran’s disability evaluation was increased to 40 percent. This is the first time findings were recorded that supported the higher rating. In the May 2019 VA examination for thoracolumbar-spine conditions, the VA examiner stated 2004 diagnoses of degenerative arthritis of the spine and degenerative joint disease, lumbar spine. He noted the Veteran’s reports of constant pain in lumbar and thoracic areas, aggravated by prolonged sitting or standing or increased physical activity, with worsening episodes sometimes lasting for days. The Veteran further reported some sciatic radiation. Range of motion measurements were now recorded at 0 to 45 degrees for forward flexion and 0 to 15 degrees for extension, remaining unchanged in repetitive use testing. However, the May 2019 VA examiner found there was no ankylosis, favorable or unfavorable, of the entire spine and no IVDS. The Board notes that, as set forth in the 2 summaries of the above examinations, based on the Veteran’s own reports, functional loss due to relevant lumbar or lumbosacral-spine symptoms was noted, as well as changes affecting normal working movements, which were sufficiently reviewed, included in the examination findings and considered in the assignment of the Veteran’s current disability evaluation, but they have not presented a basis for a higher evaluation. See 38 C.F.R. §§ 4.40, 4.45, 4.59; See DeLuca v. Brown, 8 Vet. App. at 204-07; Mitchell v. Shinseki, 25 Vet. App. at 37; Burton v. Shinseki, 25 Vet. App. at 5. In short, the 40 percent rating provides for the effects of limitation of motion, whether due to pain on movement or restricted movement due to an orthopedic injury itself. The summary of the record in the period from March 19, 2018 shows in 2 examinations at no time did either VA examiner find ankylosis of the spine of any kind whatsoever. Without such a finding in this period, the Veteran cannot attain a disability evaluation under the General Rating Formula higher than the 40 percent assigned to him. The record in this period offers no other medical evidence regarding the Veteran’s lumbosacral-spine disorder. For these reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is against a rating in excess of 40 percent in the period from March 19, 2018. REASONS FOR REMAND Entitlement to an initial disability evaluation in excess of 10 percent prior to March 19, 2018 for lumbosacral-spine disorder. In the January 2010 rating decision, the Veteran received a grant of service connection for degenerative joint disease, lumbar spine with an evaluation of 10 percent, effective August 20, 2009. As the Veteran asserts that he received Workers’ Compensation benefits in the period starting approximately three to four years before the effective date, the Board directed in its January 2016 Remand that these records be obtained. The August 2016 Board Remand noted the failure to obtain these records, but further noted that the AOJ had nonetheless verified their availability with the proper state government agency. Moreover, as indicated in the March 2016 Report of General Information, the summary of the telephonic exchange between the AOJ representative and the state government agency representative indicates that the AOJ representative made a direct request that the Veteran’s Workers’ Compensation records be faxed and the representative of the state government agency verified the fax number in preparation for transmission. Additionally, attached to the Report of General Information are an Authorization for the Release of Information, dated February 2016 and signed by the Veteran and a General Release for Medical Provider Information, filled in with the necessary information identifying the Department of Environmental Protection, New Jersey State Parks. Although the latter does not bear a date or signature, it appears neither is needed, as there is no box designated for that information. It appears, therefore, that the necessary authorizations were in order and ready to be faxed or mailed when requested. The record does not provide documentation as to why the seemingly imminent fax transmission was not received by the AOJ, nor does it contain any notice to the Veteran issued by the AOJ stating that reasonable measures had been undertaken to secure the records sought or that further inquiry and efforts would be futile. Furthermore, there is no certification or other evidence that the records in fact are unavailable and that, once again, further attempts to obtain them would be futile. In short, the remand directives in the Board’s January 2016, August 2016 and December 2017 Remands have now three times not been fulfilled. The records are pertinent to establishing the extent and severity of the Veteran’s disability in the period prior to March 19, 2018. The Veteran is entitled to compliance with remand directives and the Board will be potentially held to an error if it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). For these reasons, this appeal must be remanded yet again. The matter is REMANDED for the following action: 1. Confirm with the Veteran the exact name of the New Jersey state agency(s) for which he worked and his dates of employment. 2. Review thoroughly the Journal Entries in the AOJ’s March 2016 Report of General Information. Contact the individual and/or directorate of the New Jersey state agency to whom/to which the last entry on March 22, 2016 refers in order to re-establish contact for the purpose of obtaining the Veteran’s Workers’ Compensation records while working for what appears to be the New Jersey State Park Police and/or the New Jersey Department of Environmental Protection (or whichever agency(s) the Veteran identifies), in the period possibly from April 1, 2000 through November 25, 2016 (or whatever dates the Veteran provides). The AOJ is advised to note that the March 22, 2016 entry shows contact with an individual with “human resources at the PHP office,” who appears to have provided some useful information, but without further action from her or follow-up from the AOJ. The AOJ is further advised to obtain information of what is necessary for that agency to mail or transmit to the AOJ the Veteran’s Workers’ Compensation records, which that agency currently has in its possession. The AOJ is further advised that attached to the March 2016 Report of General Information are authorization forms for the release of information, filled out by the Veteran. If newer versions of the authorization and/or release forms to be currently signed and dated are required, send those forms to the Veteran with instructions for completion and return by the Veteran to the AOJ. If records are obtained, associate them with the claims file. The Veteran’s assistance should be requested in obtaining any records if needed. All attempts to obtain records should be documented in the claims file. The AOJ is urged to note that the record indicates that, in the prior attempt to obtain the above documents from the relevant New Jersey state agency, the second request by letter, dated August 30, 2018, was made approximately 7 months and 3 weeks after the initial request. The AOJ is advised that this will be insufficient and is further advised if subsequent requests are necessary after no initial response, those subsequent requests should follow at 2-week intervals until some response is received, then wider intervals may be decided upon as more appropriate. If the records cannot be obtained, the AOJ should document its efforts to obtain them, state in its notice to the Veteran the nature and frequency of those efforts and further state specifically why it would be futile to continue make efforts. Send that explanatory document to the Veteran and his representative and associated a copy with the file. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.