Citation Nr: 21010676 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-36 171 DATE: February 25, 2021 ORDER Entitlement to an increased disability rating in excess of 20 percent for residuals of a service-connected lumbar spine condition is denied. FINDING OF FACT The Veteran’s increased spine symptomatology is due to a separate non-service-connected lumbar spine condition. CONCLUSION OF LAW The criteria for entitlement to an increased disability rating in excess of 20 percent for residuals of a service-connected lumbar spine condition have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5235. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1984 to June 1986. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of September 2014 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in November 2014. The RO issued a statement of the case (SOC) in July 2015 and the Veteran’s timely appeal to the Board followed in September 2015. Because the Veteran did not request a hearing in his appeal to the Board, no hearing before the undersigned Veterans Law Judge (VLJ) was scheduled. The Board previously remanded this case in August 2018 and September 2019 for further development, including additional medical records and a current VA examination. After reviewing the evidence of record, the Board finds that the RO has substantially complied with its remand directives and will therefore adjudicate the Veteran’s claim on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). 1. Entitlement to an increased disability rating in excess of 20 percent for residuals of a service-connected lumbar spine condition. Before addressing the merits of the Veteran’s claim, the Board briefly clarifies the unusual procedural history of this case. The record reflects that the Veteran is service-connected for a lumbar spine condition, diagnosed as residuals of a compression fracture of the L-1 vertebra. See May 2018 Rating Codesheet at 1. This injury was sustained during a motor vehicle accident. See September 1986 VA Examination Report at 3. A rating decision of November 1994 assigned a 20 percent disability rating from June 1986 for this condition. See November 1994 Rating Decision at 1. With the exception of a temporary total rating assigned for a period of surgery and associated convalescence in 2014, this condition has remained rated as 20 percent disabling from June 1986. See May 2018 Rating Codesheet at 1; see also 38 C.F.R. § 4.30 (providing that total disability ratings may be assigned on a temporary basis following surgical care requiring periods of convalescence). In July 2013, the Veteran filed for an increased disability rating for this condition. Shortly thereafter, he was diagnosed with an additional lumbar spine condition, identified as spinal stenosis. See August 2013 VA Examination Report at 2. This additional diagnosis was service-connected and incorporated into the Veteran’s previous lumbar spine condition in a rating decision of July 2015. However, the RO subsequently severed service connection for this additional diagnosis in a rating decision of October 2016, finding that multiple VA examinations of 2013 and 2014 supported the conclusion that the Veteran’s additional diagnosis was not the result of his service-connected lumbar spine condition. See July 2016 Rating Decision at 2-4 (providing proposal and analysis); see also October 2016 Rating Decision (implementing decision). The Veteran did not timely appeal this decision to the Board. However, the Veteran has subsequently filed a claim to reopen this decision, which is currently pending before the RO. See August 2018 VA Form 21-526EZ at 2. Accordingly, the issue of entitlement to service connection for this additional diagnosis is not before the Board at this time. The evidence of record clearly supports the inference that the total severity of the Veteran’s spine-related symptoms has increased over time, resulting in additional functional impairment. See 38 C.F.R. § 4.71a (providing that the Veteran’s service-connected lumbar spine condition is rated under the General Rating Formula for Diseases and Injuries of the Spine); see also id. (providing that under this General Rating Formula, higher disability ratings may be warranted by increased limitations of forward flexion of the thoracolumbar spine); see also August 2013 VA Examination Report at 3 (finding forward flexion to 40 degrees); cf. October 2016 VA Examination Report at 2 (finding forward flexion to 30 degrees); cf. January 2020 VA Examination Report at 4-5 (finding forward flexion to 30 degrees, further limited to 10 degrees during flare-ups). The Board notes that the VA has previously addressed how overlapping symptoms of service-connected and non-service-connected conditions are to be compensated: The need to distinguish the effects of one condition from those of another… occurs whenever two conditions, one service-connected and one not, affect similar functions or anatomic areas. When it is not possible to separate the effects of the conditions, VA regulations… require that reasonable doubt on any issue be resolved in the claimant’s favor [and] clearly dictate that such signs and symptoms be attributed to the service-connected condition. See 61 Fed. Reg. 52695, 52698 (Oct. 8, 1996) (emphasis added); see also 38 U.S.C. § 7104(c) (providing that the Board “shall be bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department); see also Mittleider v. West, 11 Vet. App. 181, 182 (1998) (remanding for further consideration where the Board had not adequately addressed applicability of these regulations to overlapping psychiatric conditions). Because the issue of service connection for the Veteran’s spinal stenosis is not before the Board, the relevant inquiry for the Board in this case is therefore whether it is at least as likely as not that the increased functional impairment noted above is due to the Veteran’s service-connected lumbar spine condition. After reviewing the evidence of record, the Board concludes that this threshold has not been met. In reaching this conclusion, the Board particularly notes several pieces of relevant evidence. In December 2013, a VA examiner reviewed the Veteran’s claims file and stated that: Per the medical literature, simple wedge fractures demonstrate less than 10-30 percent compression and generally cause no neurologic impairment since the middle column remains intact. [The] Veteran’s [1993] baseline x-ray showed minimal wedging of L1 and the repeat film in 1996 indicated that it was stable and “likely a normal variation.” The multilevel DDD and canal stenosis noted on the [2013] MRI is not related to the variant and/or the simple wedge fracture noted on his baseline x-ray and is “probable congenital canal stenosis”… [the] Veteran’s pain, [lower extremity] radiculopathy and decrease in [range of motion] would be related to the new diagnosis and not to the distant history of the simple wedge fracture. See January 2014 Medical Treatment Records at 1-2 (emphasis added). In March 2014, a VA treating physician disagreed, stating that: The degree of [thoracolumbar] junction wedging (kyphosis) is sufficient to create an increase in necessary lumbar lordosis, which will by its nature worsen low lumbar spinal stenosis due to an increase in redundancy of ligamentum flavum. Presuming [the Veteran] had the [thoracolumbar junction wedging] (T11, T12, L1) as a result of this remote accident or documented at his eval in 1993, it is more likely than not that this contributes [to] and further aggravates his [lumbar] stenosis, hence would be service connected. See April 2014 Medical Treatment Records at 1. An additional August 2014 VA examiner agreed with the previous December 2013 examiner, stating that: [The Veteran’s] SC injury that affected his L1 vertebra compression fracture, according to the orthopedic surgeon who wrote the [March 2014] opinion… could create conditions that would worsen lumbar stenosis. However, it would have had to occur within the first 3-5 years after the injury. Since the development of stenosis developed after this period of time it is less likely than not that his SC lumbar spine condition caused or aggravated his lumbar stenosis. See September 2014 VA Medical Opinion at 3 (emphasis added). In response, the March 2014 treating physician recanted his opinion in an addendum of September 2014, stating that: While the anatomical nature of an increase in kyphosis could cause ligamentum flavum redundancy (hence [service] connection), the onset of known neurogenic claudication was not temporally connected as best as I can tell… [if] he had known/documented lower extremity symptoms within no more than 3-5 years after his [motor vehicle accident], the timing of onset would allow reasonable suspicion/evidence of service connection. I am not aware of known or documented lower extremity neurogenic symptoms, until more recently (25+ years after the MVA). However, I have not had an opportunity to peruse his old records. See September 2014 Medical Treatment Records at 1. The Veteran has submitted additional medical records describing his ongoing treatment for spine symptoms. However, these records do not provide additional opinions as to whether his symptoms can at least as likely as not be attributed to his service-connected lumbar spine condition. See July 2015 Medical Treatment Records. In November 2016, an additional VA examiner again addressed the etiology of the Veteran’s increased symptoms, stating as follows: [The Veteran’s] current disability related to his back is from a NON SERVICE CONNECTED disability of herniated disc at L4-5 at least as likely as not related to his 20 years of service as a police officer… there is not a clear trail of recurrent issues of the low back until 2013/2014 time frame when he was found to have [herniated] disc and compression at L4-5[,] underwent a laminectomy, later that year he underwent a fusion of L4-5, he has continued to have trouble with his low back and 5 months ago had [laminectomy] and fusion of L5-S1. He worked as a police officer for past 20+ years. In 1993 his xrays showed the L1 wedging but otherwise nothing else related to his lumbar spine. His initial compression fracture was at T1 which resolved and did not subsequently cause him issues again. See November 2016 VA Examination Report at 1 (capitalization in original). The Board notes that it assigns this particular opinion no probative weight because it does not provide a conclusion with the relevant degree of certainty; as discussed above, the relevant question in this case is whether it is at least as likely as not that the Veteran’s increased functional impairment due to his service-connected lumbar spine condition. In other words, a medical opinion attributing symptoms or diagnoses to a non-service-connected etiology must assess whether such an etiology is more likely than not. 38 U.S.C. § 5107. However, the Board still includes this particular opinion in its analysis because its review of the relevant evidence, including the importance of his early symptoms, is consistent with the previous VA examiners of record. The January 2020 VA examiner reached a different conclusion from the previous examiners of record, stating that “the new diagnoses of [degenerative] arthritis of the spine, [intervertebral] disc syndrome[,] spinal stenosis, [sacroiliitis], and s/p lumbar fusion are a progression of the VA established diagnosis of status post compression fracture of L-1 vertebra.” See January 2020 VA Examination Report at 10. Because the January 2020 VA examiner did not explain the reasoning and analysis supporting this conclusion, an additional VA examiner reviewed the Veteran’s claims file in October 2020. However, the October 2020 VA examiner’s supplemental opinions also did not adequately support their confirmation of the January 2020 examiner’s findings with sufficient reasoning. See October 2020 VA Examination Report (Stenosis) at 2 (providing only that “[compression] fracture of the vertebrae can increase the risk of spinal stenosis due to increased friction between the vertebrae[,] [therefore] the spinal stenosis is at least as likely as not proximately due to the result of residuals, compression fracture, L1 vertebra”); see also October 2020 VA Examination Report (IVDS) (likewise providing that “[compression] fracture of the vertebrae can increase the risk of IVDS due to compression or inflammation of the spinal nerve root… the IVDS is at least as likely as not proximately due to the result of residuals, compression fracture, L1 vertebra”). The Board particularly notes that neither the January 2020 examiner nor the October 2020 examiner addressed a key component of the August 2014 examiner’s opinion, which was echoed in the March/September 2014 treating physician’s addendum: namely, that if the Veteran’s service-connected lumbar spine condition had contributed to his subsequent spinal stenosis, additional symptoms would have been expected to manifest “within no more than 3-5 years after his [motor vehicle accident.]” See September 2014 Medical Treatment Records at 1. “[Most] of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight… if it contains only data and conclusions.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board assigns the findings of the December 2013 and August 2014 examiners, supplemented by the March/September 2014 physician’s addendum, greater probative weight than the findings of the January and October 2020 examiners. Finally, the Board notes an additional complicating factor in this case: namely, that the original copy of the Veteran’s claims file was lost. See January 1992 VA Memorandum. While this does not alter the applicable legal standard in this case or otherwise create a heightened “benefit of the doubt,” it does impose a heightened duty on the Board “to consider the applicability of the benefit of the doubt [doctrine], to assist the claimant in developing his claim, and to explain its decision when the veteran’s medical records have been destroyed.” See Russo v. Brown, 9 Vet. App. 46, 51 (1996) (internal citation omitted). Despite this loss, early records from the Veteran’s claims file appear to have been at least partially reconstructed. See January 1992 VA Memorandum; see also May 1994 Medical Treatment Records; see also September 1986 VA Examination Report. The Board particularly notes that a rating decision of November 1994 observed “[complaints] of low back pain with radiation down the right leg” in March 1993. See November 1994 Rating Decision at 3. This is relevant to the Board’s adjudication because, as discussed above in the VA examiners’ reports, if the Veteran’s increased symptoms are attributable to his original service-connected lumbar condition they would be expected to manifest within 3 to 5 years of his original motor vehicle accident during his active-duty service. See January 2014 Medical Treatment Records at 1-2; see also September 2014 VA Medical Opinion at 3; see also September 2014 Medical Treatment Records at 1. Instead, the available evidence of record for this early time period shows only the baseline level of impairment, without indication of increasing symptoms. See September 1986 VA Examination Report at 3 (providing October 1986 examiner’s notes that the Veteran “continued to have discomfort in his back since [the motor vehicle accident],” but that “the pain is fairly constant” and that “there is no radiation of the pain to areas other than… between the scapula”); see also May 1994 Medical Treatment Records at 69 (providing VA examination of March 1988 finding only “[stiffness] and some decreased range of motion of the right elbow… [but] [otherwise] excellent range of motion” in the back and extremities); see also id. at 70 (finding no neurological abnormalities). The Board thus concludes that it has found no evidence in the claims file sufficient to rebut the December 2013 VA examiner’s original conclusion that the Veteran’s increased spine symptomatology is more likely than not due to his non-service-connected lumbar spine condition. The Board has carefully considered the doctrine of the benefit of the doubt, but concludes that it is not applicable because the balance of the evidence of record as discussed above is against the Veteran’s claim. 38 U.S.C. § 5107; see also Russo, 9 Vet. App. at 51. An increased disability rating in excess of 20 percent for the Veteran’s service-connected lumbar spine condition is therefore not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5235, General Rating Formula. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.