Citation Nr: 21011364 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 20-00 374A DATE: March 1, 2021 ORDER Entitlement to an increased disability rating in excess of 20 percent for a lumbar spine condition is denied. Entitlement to an increased disability rating of 30 percent, but no higher, prior to October 2012 for a respiratory condition is granted. Entitlement to an increased disability rating in excess of 30 percent from October 2012 for a respiratory condition is denied. REMANDED Entitlement to a compensable disability rating for right lower extremity radiculopathy associated with the Veteran’s lumbar spine condition prior to November 2019, and in excess of 10 percent thereafter, is remanded. Entitlement to a compensable disability rating for left lower extremity radiculopathy associated with the Veteran’s lumbar spine condition prior to November 2019, and in excess of 10 percent thereafter, is remanded. Entitlement to an increased disability rating in excess of 20 percent for a cervical spine condition is remanded. FINDINGS OF FACT 1. The Veteran’s lumbar spine condition has not manifested as favorable ankylosis or as forward flexion of 30 degrees or less, nor as incapacitating episodes having a total duration of four to six weeks during a twelve-month period. 2. Prior to October 2012, the Veteran’s respiratory condition required daily inhalational bronchodilator therapy. 3. From October 2012, the Veteran’s respiratory condition has not manifested as forced expiratory volume (FEV-1) of 40 to 55 percent predicted, as forced vital capacity (FVC) of 40 to 55 percent, as requiring at least monthly visits to a physician for care of exacerbations, or as requiring courses of systemic corticosteroids at least three times per year. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased disability rating in excess of 20 percent for a lumbar spine condition have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5423. 2. Prior to October 2012, the criteria for entitlement to an increased disability rating of 30 percent, but not higher, for a respiratory condition have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, Diagnostic Code 6602. 3. From October 2012, the criteria for entitlement to an increased disability rating in excess of 30 percent for a respiratory condition have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, Diagnostic Code 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1993 to January 1999. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a rating decision of September 2011 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Following the rating decision on appeal, the Veteran timely filed her notice of disagreement (NOD) in August 2012. The RO issued a statement of the case (SOC) in December 2019 and the Veteran’s timely appeal to the Board followed in January 2020. The record reflects that the Veteran requested a hearing, but later withdrew this request. See January 2020 VA Form 9; see also June 2020 Correspondence. Accordingly, the Veteran’s hearing request is deemed withdrawn. Before addressing the merits of the Veteran’s claims, the Board briefly notes that the Veteran’s disability rating for her lumbar spine condition was decreased to 10 percent in a rating decision of September 2013. However, her 20 percent rating was restored in a subsequent decision of December 2019. See December 2019 Rating Decision at 2-5. Accordingly, the issue of whether the rating reduction was proper is not before the Board at this time. Additionally, a rating decision of November 2019 increased the disability rating for the Veteran’s respiratory condition to 30 percent from October 2012. Because the Veteran’s appeal was only partially granted and the Veteran has not withdrawn this claim, this issue remains before the Board. Increased Ratings Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for a higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability rating decisions. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant 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). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable Diagnostic Code pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80 (1997). In determining if a higher rating is warranted on this basis, pain alone does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance as provided in 38 C.F.R. §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. Entitlement to an increased disability rating in excess of 20 percent for a lumbar spine condition. The Veteran’s spine condition is rated as 20 percent disabling throughout the rating period on appeal under Diagnostic Codes (DC) 5242 and 5243. See December 2020 Rating Codesheet at 2. The applicable rating criteria provide that these DC, among others, are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). See 38 C.F.R. § 4.71a. Alternatively, lumbar spine conditions rated under DC 5243 may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula) if such an evaluation would result in a higher disability rating. Id. Under the General Rating Formula, a disability rating in excess of 20 percent for a lumbar spine condition is not assigned unless there is favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine is limited to 30 degrees or less. See 38 C.F.R. § 4.71a, General Rating Formula; see also id. (noting that the provisions of the General Rating Formula apply “[with] or without symptoms such as pain… stiffness, or aching in the area of the spine affected”). The Veteran underwent VA examinations on this issue in March 2011, August 2013, and November 2019, and has submitted a Disability Benefits Questionnaire (DBQ) completed by a private medical examiner in April 2019. Each of the three VA examiners found that the Veteran’s lumbar spine condition did not manifest as ankylosis and did not restrict forward flexion to 30 degrees or less, even when considering additional functional impairment due to pain. See March 2011 VA Examination Report at 7 (noting flexion to 60 degrees and noting no additional loss of range of motion due to pain); see also August 2013 VA Examination Report at 9-10 (noting flexion to 85 degrees); see also id. at 11 (noting no additional functional loss due to other factors); see also December 2019 VA Examination Report at 3 (noting flexion to 45 degrees); see also id. at 6 (noting no additional functional loss due to other factors). The Board notes that the April 2019 private medical examiner’s DBQ found flexion limited to 40 degrees. See October 2019 DBQ at 2. The April 2019 private examiner also found several contributing factors, including pain, which contributed to additional functional loss. See id. at 4. However, the private examiner did not estimate that these factors resulted in any measurable difference in the Veteran’s limitation of motion. See id. at 5. While the private examiner also found unfavorable ankylosis of the Veteran’s entire thoracolumbar spine, see id. at 6, this is inconsistent with the private examiner’s own findings, as well as those of the three VA examiners, that the Veteran’s lumbar spine retains a range of motion, albeit a limited one. See 38 C.F.R. § 4.71a, General Rating Formula, Note 5 (providing that for VA compensation purposes, lumbar ankylosis “is a condition in which… the entire thoracolumbar spine… is fixed in flexion or extension”) (emphasis added). Accordingly, the Board assigns little probative weight to the findings of the private examiner. The April 2019 private examiner also found reduced muscle strength. See October 2019 DBQ at 5-6. The Board has therefore considered whether an additional disability rating may be warranted under 38 C.F.R. § 4.73. However, this finding has not been reproduced in any of the other examinations of record. See March 2011 VA Examination Report at 7; see also August 2013 VA Examination Report at 4; see also November 2019 VA Examination Report at 6-7. In light of the consistent conclusions of multiple VA examiners on this point, as well as the internal inconsistency of the April 2019 private examination report discussed above, the Board likewise assigns little probative weight to the private examiner’s findings as it pertains to reduced muscle strength. The Board also notes that the Veteran has asserted flare-ups of her lumbar spine condition. See March 2011 VA Examination Report at 5. The March 2011 VA examiner did not provide an estimate as to the degree of additional functional impairment which may result from such flare-ups, stating that such an opinion would be speculative. See id. at 6. Applicable precedent of the Court of Appeals for Veterans Claims (CAVC) provides that generally, such a refusal to provide an estimate addressing the effect of flare-ups may render a VA examination inadequate. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017) (providing that “the [CAVC’s] case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans”). The Board has therefore considered whether to remand this issue for a retrospective medical opinion to address the March 2011 VA examiner’s omission. See Chotta v. Peake, 22 Vet. App. 80 (2008). However, the Board is also mindful of regulatory constraints on its ability to remand for further development, which “should not be undertaken when [the] evidence present is sufficient for this determination.” 38 C.F.R. § 3.304(c). The Board finds that remand for a retrospective medical opinion is not necessary in this case for two reasons. First, each of the subsequent VA examiners, as well as the private medical examiner, found no additional functional loss due to flare-ups. See August 2013 VA Examination Report at 16; see also October 2019 DBQ at 5; see also December 2019 VA Examination Report at 5-6. Second, MRI results and the Veteran’s own statements support the inference that the Veteran’s lumbar spine condition has become worse over time, even if it has not resulted in symptoms approximated by higher disability rating criteria. See October 2019 Medical Treatment Records (providing, in January 2019 correspondence with the Veteran, that MRI results reflect “[moderate] diffuse disc protrusion at L4-5 worsening since the previous exam”) (emphasis added); see also August 2013 VA Examination Report at 1 (noting Veteran’s assertion that “[the] condition has gotten worse”). Despite the Veteran’s worsening condition, the evidence does not show flare-ups attributable to the Veteran’s lumbar spine condition were worse in March 2011, when the VA examiner declined to estimate their additional functional impairment, than they have been in August 2013, April 2019, or November 2019, when multiple examiners estimated they produced no additional functional impairment beyond the baseline impairment of the Veteran’s lumbar spine condition. The Board notes the Veteran’s assertions that “when I have flare-ups… I can barely walk[,] [most] times it takes 3-5 days to be able to operate on my own.” See August 2013 VA Examination Report at 9; see also October 2019 DBQ at 1 (private examiner noting Veteran’s assertion that “weekly flare-ups… affect [her] ability to go up and down stairs and… carry more than 10 pounds”); see also October 2019 Correspondence (providing lay statement from the Veteran’s aunt describing observations of the Veteran’s symptoms, including “[seeing] [her] in tears because of chronic back pains”). However, the Board is also mindful that the provisions of the General Rating Formula apply “[with] or without symptoms such as pain,” and that functional loss due to pain is to be rated at the same level as functional loss caused by other factors that actually limit motion. 38 C.F.R. § 4.71a, General Rating Formula; see also Mitchell, 25 Vet. App. at 37. Because each of the examiners have found no additional measurable functional impairment due to additional factors, and because all but the March 2011 VA examiner have estimated no additional degree of functional limitation during flare-ups, the Board assigns their unanimous conclusions greater probative weight than the Veteran’s assertions. Finally, the Board notes that under the IVDS Formula, a disability rating in excess of 20 percent is not assigned unless the condition manifests with incapacitating episodes having a total duration of four to six weeks during a twelve-month period. See 38 C.F.R. § 4.71a, IVDS Formula. None of the examinations of record support the inference that the Veteran’s lumbar spine condition has manifested with episodes of such duration. See March 2011 VA Examination Report at 6; see also August 2013 VA Examination Report at 14; see also October 2019 DBQ at 8; see also December 2019 VA Examination Report at 9. The Board therefore concludes that a disability rating in excess of 20 percent for the Veteran’s lumbar spine condition is not warranted. 38 C.F.R. § 4.71a, General Rating Formula, IVDS Formula. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against the Veteran’s claim. 38 U.S.C. § 5107. 2. Entitlement to an increased disability rating for a respiratory condition. The Veteran’s respiratory condition is rated as 10 percent disabling prior to October 2012 and as 30 percent disabling thereafter under DC 6602. The applicable rating criteria provide that a disability rating of 30 percent is assigned where there is FEV-1 of 56- to 70-percent predicted, FEV-1/FVC of 56 to 70 percent, where there is daily inhalational or oral bronchodilator therapy, or where the condition requires inhalational anti-inflammatory medication. See 38 C.F.R. § 4.97, DC 6602. A disability rating of 60 percent is assigned where there is FEV-1 of 40- to 55-percent predicted, FEV-1/FVC of 40 to 55 percent, at least monthly visits to a physician for required care of exacerbations, or courses of systemic corticosteroids administered at least three times per year. Id. The Veteran underwent VA examinations on this issue in March 2011 and November 2019. The March 2011 VA examiner found FEV-1 values of 70.7 and 78.7 and FEV-1/FVC values of 74 and 77. See March 2011 VA Examination Report at 4. Additionally, the March 2011 examiner found that the Veteran used an inhaler approximately four times per week. See id. at 3. The November 2019 VA examiner found FEV-1 values of 54 and 74 and FEV-1/FVC values of 73 and 74, as well as daily inhalational bronchodilator use. See November 2019 VA Examination Report at 9-10. The Board notes that the November 2019 rating decision increasing the Veteran’s disability rating for her respiratory condition did so on the basis of October 2012 medical treatment records, which reflect daily inhalational bronchodilator use. See November 2019 Rating Decision at 2. The Board has found evidence in the Veteran’s medical treatment records that the prescribed frequency of the Veteran’s inhalational bronchodilator use may have fluctuated over time. See September 2018 Medical Treatment Records at 117 (providing December 2014 notes that the Veteran was at that time “on Albuterol 3x/week [as needed]”). However, the Veteran’s medical treatment records also support the inference that the Veteran has been prescribed daily use of an inhalational bronchodilator prior to October 2012. See October 2019 Medical Treatment Records at 328 (providing March 2011 note that the Veteran’s medications at that time included “[Albuterol]… inhale 2 puffs by mouth four times a day as needed”) (emphasis added); see also id. at 367 (providing August 2009 note of the same frequency). It is unclear to the Board why the March 2011 VA examiner’s finding concerning the frequency of the Veteran’s inhalational bronchodilator use differs from that of contemporaneous medical records. However, affording the Veteran the benefit of the doubt, the Board finds that the evidence of record reflects daily use of an inhalational bronchodilator prior to October 2012; thus, an increased 30 percent evaluation is warranted from the beginning of the rating period on appeal. At no point during the appeal period has the Veteran’s respiratory condition been manifest by FEV-1 of 40 to 55 percent predicted, FVC of 40 to 55 percent, requiring at least monthly visits to a physician for care of exacerbations, or as requiring courses of systemic corticosteroids at least three times per year. Because the evidence of record does not show symptomatology more nearly approximated by the 60 percent rating criteria, a disability rating in excess of 30 percent is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 4.97, DC 6602. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for bilateral lower extremity radiculopathies associated with the Veteran’s lumbar spine condition prior to November 2019 and in excess of 10 percent thereafter. The applicable regulations provide that neurological abnormalities attributable to a spine condition are separately rated. See 38 C.F.R. § 4.71a, General Rating Formula, note 1. The record reflects that the Veteran is service-connected for bilateral lower extremity radiculopathies associated with her lumbar spine condition from November 19, 2019. See December 2020 Rating Codesheet at 2. However, the evidence of record supports the inference that these radiculopathies may have manifested prior to this date and may have persisted throughout the rating period on appeal. See March 2001 VA Examination Report at 3 (noting that “pain in [the Veteran’s] lower back radiates to the right side more than the left, and today she feels it radiating down her right leg”). The Board notes that it is not qualified to make its own medical determinations and must rely on independent and qualified medical expertise. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Where there is insufficient competent medical evidence in the record for the Board to adjudicate a claim, it must remand that claim for further development. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the Board finds that a remand is warranted for an addendum opinion as to the Veteran’s bilateral lower extremity radiculopathy, to include an opinion as to when radicular symptoms first manifested and whether the symptoms were mild, moderate, or severe in severity. 2. Entitlement to an increased disability rating in excess of 20 percent for a cervical spine condition. The Veteran’s cervical spine condition is rated as 20 percent disabling throughout the rating period on appeal under DC 5237 and 5242. See December 2020 Rating Codesheet at 1-2. These DC are also rated under the General Rating Formula, which provides in pertinent part that a disability rating in excess of 20 percent for a cervical spine condition is not assigned unless there is favorable ankylosis of the entire cervical spine or unless forward flexion is limited to 15 degrees or less. 38 C.F.R. § 4.71a, General Rating Formula. The Veteran underwent VA examinations on this issue in March 2011, August 2013, and November 2019. The Veteran did not assert flare-ups during the March 2011 examination. See March 2011 VA Examination Report at 6. The Board notes that the August 2013 VA examiner’s report uses the same quotation to describe flare-ups of the Veteran’s cervical and lumbar spine conditions, and it is therefore unclear whether the Veteran was separately asserting flare-ups of both conditions at that time. See August 2013 VA Examination Report at 1; cf. id. at 9. However, during the November 2019 VA examination, the Veteran specifically asserted flare-ups of her cervical spine condition. See November 2019 VA Examination Report at 2. As discussed above, VA examiners are generally required to evaluate any additional functional impairment caused by flare-ups of musculoskeletal conditions, which may include making estimates based on reliable lay statements. See Sharp, 29 Vet. App. at 35. The November 2019 VA examiner opined that the Veteran’s cervical spine flare-ups did not produce any additional functional impairment. See November 2019 VA Examination Report at 3. However, this is inconsistent with the Veteran’s contemporaneous assertions. See id. at 2 (asserting that during flare-ups “I can’t turn my neck”). The examiner’s opinion does not make the basis for discounting the Veteran’s assertions clear, nor are there multiple supporting examination reports to corroborate the VA examiner’s finding on this point as there were on the issue of the Veteran’s lumbar spine condition. “[Once] the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one[.]” Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, the Board finds that a remand is warranted for a new VA examination to assess the current severity of the Veteran’s cervical spine disability. These matters are therefore REMANDED for the following actions: 1. Obtain the Veteran VA treatment records from December 2020 to present. 2. Obtain an addendum opinion from an appropriate clinician as to the Veteran’s bilateral lower extremity radiculopathy. An in-person examination is not necessary unless deemed so by the examiner. The examiner is asked to opine as to when radicular symptoms first manifested, to include consideration of a March 2001 VA examination report in which the Veteran reported pain radiating to her legs, right more than left. If the examiner finds that bilateral lower extremity radiculopathy manifested prior to November 19, 2019, the examiner must opine as to whether the radiculopathy was mild, moderate, or severe in severity. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected cervical spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. Stephanie M. Owen Acting 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.