Citation Nr: 21009715 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 18-13 935 DATE: February 23, 2021 ORDER A rating of 40 percent, but no higher, for the Veteran's lumbar spine disability is granted. Service connection for diabetes mellitus is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s lumbar spine disability has been characterized by forward flexion of the thoracolumbar spine limited to 30 degrees or less. 2. The Veteran’s diabetes mellitus did not have its onset during service and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, but no higher, for the Veteran’s lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from January 1985 to May 1985, and October 1990 to April 1991, with additional reserve service. These matters come before the Board of Veterans’ Appeals (Board) from a December 2014 rating decision. In March 2019, the Board remanded the Veteran’s claims to afford the Veteran a new VA examination as to the severity of his lumbar spine disability and to obtain a VA examination regarding the etiology of his diabetes mellitus. The claims have since been returned to the Board for review. For the reasons indicated in the discussion below, the VA examinations conducted pursuant to the Board’s remand instructions were adequate and the agency of original jurisdiction (AOJ) therefore complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show the existence of (1) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases are subject to presumptive service connection if the disease manifests to a compensable degree within one year of separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Lumbar Spine Disability The Veteran’s lumbar spine disability is evaluated under 38 C.F.R. § 4.71a, DC 5237. Throughout the period on appeal, the Veteran’s lumbar spine disability is assigned a 10 percent rating for the period prior to September 25, 2019, a 20 percent rating for the period between September 25, 2019 and November 12, 2019, and a 40 percent rating for the period thereafter. Under DC 5237, a rating of 10 percent is warranted when the evidence demonstrates: • forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; • forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; • combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; • combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; • 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. 38 C.F.R. § 4.71a, DC 5237. A rating of 20 percent is warranted when the evidence demonstrates: • forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; • forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; • the combined range of motion of the thoracolumbar spine not greater than 120 degrees; • 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. Id. A rating of 30 percent is warranted when the evidence demonstrates: • forward flexion of the cervical spine 15 degrees or less; or, • favorable ankylosis of the entire cervical spine. Id. A rating of 40 percent is warranted when the evidence demonstrates: • unfavorable ankylosis of the entire cervical spine; • forward flexion of the thoracolumbar spine 30 degrees or less; or, • favorable ankylosis of the entire thoracolumbar spine. Id. A rating of 50 percent is warranted when the evidence demonstrates: • unfavorable ankylosis of the entire thoracolumbar spine. Id. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In addition, if we have sufficient data to rate the disability under the revised criteria and there is no other reason to remand, please insert the following language: In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. For purposes of the Veteran’s disability, the rating criteria did not change. The Board has reviewed the evidence of record and finds that a rating of 40 percent, but no higher, is warranted throughout the entire period on appeal for the Veteran’s lumbar spine disability. First, the Veteran underwent an in-person VA examination in November 2019 regarding his lumbar spine disability. The Veteran reported experiencing flare-ups that cause severe low back pain and difficulty bending over. The examiner diagnosed lumbosacral strain, degenerative disc disease, lumbar myositis, and left lower extremity radiculopathy. Upon physical examination, the examiner documented that the Veteran’s forward flexion was limited to 0 to 40 degrees. The examiner documented that the Veteran experiences additional functional loss due to flare-ups and determined that this additional loss would cause range of motion to be limited to 0 to 5 degrees in all directions. The examiner also determined that the Veteran’ does not have any guarding or muscle spasms resulting in abnormal gait or spinal contour, does not have invertebral disc disease, and does not have any ankylosis of the spine. Additionally, the Board notes that throughout the period on appeal, the Veteran underwent three other examinations regarding his lumbar spine disability, a VA examination in September 2014, a VA examination in January 2017, and a private examination in September 2019. The Board finds that these examinations failed to properly evaluate the Veteran’s additional functional loss due to flare-ups and additional symptoms such as pain, weakness, fatigability, and incoordination. First, during the September 2014 VA examination, the examiner determined that the Veteran experienced additional functional loss following repetitive testing, including less movement than normal and pain on movement; however, the examiner did not provide estimated range of motion measurements regarding the Veteran’s additional functional loss and stated that providing such data would be mere speculation. Second, during the January 2017 VA examination, the Veteran reported flare-ups following gardening or lifting heavy objects; however, the examiner did not provide estimated range of motion measurements regarding the Veteran’s additional functional loss during a flare-up and stated that opining whether pain, weakness, fatigability, and incoordination significantly limits functional ability during a flare-ups would be based on mere speculation. Lastly, during the September 2019 private examination, the Veteran reported experiencing flare-ups with sitting, standing, and daily activities such as housework. The private examiner noted that the Veteran’s additional functional loss includes less movement than normal, pain on movement, and interference with sitting and standing; however, the private examiner did not provide estimated range of motion measurements regarding the Veteran’s additional functional loss. Thus, the Board finds that these examinations are inadequate for rating purposes. Additionally, the Board notes that the Veteran’s private treatment records and VA treatment records indicate complaints and treatment for chronic low back pain; however, the private treatment records and VA treatment records do not indicate the testing and findings necessary to assign a disability rating. The Board finds that the probative evidence of record demonstrates that a 40 percent rating is warranted throughout the entire period on appeal. Specifically, the November 2019 VA examiner determined that the Veteran’s forward flexion was limited to 0 to 40 degrees and that during a flare-up the Veteran's forward flexion would be further limited to 0 to 5 degrees. Additionally, the September 2019 private examination indicates that the Veteran experiences flare-ups on a very frequent basis with sitting, standing, and daily activities such as housework. The Board finds that this evidence is consistent with the 40 percent rating criteria, which requires forward flexion of the thoracolumbar spine limited to 30 degrees or less. Further, the medical evidence indicates that the Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine, as required to warrant a 50 percent rating. Therefore, the Board finds that a 40 percent rating, but no higher, is warranted throughout the entire period on appeal. Resolving any remaining reasonable doubt in the Veteran’s favor, the Board finds that the requirements for establishing a rating of 40 percent, but no higher, for the Veteran’s lumbar spine disability throughout the entire period on appeal have been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is granted. Diabetes Mellitus The Board has reviewed the evidence of record and finds that service connection is not warranted for the Veteran’s diabetes mellitus. First, in a statement submitted in July 2018, the Veteran asserts that his diabetes mellitus is caused by service. Specifically, the Veteran states that immediately following discharge from active duty, which included service in Southwest Asia, he was diagnosed as having diabetes mellitus. The Veteran states that he currently treats with a private physician and requires medication and insulin injections to control his diabetes mellitus. Further, the Veteran states that many magazines, pamphlets, memos, articles, including some published by VA, indicate a relationship between certain diseases and service in Southwest Asia. The Veteran asserts that one of the diseases for which a relationship has been indicated is diabetes mellitus. The Board has considered the lay statements of the Veteran. Although the Veteran is competent to report his observations and to opine as to some medical matters, his contention that his diabetes mellitus is related to service, including service in Southwest Asia, relates to an internal medical process, which extends beyond an immediately observable cause-and-effect relationship and is the type of evidence that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board notes that the Veteran’s service treatment records (STRs) do not exhibit complaints, treatment, or evidence of diabetes mellitus. During his June 1984 examination, March 1990 examination, and April 1991 separation examination, there are also no indications of diabetes mellitus. Additionally, the Board notes that the Veteran’s complete STRs are unavailable. Accordingly, the Board has a heightened obligation to explain its findings, to evaluate any evidence that may be favorable to the Veteran, and to provide an adequate rationale for rejecting any evidence. Washington v. Nicholson, 19 Vet. App. 362, 371 (2005). Next, the Veteran’s private treatment records indicate treatment for diabetes mellitus. Specifically, private treatment records submitted in October 2019 indicate treatment for diabetes mellitus from February 2015 to the present and indicate that the Veteran's diabetes mellitus is controlled with medication and insulin injections. Additionally, in October 2019, the Veteran submitted a disability and benefits questionnaire regarding his diabetes mellitus. The Veteran’s private physician diagnosed the Veteran as having diabetes mellitus and noted that the Veteran’s diabetes mellitus is controlled by oral medications and insulin injections. The private physician noted that the tests to confirm the Veteran's diagnosis of diabetes mellitus were performed in November 2014, January 2015, and May 2015. Lastly, the Board notes that the Veteran’s VA treatment records also indicate treatment for diabetes mellitus from September 2006 to the present with diet control, foot care, and testing supplies. The Board finds that the Veteran’s private treatment records and VA treatment records demonstrate that the Veteran presently suffers from diabetes mellitus; however, the Veteran’s treating physicians do not provide an opinion regarding the etiology of the Veteran’s diabetes mellitus, and the physicians do not provide an opinion stating that the Veteran’s current diabetes mellitus is caused by or related to service. Therefore, the Board finds that the private treatment records and VA treatment records do not have significant probative value as this evidence does not demonstrate a nexus relationship and it does not demonstrate continuity of symptoms based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). In November 2019 the Veteran underwent an in-person VA examination with claims file review regarding diabetes mellitus. The examiner documented that the Veteran has a diagnosis of diabetes mellitus. The Veteran reported that the onset of his diabetes mellitus was in approximately 1993 or 1994. The examiner documented that the Veteran’s diabetes mellitus is controlled by a restricted diet, oral medication, and insulin injections. The examiner opined that it is less likely than not that the Veteran's diabetes mellitus is caused by or related to service. In the rationale, the examiner stated that the Veteran’s STRs are silent for elevated blood sugar levels or a diagnosis of diabetes mellitus. Further, the examiner stated that the Veteran was diagnosed as having diabetes mellitus over one year following separation from service. Next, the examiner stated that there is no medical evidence reported to support any etiological link between diabetes mellitus and environmental exposures resulting from service in Southwest Asia. Lastly, the examiner cited to medical literature discussing the known medical process, causes, and risk factors for diabetes mellitus. Specifically, the examiner noted that diabetes mellitus is caused by a combination of varying degrees of insulin resistance and relative insulin deficiency. Further, the examiner stated that the occurrence of diabetes mellitus most likely represents a complex interaction among many genes and environmental factors, including increased weight gain and decreased physical activity. The Board finds the results of the November 2019 VA examination to be highly probative in reaching its conclusion that the Veteran’s diabetes mellitus is not related to service. First, the examiner reported that the Veteran was not diagnosed as having diabetes mellitus until over one year following separation from service. Therefore, the Board finds that as the Veteran was not diagnosed as having diabetes mellitus manifested as at least 10 percent disabling within one year of separation from service, he is not entitled to presumptive service connection pursuant to C.F.R. §§ 3.307, 3.309. Moreover, the examiner noted that the Veteran’s STRs are silent for evidence regarding diabetes mellitus and that the Veteran was not diagnosis as having diabetes mellitus until at least 1993; therefore, the Board finds that the evidence does not support a finding of service connection by demonstrating continuity of symptoms. Next, the examiner stated that there was no nexus relationship between diabetes mellitus and the Veteran’s service, including service in Southwest Asia. Specifically, the examiner stated that the established medical literature does not support any nexus relationship between diabetes mellitus and service in Southwest Asia. Further, the examiner also cited to medical literature and explained the known medical process, causes, and risk factors for diabetes mellitus, which do not include and are not related to service in Southwest Asia. Thus, the Board finds that the evidence of record does not support a finding of continuity of symptoms or a nexus relationship between service and the Veteran’s diabetes mellitus. Accordingly, the Board finds that the preponderance of the evidence is against the claim of service connection for diabetes mellitus, and there is no doubt to be (Continued on next page) otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.