Citation Nr: 21008750 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-32 547 DATE: February 17, 2021 ORDER A 10 percent rating for degenerative disc disease of the thoracolumbar spine from February 4, 2004, to October 29, 2004, but not prior, is granted. An initial compensable rating for degenerative disc disease of the cervical spine prior to October 29, 2004, is denied. A rating in excess of 40 percent is denied, but a 40 percent rating for degenerative disc disease of the thoracolumbar spine beginning August 9, 2007, but not earlier, is granted. A 20 percent rating for degenerative disc disease of the cervical spine beginning August 9, 2007, but not earlier, is granted. REMANDED A rating in excess of 20 percent for degenerative disc disease of the cervical spine from August 9, 2007, is remanded. A rating in excess of 10 percent prior to November 6, 2006, and in excess of 30 percent thereafter for allergic rhinitis is remanded. Entitlement to compensation for total disability individual unemployability (TDIU), separate from the 100 percent rating for posttraumatic stress disorder (PTSD) effective December 19, 2017, is remanded. FINDINGS OF FACT 1. Beginning February 2, 2004, the evidence shows pain/tenderness and muscle spasm not resulting in abnormal gait or spinal contour of the thoracolumbar spine. 2. There is no evidence of a compensable level of disability in the neck prior to October 29, 2004, or in the back prior to February 4, 2004. 3. Resolving doubt in the Veteran’s favor, the evidence shows her cervical and thoracolumbar flexion were limited to 30 degrees beginning August 9, 2007, but the evidence does not show such limitation before. 4. The evidence does not show unfavorable ankylosis, or symptoms analogous to unfavorable ankylosis, of the thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating for degenerative disc disease of the thoracolumbar spine from February 4, 2004, to October 29, 2004, but not prior, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242-5243 (2001), (2002), (2020). 2. The criteria for an initial compensable rating for degenerative disc disease of the cervical spine prior to October 29, 2004, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242-5237 (2001), (2002), (2020). 3. The criteria for a 40 percent rating, but not higher, for degenerative disc and joint disease of the thoracolumbar spine have not been met beginning August 9, 2007, but not before. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243. 4. The criteria for a 20 percent rating for degenerative arthritis of the cervical spine have been met beginning August 9, 2007. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from March 1977 to February 1980. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). 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. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to give evidence of symptoms observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Disabilities of the Spine The Veteran contends that she is entitled to higher ratings for the degenerative disc and joint disease of her thoracolumbar spine (back disability) and degenerative arthritis of her cervical spine (neck disability). 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). The Veteran’s back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242-5243 and her neck disability is rated under Diagnostic Code 5242-5237. The criteria for evaluating spine disabilities were amended effective September 23, 2002, and again on September 26, 2003. Prior to September 26, 2003, the criteria for spine disabilities addressed different ailments of the spine, such as ankylosis, limitation of motion, intervertebral disc syndrome, and lumbosacral strain. The Veteran is service connected for degenerative disc disease, not lumbosacral strain, and the evidence does not show ankylosis of either her cervical or thoracolumbar spine. Therefore, the Board finds her spine disabilities should be rated based on limitation of motion or intervertebral disc syndrome (IVDS) for the period prior to September 26, 2003. Under Diagnostic Code 5292, limitation of motion of the lumbar spine was assigned a 10 percent rating for slight limitation, a 20 percent rating for moderate limitation, and a 40 percent rating for severe limitation. Limitation of the dorsal spine was assigned a zero rating for slight limitation and 10 percent rating for both moderate and severe limitation under Diagnostic Code 5291. Diagnostic Code 5290 provided for a 10 percent rating for slight limitation of motion of the cervical spine, 20 percent for moderate limitation of the cervical spine, and 30 percent for severe limitation of motion of the cervical spine. 38 C.F.R. § 4.71a (2002). The Diagnostic Code for IVDS as amended in September 2002 provides for IVDS ratings based on incapacitating episodes or based on the combination of orthopedic and neurologic manifestation, whichever results in a higher rating. For incapacitating episodes, Diagnostic Code 5293 provides for a 10 percent rating for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period, a 20 percent rating for incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period, and 40 and 60 percent ratings for more frequent incapacitating episodes. 38 C.F.R. § 4.71a (2002). The criteria prior to September 23, 2002, provided for a 10 percent rating for mild IVDS symptoms, a 20 percent rating for moderate symptoms with recurring attacks, a 40 percent rating for severe symptoms with recurring attacks and intermittent relief, and a 60 percent rating for pronounced condition with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurologic findings appropriate to the site of diseased disc with little intermittent relief. 38 C.F.R. § 4.71a (2001). Beginning September 26, 2003, 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, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 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. 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, 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. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. 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 (2003). 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. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 1. A 10 percent rating for degenerative disc and joint disease of the thoracolumbar spine from February 4, 2004, to October 29, 2004 2. An initial compensable rating for degenerative arthritis of the cervical spine prior to October 29, 2004 After resolving doubt in the Veteran’s favor, the Board finds the criteria for a 10 percent rating, but not higher, for the back disability have been met from February 4, 2004 to October 29, 2004, but the criteria for initial compensable ratings for the neck disability have not been met prior to October 29, 2004 or for the back disability prior to February 4, 2004. 38 C.F.R. § 4.71a (2001), (2002), (2020). In the August 2009 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for the back and neck with the effective date of November 10, 1983, based on the date of the Veteran’s original claim and receipt of new service treatment records. However, because her prior claims had been denied, there is little to no evidence of the condition of her neck and back disabilities prior to 2003. The Veteran filed claims for her upper back in November 1983 and July 1994, but neither form includes a description of her disability, only an identification of the disability. In a March 1995 statement, the Veteran identified treatment for her allergy and upper back conditions at the VA medical center in St. Albans. Records from St. Albans dated 1989 to 1994 were obtained; these records show treatment for allergies and other conditions but do not mention the neck, back, or spine. In a May 2000 statement, the Veteran identified treatment at VA medical centers in Brooklyn from 1997-2000, Columbia and Charleston from approximately 1993 to 1996, and St. Albans prior to 1993. VA obtained treatment records from Brooklyn, St. Albans, and Columbia aligning with the dates the Veteran listed. Again, none of these records showed complaints of or treatment for the neck, back, or spine prior to 2003. Although the AOJ did not obtain records from Charleston, the Board finds the search conducted by the AOJ to be thorough and complete as the search results include records from East Orange, which is a facility not identified by the Veteran. Moreover, the limited relevant VA treatment records prior to October 29, 2004, do not suggest the Veteran suffered from a compensable neck disability during that period. An August 2003 treatment record notes shoulder pain that had resolved and the Veteran denying having any neck pain. There are no other treatment records for the neck prior to October 29, 2004 or for the back prior to February 2, 2004. Unfortunately, there is simply no evidence to rise to the level of equipoise to allow the Board to grant a compensable rating for the neck disability prior to September 26, 2003, or for the back disability prior to February 4, 2004. The Board finds the evidence shows pain and muscle spasm not resulting in abnormal gait or spinal contour to warrant a 10 percent rating from February 4, 2004 to October 19, 2004. A February 2004 treating provider documented left back and hip pain and diagnosed mild left paraspinal muscle spasm of the lumbar spine and acute mechanical low back pain. Resolving doubt in the Veteran’s favor, the evidence shows and mild condition of pain/tenderness and muscle spasm of the lumbar spine. A 10 percent rating is warranted from February 4, 2004, to October 29, 2004, when the Veteran has been assigned a 20 percent rating. There is no evidence of range of motion measurements or abnormal gait or spinal contour to warrant a 20 percent rating prior to October 29, 2004. 3. A rating in excess of 20 percent from October 29, 2004, to April 25, 2018, and in excess of 40 percent thereafter for degenerative disc and joint disease of the thoracolumbar spine 4. A rating in excess of 10 percent from October 19, 2004, to September 13, 2017, for degenerative arthritis of the cervical spine After reviewing the record and resolving doubt in the Veteran’s favor, the Board finds the criteria for a 40 percent rating for the Veteran’s back disability and a 20 percent rating for her neck disability have been met since August 9, 2007, but not prior. See 38 C.F.R. § 4.71a, DC 5242-5243. First, the evidence shows the Veteran’s back was functionally limited to 30 degrees or less of flexion prior to April 2018. The June 2009 examiner measured the Veteran’s thoracolumbar flexion to 40 degrees. The VA examiners in December 2017 and April 2018 measured the Veteran’s flexion to 70 degrees and 30 degrees, respectively. At the Board’s request, a medical expert opined as to how the Veteran’s back motion would be affected with repeated use over time and during flare-ups based on the June 2009 and December 2017 examinations. In the September 2019 opinion, the expert found that the Veteran would experience flexion limited to 15 degrees due to pain, fatigue, and weakness from repeated use over time and flare-ups. Based on this evidence, the Board finds the Veteran’s flexion was functionally limited to 30 degrees or less at least as far back as the June 2009 examination. Similarly, the evidence shows the Veteran’s neck was functionally limited to 30 degrees or less of flexion prior to September 13, 2017. A treating provider on August 12, 2015, recorded the Veteran’s neck flexion to 30 degrees. Additionally, the VA examiner in June 2009 measured the Veteran’s cervical spine flexion to 35 degrees. The Board requested an opinion addressing how functional loss of the neck would present during flare-ups and repeated use over time, including during the June 2009 examination. In the September 2020 opinion, a medical expert indicated that the Veteran would experience cervical flexion limited to 30 degrees with repeated use and 20 degrees during flare-ups. Accordingly, the evidence shows the Veteran was functionally limited to 30 degrees or less of flexion beginning at least as far back as the June 2009 examination. The Board has assigned the effective date of August 9, 2007, for the increases in the back and neck ratings as this is the date the evidence first shows the Veteran reported her conditions had worsened. During the August 2007 Board hearing, the Veteran reported her back and neck were getting worse with increased frequency of muscle spasms and pain with moving and walking. As discussed below, the evidence does not suggest the Veteran’s neck and back disability presented with the same level of functional impairment prior to August 9, 2007. There are no range of motion measurements in the record prior to the June 2009 examination. A June 2006 VA treatment record shows upper and lower back pain described as two to three out of 10. The Veteran was prescribed physical therapy twice per week and given a TENS unit to try. In July 2006, the Veteran had an initial evaluation for physical therapy during which the discussed goal was to decrease her pain from a four to a two out of 10. An August 2006 record shows continued pain treated with heat packs, the TENS unit, and physical therapy exercises. The Board finds these records evidence less pain and functional impairment than that found on the June 2009 examination. Specifically, during the 2009 examination, the Veteran described moderate to severe pain in her whole back as well as use of a neck collar and back support at night. Moderate to severe pain would reasonable be described as five or greater on the 10-point pain scale, which suggests the pain had increased from the prior years when she described it as ranging from two to four out of 10. Additionally, the Veteran described impairments to walking and lifting and use of a back support and neck collar that were not evidenced in the record previously. Thus, the Board finds the evidence supports a worsening in the Veteran’s neck and back disabilities first evidenced in the August 9, 2007, hearing. The evidence does no show thoracolumbar or cervical flexion limited to 30 degrees prior to August 9, 2007, to warrant assignment of the 40 and 20 percent ratings for the back and neck. Next, the evidence does not support a rating in excess of 40 percent for the back disability. Under the General Rating Formula, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine to warrant a rating in excess of 40 percent. The Board acknowledges the Veteran’s lay reports of symptoms and functional loss due to pain, including limitations in walking more than short distances and with prolonged standing and sitting, but the medical evidence does not show that the Veteran has unfavorable ankylosis. The VA examiners specifically indicated the Veteran did not have ankylosis, and treatment records also do not show diagnosis of ankylosis. Moreover, the Veteran’s symptoms do not more nearly approximate the entire thoracolumbar spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5. Instead, the examiners documented that the Veteran was able to move and bend her back, and she had greater function than that of a fixed position. Accordingly, the evidence does not show unfavorable ankylosis, or analogous impairment, to warrant a rating in excess of 40 percent for the back disability. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. As noted above, the Schedule for Rating IVDS based on incapacitating episodes provides for ratings based on the frequency of incapacitating episodes in a 12-month period with the maximum, 60 percent rating for IVDS with incapacitating episodes having a total duration of at least six weeks during the prior 12 months. While the evidence shows the Veteran has IVDS, she is better served by the separate ratings assigned for her back and lower extremity radiculopathy, which allow for the possibility of combined ratings greater than she would receive for a single rating based on incapacitating episodes. Moreover, the evidence does not show she has incapacitating episodes having a total duration of at least six weeks during a 12-month period. On the October 2017 disability benefits questionnaire (DBQ), Dr. C.N. indicated that the Veteran’s IVDS caused incapacitating episodes for less than one week in the prior 12 months. Similarly, the April 2018 VA examiner found the Veteran’s IVDS did not cause incapacitating episodes in the prior 12 months. Accordingly, the evidence does not show the Veteran’s low back disability could receive a rating in excess of 40 percent based on incapacitating episodes. Regarding neurological impairment, the Veteran was granted service connection with separate disability ratings for radiculopathy of the upper and lower extremities associated with her back and neck disabilities in the June 2018 rating decision. She did not appeal either the rating or the effective date assigned for radiculopathy. Further, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with her back and neck disabilities. The examiners in June 2009, October 2017, December 2017, and April 2018 found no evidence neurologic abnormalities associated with the back or neck, other than radiculopathy. The Board finds the opinions of these medical experts highly probative as they have the requisite education and experience to determine whether a symptom is etiologically related to a spine disability, and they are consistent in their findings. Additional ratings are not appropriate. Whenever possible, the Board has afforded the Veteran the benefit of the doubt, and the preponderance of the evidence is against the Veteran’s claim for ratings in excess of those assigned herein. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. A rating in of 20 percent for degenerative disc disease of the cervical spine from August 9, 2007, is remanded. Clarification is needed for the neck disability. The Veteran’s cervical spine flexion was recorded to 35 degrees in June 2009, 30 degrees in August 2015, 20 degrees in October 2017, 35 degrees in December 2017, and 20 degrees in April 2018 (after three repetitive movements). In addition to the measurements discussed above, the September 2020 medical opinion also states that the Veteran “loses significant ROM (at least 50% or greater) from [her] baseline with repeated use overtime and during flare-ups due to pain, fatigue, and weakness.” Fifty percent of the measurements taken in August 2015, October 2017, and April 2018 would be 15 or 10 degrees of flexion, which could satisfy the criteria for a 30 percent rating for the neck. However, as this statement is conflicting with the measurements provided in the subsequent, addendum opinion, it is unclear whether the medical expert meant that the Veteran would experience 50 percent of total possible flexion (22.5 degrees) or 50 percent of the flexion she exhibited on those evaluations. A clarification opinion would be helpful. 2. A rating in excess of 10 percent prior to November 6, 2006, and in excess of 30 percent thereafter for allergic rhinitis is remanded. The Veteran’s allergic rhinitis is rated under Diagnostic Code 6522, which provides for a maximum, 30 percent rating, which the Veteran has been awarded since November 2006. 38 C.F.R. § 4.97. However, she contends her allergic rhinitis should receive a higher rating. On the October 2017 DBQ and April 2018 examination, the evaluators listed headaches as symptoms reported with allergic rhinitis. Headache is not a symptom specifically considered by the Diagnostic Code for allergic rhinitis. The Board finds an additional examination and medical opinion would be helpful to provide information about this headache symptom. 3. Entitlement to compensation for TDIU prior to, and separate from, the 100 percent rating for PTSD effective December 19, 2017, is remanded. The Veteran has asserted that she is unable to work due to her service-connected spine and allergic rhinitis disabilities. As such, TDIU is considered part of her appeal for increased ratings for her spine and rhinitis. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Development requested on remand for the rhinitis and neck claims may have a bearing on the outcome of the TDIU claim. Therefore, the TDIU appeal is intertwined and also remanded. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Request an addendum opinion from the September 2020 medical expert, or another appropriate expert if that expert is unavailable, to determine how pain, fatigue, weakness, and incoordination could affect the Veteran’s cervical flexion during flare-ups and after repeated use over time based on the measurements taken during the June 2009, October 2017, December 2017, and April 2018 evaluations. Specifically, the expert should address the apparent inconsistency between the opinion offered on September 18, 2020, of 50% or greater limitation, and that offered on September 28, 2020, finding 20 and 30 degrees of flexion. The opinion should be expressed in terms of degree of limitation of motion, if possible. The expert should consider the Veteran’s reports of how her neck disability manifested during flare-ups and after repeated use that can be found in the record. 3. Request an examination for the Veteran’s headaches. The examiner should measure and record the frequency and severity of headaches, as well as provide an opinion as to whether the Veteran’s reported headaches are at least as likely as not a symptom of her service-connected allergic rhinitis. The examiner should consider all relevant lay and medical evidence, including the October 2017 DBQ and April 2018 examination. 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.