Citation Nr: 21012291 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-01 569 DATE: March 4, 2021 ORDER Entitlement to a rating in excess of 60 percent for herniated nucleus pulposus low back, including radiculopathy (hereinafter a back disability), to also include extra-schedular consideration of the rating for the Veteran’s back disability, is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to a service-connected impairment (claimed as due to taking medication for back disability) is remanded. FINDINGS OF FACT 1. Pursuant to a Board remand during this appeal and due to the provisions of 38 C.F.R. § 3.321(b)(1), the Director of Compensation Service denied an extraschedular rating for the Veteran’s service-connected back disability. 2. For the entire period on appeal, the schedular evaluation for the service-connected back disability is found to be adequate and the Veteran’s lumbar spine disability has not manifested in unfavorable ankylosis of the thoracolumbar spine, unfavorable ankylosis of the entire spine, or incapacitating episodes requiring bedrest prescribed by a physician for a total duration of 4 weeks or greater. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for a back disability has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a; Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active service with the United States Army from May 1976 to May 1979. This matter came before the Board of Veterans’ Appeals (Board) on appeal from the January 2012, November 2014, and July 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veteran Law Judge (VLJ) in April 2018. A transcript of the hearing is associated with the claims file. In June 2018, the Board issued a decision which denied entitlement to a rating in excess of 60 percent for herniated nucleus pulposus low back, including radiculopathy. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In February 2019, the Veteran and the Secretary of the VA (collectively, as parties) filed a Joint Motion for Partial Remand (JMPR). The parties requested that the Court vacate in part the Board’s June 2018 decision and remand the matter for further consideration and instructions consistent with the JMPR. The JMPR stipulated that the Board erred by denying an increase in rating for the Veteran’s back disability claim, while remanding the issue of entitlement to total disability rating based on individual unemployability (TDIU). The Court granted the JMR in February 2019. In September 2019, the Board remanded the claims for further development including a new VA opinion. In January 2019, the Veteran was afforded a new examination for service connection of gastroesophageal reflux disease. Then in August 2020 an advisory opinion denied extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) for the Veteran’s back disability. Then in September 2020, a rating decision granted the Veteran’s claim for TDIU. After a Supplemental Statement of the Case (SSOC) in September 2020, the case was returned to the board. The Board notes that the Veteran has been granted TDIU effective November 8, 2011, which is a full grant of the requested benefit. 1. Entitlement to a rating in excess of 60 percent for a back disability to include extra-schedular consideration is denied. Increased Rating Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. According to regulations, an extraschedular disability rating may be warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular Schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular Schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available Schedular evaluations for that service-connected disability are inadequate. Second, if the Schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a Veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Back Disability Rating The Veteran contends that he is entitled to an increased evaluation, higher than 60 percent, for his service-connected lumbar spine disability. The Veteran is rated at 60 percent since October 2002, based on the Diagnostic Code (DC) 5293. Of note DC 5293 was removed from the Schedule of Ratings-Musculoskeletal System. However, the Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. DC 5293, was previously a part of the schedule of ratings, for intervertebral disc syndrome (IDS) and provided a 60 percent rating for pronounced intervertebral disc disease with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasms, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. See SOC received July 2000, Rating Decision-Narrative received January 2003. Effective September 26, 2003, the schedule for rating spine disabilities was changed to provide for the evaluation of all spine disabilities under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). IDS is now under DC 5243 and can be rated under the General Rating Formula, or alternatively rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The General Rating Formula under DCs 5235 to 5243 considers the spine with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by the residuals of injury or disease. See 38 C.F.R. § 4.71(a); DCs 5235 to 5243. For the General Rating Formula, a 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasms or guarding are severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. A 40 percent rating for the thoracolumbar spine 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 evaluation 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. For 5243, applicable to IDS, an incapacitating episode is a period of acute signs and symptoms due to IDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Note(1), under Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. A 60 percent rating, for IDS, is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months, that requires bed rest prescribed by a physician and treatment by a physician. While the Veteran contends the rating for his back disability should be increased, the Board finds that the evidence does not support a rating in excess of 60 percent. For example, in January 2018, the Veteran had another VA examination. The Veteran was diagnosed with intervertebral disc syndrome. See VA Examination received January 2018. The Veteran reported pain down both legs to his feet. He reported low back pain sitting, standing, and lying down. The Veteran did not report flare-ups. The thoracolumbar spine range of motion was zero to 30 degrees forward flexion, zero to zero degrees extension, zero to 20 degrees right lateral flexion, zero to 20 degrees left lateral flexion, zero to 15 degrees right lateral rotation, and zero to 15 degrees left lateral rotation. Id. The January 2018 examiner stated that the Veteran had pain with weight bearing and that the Veteran was unable to perform repetitive testing. See VA Examination received January 2018. The Veteran had muscle spasms resulting in abnormal gait or abnormal spinal contour. However, the Veteran had normal strength and no muscle atrophy. The Veteran had decrease sensation in the left lower extremity and hypoactive reflexes. Id. The examiner reported that the Veteran had mild radiculopathy in both lower extremities, but no ankylosis of the spine. As for assistive devices, the Veteran reported using a back brace and a cane. Id. Imaging of the Veteran’s spine from August 2017, compared with imaging from April 2016 documented no significant changes. However, the Veteran continued to have L3 to L4, L4 to L5, L5 to S1 disc and facet degenerative changes without significant evidence of central spinal canal narrowing. Id. Previous imaging noted mild central canal stenosis and moderate sized disc bulging possibly encroaching on the nerve root. Id. After a thorough review of the evidence of record in this matter, the Board finds that an evaluation in excess of 60 percent disabling is not warranted based on the schedular rating criteria. Even considering all the evidence in the light favorable to the Veteran, his lumbar spine disability did not manifest in unfavorable ankylosis of the entire spine. The Veteran was limited to forward flexion of the thoracolumbar spine of 30 degrees or less, which is consistent with a rating of 40 percent under the currently appliable General Rating Formula. See 38 C.F.R. § 4.71a. Even considering a rating for bilateral mild sciatic nerve disability, the Veteran would not exceed 60 percent. As the current rating under DC 5293 considers the symptoms of the back disability due to IDS and the sciatic nerve issues the current rating remains the highest rated based on the Schedule. DC 5293 considers symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasms, absent ankle jerk, or other neurological findings appropriate to the site of diseased disc, with little intermittent relief. See SOC received July 2000. Therefore, the Board finds that the current rating at 60 percent under DC 5293 is the highest rating applicable and that an additional rating for the bilateral sciatic nerve disability is not warranted, as it is already accounted for in the current rating. Further, the Veteran does not qualify for a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes or based on any other diagnostic codes not already discussed. The Board also considered whether an extra-schedular rating of the Veteran’s back disability would apply. However, the Board finds that an extra-schedular rating is not warranted. In an August 2020 Advisory Opinion, the Director of Compensation Service denied extra schedular rating for the Veteran’s back disability. The director noted that the Veteran declined to attend at appointment for a new VA back examination in November 2019. The director stated that the January 2018 examination shows only a 40 percent evaluation based on the lumbar spine issues itself. Radiculopathy could also be granted at 10 percent each side under the new criteria for rating the spine. This would continue the Veteran’s current 60 percent evaluation, as discussed above. The director found that the evidence did not show an unusual or exceptional disability pattern in this case, that would make application of the regular rating criteria impractical. The evidentiary record does not show that the symptomatology consistently associated with the service-connected back condition supports an increased evaluation greater than 60 percent on a schedular or extra-schedular basis. The Board agrees with the Director of Compensation Service that the overall evidence does not support the contention that an exceptional or unusual disability picture exists as to the Veteran’s back disability. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran’s service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here the schedular rating, discussed above, reasonably contemplates the severity of the Veteran’s back disability. The Board further notes that the Veteran’s records do not show frequent hospitalizations due to his service-connected disability or marked interference with employment. As for any interferences with unemployment that the Veteran experiences, it appears that these are well accounted for by the award of TDIU for the relevant period. As a preponderance of the probative, credible evidence of record weighs against a finding of a rating in excess of 60 percent for the Veteran’s back disability, the benefit of the doubt doctrine does not apply, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for GERD is remanded. Although further delay is regrettable, a remand is necessary for an adequate VA opinion. The Veteran contends that his GERD is secondary to his service-connected back disability. He specifically alleges that his medication for a back disability worsen or cause his GERD. In January 2020 a new VA opinion for secondary service connection of GERD was obtained. See C&P Exam received January 2020. The examiner found that the GERD was less likely than not proximately due to or the result of the Veteran’s service-connected condition. However, the examiner stated for the rationale that treatment records of the lumbar spine are not available for review. The examiner opined that the Veteran’s GERD was not at least as likely as not aggravated beyond its natural progression. The rationale was essentially that NSAID medications do not cause GERD, and that none of the Veteran’s other medications cause GERD. Id. The January 2020 opinion is generally inadequate, as the examiner noted that back records were not reviewed or available and since the examiner did not clearly address aggravation. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that when the VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (holding that an opinion for secondary service connection is inadequate when it does not address or rule out the possibility that the service-connected impairment aggravated to some degree the claimant’s non service-connected impairment). Additionally, the May 2019 VA examination stated that NSAID medications could cause gastropathy and GERD. See C&P Exam received May 2019. Since the other available VA opinion appears to be in direct conflict with the January 2020 opinion, the Board finds that another VA opinion is required to address this question of fact. The matters are REMANDED for the following action: 1. Request an addendum VA medical opinion by a different VA examiner then provided the last two opinions, who has the appropriate training and expertise to determine the nature and etiology of the Veteran’s GERD. Following review of the claims file, the examiner should answer the following questions: (a.) Is it at least as likely as not that the Veteran’s GERD began in or is otherwise caused by his active service? (b.) In the alternative, is it at least as likely as not that the Veteran’s GERD was either: 1. caused by the Veteran’s various medications (including but not limited to: psyllium fiber, ibuprofen, Naprosyn, Aleve, Advil, Motrin, Nuprin, Anaprox, and any NSAID) for service-connected back disability. OR; 2. aggravated by (i.e., worsened beyond the normal progression of the disease) the Veteran’s various medications (including but not limited to: psyllium fiber, ibuprofen, Naprosyn, Aleve, Advil, Motrin, Nuprin, Anaprox, and any NSAID) for service-connected back disability? In addressing whether the Veteran’s medications for his back disability were a source of aggravation of the Veteran’s GERD, the examiner must attempt to establish a baseline level of severity of the GERD prior to aggravation by the service-connected disability. Please consider and discuss that the January 2020 VA examiner stated that NSAID medications did not cause GERD, and the May 2019 VA examiner noted in his rationale that certain medications for back pain such as NSAIDS could cause gastropathy and GERD. Please also consider and discuss that the Veteran’s back disability treatment has reported that the Veteran was prescribed NSAID medications at times. See BVA Decision dated in September 2019. Please note, causation and aggravation are separate concepts and must be addressed independently. (Continued on the next page)   2. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. After completing all indicated development, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is returned to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.