Citation Nr: 21008602 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 19-06 095A DATE: February 17, 2021 ORDER Service connection for a respiratory disability is denied. A 40 percent rating, but no higher, for degenerative arthritis of the thoracolumbar spine with retrolisthesis and degenerative disc disease (low back disability) beginning April 12, 2019, is granted. A 10 percent rating for right lower extremity radiculopathy associated with the low back disability beginning April 12, 2019, is granted. A 10 percent rating for left lower extremity radiculopathy associated with the low back disability beginning April 12, 2019, is granted. REMANDED Entitlement to a rating in excess of 10 percent for the low back disability prior to April 12, 2019, is remanded. FINDINGS OF FACT 1. The weight of the evidence is against finding a current respiratory disability. 2. Beginning April 12, 2019, the evidence shows a worsening of the Veteran’s low back disability manifested by flexion limited to 30 degrees or less, but the evidence does not show unfavorable ankylosis of the thoracolumbar spine. 3. The evidence shows radicular pain in the lower extremities beginning April 12, 2019, but there are no objective findings to evidence moderate or greater impairment of the lower extremity nerves prior to December 17, 2020. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for a 40 percent rating, but no higher, for degenerative arthritis of the thoracolumbar spine beginning April 12, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242. 3. The criteria for a separate 10 percent rating, but no higher, for right lower extremity radiculopathy associated with the low back disability beginning April 12, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. 4. The criteria for a separate 10 percent rating, but no higher, for left lower extremity radiculopathy associated with the low back disability beginning April 12, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1963 to November 1965. Service Connection 1. Service connection for a respiratory disability Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service” – also known as the “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt is resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Based on the evidence, the Board finds the criteria for service connection for a respiratory disability have not been met. See 38 C.F.R. § 3.303. The Veteran contends he developed a respiratory disability after being exposed to asbestos from working in the boiler room, sleeping and eating around pipes insulated with asbestos, and working with brake shoes during service. The preponderance of the evidence is against finding the Veteran has a current respiratory disability. In support of his claim, the Veteran submitted results of a January 2005 pulmonary function test (PFT) with the conclusion of minimal airway obstruction. The January 2019 examiner evaluated the Veteran, including with chest x-ray and PFT, and found there was insufficient objective evidence to support diagnosis of a respiratory condition. The December 2020 medical expert found there was no evidence the Veteran had a chronic respiratory condition. The expert explained that earlier reports suggested minimal obstructive concomitant restrictive disease, however, a chest x-ray in January 2019 was negative for evidence of chronic obstructive pulmonary disease (COPD), emphysema or asbestos-related plaques/asbestosis, and the January 2019 PFT was essentially normal with minimal restrictive disease that was appropriate for the Veteran’s age. The examiner concluded that there was no evidence of obstructive lung disease on x-ray or PFT, no significant respiratory dysfunction, and no evidence of asbestos-related disease. Similarly, VA and private treatment records do not show diagnosis of a respiratory or pulmonary disability and instead show consistent findings of clear lungs, normal respiratory effort, and no cough. The Board finds the opinions of the VA medical experts highly probative as they considered the Veteran’s medical history and diagnostic testing, provided rationale for the conclusions, and are consistent with the other evidence of record, including the lack of treatment or diagnosis following the 2005 PFT. The Board notes that the Veteran believes he has a current respiratory diagnosis, including asbestosis. However, he is not competent to diagnose a respiratory disability or determine its cause as this requires specialized medical training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He has also not pointed to a diagnosis of a respiratory disability outside of the 2005 evaluation competed by Dr. C.J. Therefore, the Board must rely on the competent, medical evidence, which shows that the Veteran does not have a current respiratory or pulmonary disability. Without evidence that a disability was present within the period on appeal, there can be no valid claim for service connection. See Romanowski v. Shinseki, 26 Vet. App. 289, 294 (2013). Increased Ratings 2. A 40 percent rating, but no higher, for degenerative arthritis of the thoracolumbar spine beginning April 12, 2019 The Veteran contends his low back disability should be rated 60 percent. See January 2020 Notice of Disagreement. The Agency of Original Jurisdiction (AOJ) awarded a 40 percent rating for the low back beginning December 17, 2020. The Board finds that award should begin April 12, 2019. The Veteran’s low back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Board notes that the Schedule for Rating Musculoskeletal System disabilities was amended effective February 7, 2021, which included changing the language of Diagnostic Code 5242 to “[d]egenerative arthritis, degenerative disc disease other than intervertebral disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses.” However, the General Rating Formula for Diseases and Injuries of the Spine was unchanged. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. A 20 percent rating is warranted 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as “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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). After resolving doubt in the Veteran’s favor, the Board finds the criteria for a 40 percent rating for the low back disability have been met since April 12, 2019. 38 C.F.R. § 4.71a, DC 5242. The December 2020 examiner measured flexion to 15 degrees, and the July 2020 examiner indicated he could not measure the Veteran’s range of motion because of pain. The Board finds both of these examinations evidence that the Veteran’s functional flexion was limited to less than 30 degrees to warrant a 40 percent rating. The first record prior to the July 2020 examination to evidence a worsening in the Veteran’s low back disability is from April 12, 2019. On April 12, 2019, the Veteran was seen for complaints of back pain with pain from the left buttock down the leg. An MRI was ordered. The May 2019 MRI report notes increased T2-weighted signal with L2-3 intervertebral disc with associated endplate changes and degenerative disc disease worse at L5-S1 with facet osteoarthritis. The Board finds the April 12, 2019, treatment record is the first date on which the worsening back disability became factually ascertainable in the record. See 38 C.F.R. § 3.400(o)(2). Entitlement to an increased rating prior to April 12, 2019, is addressed in the remand portion below. The Board finds the preponderance of the evidence is against a rating in excess of 40 percent for the low back disability. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakness, and flare-ups leading to functional limitation, including limitations on heavy lifting, walking, bending and stooping. Indeed, the award of the 40 percent rating was based in part on the limitation the Veteran experienced from pain. However, even considering these reports of symptoms and functional loss, the evidence does not show unfavorable ankylosis of the thoracolumbar spine or symptoms more nearly approximating unfavorable ankylosis of the thoracolumbar spine. The December 2020 examiner found that the Veteran did not have ankylosis. Similarly, ankylosis is not diagnosed in treatment records. On the July 2020 disability benefits questionnaire, the examiner marked unfavorable ankylosis of the thoracolumbar spine, but in a clarification opinion, a medical expert explained that there was no evidence to support the Veteran having ankylosis and the notation was in error. Moreover, the December 2020 examination showed active flexion to 15 degrees and five degrees of lateral flexion and rotation. As such, the evidence does not show that the Veteran’s thoracolumbar spine is fixed in one position. The evidence also does not show any of the other characteristics of unfavorable ankylosis found in Note 5. The Board finds the preponderance of the evidence is against finding the Veteran has unfavorable ankylosis of the thoracolumbar spine. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence shows the Veteran does not have IVDS. See 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. The VA examiners all found he did not have IVDS. Regarding neurological impairment, the ratings for radiculopathy of the lower extremities are discussed below, and the evidence is against finding any other neurologic impairment associated with the low back disability. The VA examiners found no evidence of other neurologic abnormalities associated with the Veteran’s low back disability. Treatment records also do not show other neurologic abnormalities associated with the low back. 3. A 10 percent rating for right lower extremity radiculopathy associated with the low back disability beginning April 12, 2019 4. A 10 percent rating for left lower extremity radiculopathy associated with the low back disability beginning April 12, 2019 As noted above, neurologic abnormalities associated with the low back disability are to be rated separately. The AOJ awarded two 20 percent ratings for moderate radiculopathy for each leg affecting the sciatic and femoral nerves beginning December 17, 2020. Disabilities affecting the sciatic nerve are assigned a 10 percent rating for mild, 20 percent for moderate, 40 percent for moderately severe, and 60 percent for severe incomplete paralysis, which is marked by muscular atrophy. Complete paralysis, defined as the foot dangles and drips, no active movement possible of muscles below the knee, and flexion of the knee weakened or lost, warrants an 80 percent rating. 38 C.F.R. § 4.124a, DC 8520. Disabilities affecting the anterior crural (femoral) nerve are assigned a 10 percent rating for mild, 10 percent for moderate, and 30 percent for severe incomplete paralysis. Complete paralysis, defined as paralysis of the quadriceps extensor muscles is assigned a 40 percent rating. 38 C.F.R. § 4.124a, DC 8526. After reviewing the record, the Board finds the criteria for a 10 percent rating for the left lower extremity and a 10 percent rating for the right lower extremity mild nerve impairment have been met beginning April 12, 2019. See 38 C.F.R. § 4.124a, DC 8520. Beginning April 12, 2019, the evidence shows radicular pain in the legs. The Veteran complained of radicular pain during treatment in April and May 2019 at the same time the evidence shows increased back pain. The December 2020 examiner corroborated these subjective complaints with the diagnosis of radiculopathy. However, the evidence prior to the December 2020 examination does not show any objective findings of radiculopathy. The VA examiners in July 2015, January 2019, and July 2020 all measured full strength, normal reflexes, and normal sensation in the Veteran’s lower extremities. Therefore, the evidence shows only subjective reports of pain without any findings of more significant symptoms, such as sensory or physical changes. Accordingly, the evidence supports a finding of mild, but not moderate or greater, impairment in the lower extremities from April 12, 2019 to December 17, 2020. Although the December 2020 examiner identified both the sciatic and femoral nerves as being affected by radiculopathy, the only symptom evidenced prior to December 2020 is pain shooting down the legs. Awarding separate ratings for lower extremity nerve pain under the diagnostic codes for the sciatic and femoral nerve would be duplicative and violate the rule against pyramiding. See 38 C.F.R. § 4.14. Thus, the award of 10 percent ratings for left and right radiculopathy is most appropriate. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for the low back disability prior to April 12, 2019, is remanded. Additional development is needed to decide the issue of entitlement to a rating in excess of 10 percent for the back prior to April 2019. During the January 2019 examination, the Veteran reported flare-ups of increased pain. The examiner found that the Veteran would have decreased range of motion during flare-ups and after repeated use over time that would be variable depending on extent of us. Similarly, the Veteran reported flare-ups in back pain during the August 2015 examination. The August 2015 examiner stated that he could not estimate the degrees of loss during flare-ups or after repeated use without conjecture. In Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017), the Court of Appeals for Veterans Claims (CAVC) held that an examiner must try to ascertain information about flare-ups through alternative means, including asking the Veteran to describe additional functional loss and estimating based on his reports, and only then after considering all the lay and medical evidence, can the examiner explain why he or she cannot render an opinion. The AOJ should obtain a medical opinion estimating the Veteran’s functional impairment at the time of the August 2015 and January 2019 examinations in compliance with Sharp. While an examination would not be helpful to evidence this prior time period, the medical expert should consider having a clinical interview, on the phone or otherwise, with the Veteran to obtain his reports of functional limitation at those prior times. Finally, the Board notes that the January 2019 examiner found passive range of motion testing was not advisable and that the Veteran did not experience pain with non-weight-bearing. However, the August 2015 examiner did not address passive range of motion or pain with non-weight-bearing in compliance with 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). On remand, the medical expert should opine as to how the Veteran’s range of motion would have differed if measured during passive motion, whether the Veteran experienced pain with non-weight-bearing, and if so, how such could affect his range of motion at the time of the August 2015 examination. See id. The matters are REMANDED for the following action: Obtain a medical opinion for the Veteran’s low back disability prior to April 16, 2019. The medical expert should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the joint was used repeatedly over a period of time at the time of the August 2015 and January 2019 examinations and, if so, the expert must estimate the range of motion during flares and repeated use. THE EXPERT MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES, INCLUDING BY CLINICAL INTERVIEW IF NECESSARY. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. Additionally, the expert should opine as to how the Veteran’s range of motion would have differed if measured during passive motion, whether the Veteran experienced pain with non-weight-bearing, and if so, how such could affect his range of motion at the time of the August 2015 examination. The expert is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.P. Armstrong 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.