Citation Nr: 21013104 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 11-26 318A DATE: March 8, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for degenerative joint and disc disease of the lumbar with chronic lumbar strain prior to August 19, 2019, is denied. Entitlement to an increased rating in excess of 40 percent for degenerative joint and disc disease of the lumbar with chronic lumbar strain from August 19, 2019, is denied. REMANDED Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to special monthly compensation based on the need for aid and attendance is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 26, 2014, is remanded. Entitlement to service connection for hypertension, claimed as secondary to service-connected PTSD, is remanded. Entitlement to service connection for a right foot disability, claimed as secondary to service-connected left ankle disability, is remanded. Entitlement to service connection for diabetes mellitus, claimed as secondary to service-connected PTSD, is remanded. Entitlement to service connection for asthma is remanded. FINDINGS OF FACT 1. Prior to August 19, 2019, the Veteran’s degenerative joint and disc disease of the lumbar with chronic lumbar strain was not manifested by thoracolumbar spine for flexion of 60 degrees or less; or combined range of motion of the thoracolumbar spine of 120 degrees or less; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis; ankylosis; or intervertebral disc syndrome (IVDS). 2. From August 19, 2019, the Veteran’s degenerative joint and disc disease of the lumbar with chronic lumbar strain has not been manifested by unfavorable ankylosis in the entire spine, or the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to August 19, 2019, for degenerative joint and disc disease of the lumbar with chronic lumbar strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. 2. The criteria for an increased rating in excess of 40 percent from August 19, 2019, for degenerative joint and disc disease of the lumbar with chronic lumbar strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1989 to August 1992. This appeal to the Board of Veterans' Appeals (Board) arose from the December 2008, November 2010, April 2015, and the June 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The issues were most recently remanded by the Board in June 2018 for further development. With respect to the Veteran’s claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 1. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint and disc disease of the lumbar with chronic lumbar strain prior to August 19, 2019 2. Entitlement to an increased rating in excess of 40 percent for degenerative joint and disc disease of the lumbar with chronic lumbar strain from August 19, 2019 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 applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 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. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran’s condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40 and 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. However, pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Degenerative or traumatic arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003. The Veteran’s service-connected degenerative joint and disc disease of the lumbar with chronic lumbar strain has been rated as 10 percent disabling, prior to August 19, 2019 and 40 percent thereafter, under Diagnostic Code 5242-5237. 38 C.F.R. § 4.71a. The diagnostic code criteria pertinent to spinal disabilities in general are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Under these relevant provisions, 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 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 is rated at 10 percent. A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine greater not greater than 120 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 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. In addition, intervertebral disc syndrome (IVDS) may also be evaluated based on incapacitating episodes, depending on which method results in the higher evaluation when all disabilities are combined under § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes allows a rating of 10 percent where there is IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A rating of 20 percent is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted when there are incapacitating episodes having a total of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. In the July 2017 rating decision, the Veteran was granted service connection for disease of the lumbar with chronic lumbar strain at 10 percent disability, effective July 31, 2008. The Veteran contends that a rating in excess of 10 percent should be awarded from this time period. The Veteran was afforded a VA examination in October 2010. The examination reflected the Veteran’s lumbar spine had a forward flexion from 0 to 70 degrees, extension from 0 to 28 degrees, right lateral flexion from 0 to 27 degrees, left lateral flexion from 0 to 26 degrees, right lateral rotation from 0 to 24 degrees and left lateral rotation from 0 to 20 degrees. The examination further noted the Veteran’s back with no ankylosis, spinal contour preserved, and no guarding of movement. The Veteran was afforded another VA examination on August 19, 2019. The examination reflected the Veteran’s lumbar spine had a forward flexion from 0 to 20 degrees, extension from 0 to 5 degrees, bilateral lateral flexion from 0 to 25 degrees, bilateral lateral rotation from 0 to 25 degrees. The examiner reported the same range of motion findings with regards to functional loss experienced during flareups. Pain was identified as a factor that causes functional loss. The examination further noted the Veteran’s back with no ankylosis and no IVDS. Based on the above, the Board finds that an initial rating in excess of 10 percent prior to August 19, 2019, for disease of the lumbar with chronic lumbar strain is not warranted. A disability rating in excess of 10 percent prior to August 19, 2019, is not warranted here as the competent credible evidence does not indicate that the Veteran had thoracolumbar spine 60 degrees or less; or combined range of motion of the thoracolumbar spine 120 degrees or less; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis; ankylosis; or IVDS. The Board also finds that an increased rating in excess of 40 percent from August 19, 2019 for disease of the lumbar with chronic lumbar strain is not warranted. A disability rating in excess of 40 percent is not warranted here as the competent credible evidence does not indicate that the Veteran has unfavorable ankylosis in the entire spine or entire thoracolumbar spine. Ankylosis is the immobility and consolidation of a joint due to disease, injury, surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing SAUNDERS ENCYCLOPEDIA AND DICTIONARY OF MEDICINE, Nursing, and Allied Health at 68 (4th ed. 1987)). Here, ankylosis has not been diagnosed or identified by x-ray evidence of record. Therefore, as the Veteran has also been able to extend, flex, and flex and rotate laterally, the Board must find that ankylosis is not shown. Furthermore, the claims file does not indicate that the Veteran experienced an incapacitating episode for a total duration of at least four weeks during the last 12 months. In making this determination, the Board considered any functional loss caused due to flare-ups of pain, weakness, fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237; DeLuca, 8 Vet. App. 202. The evidence does not show that the spine disability more nearly approximates the criteria for higher ratings for any period on appeal. To the extent that the Veteran has reported experiencing flare-ups and functional impairment, this impairment is contemplated by the currently assigned 10 percent and 40 percent ratings. The evidence does not show that his functional loss more closely approximates the criteria for higher ratings. As such, higher ratings based on pain and functional loss is not warranted. See Mitchell, 25 Vet. App. 32; Deluca, 8 Vet. App. at 206-07. As the preponderance of the evidence is against the claim for increased ratings, there is no doubt to be resolved, and rating greater than 10 percent prior to August 19, 2019, and higher than 40 percent since this date for the Veteran’s back disability is not warranted. 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension, claimed as secondary to service-connected PTSD is remanded. 2. Entitlement to service connection for diabetes mellitus, claimed as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. 3. Entitlement to service connection for asthma is remanded. As mentioned, prior, the issues were remanded for further development. Specifically, the Board instructed the RO to obtain adequate medical opinions regarding these issues on appeal. Unfortunately, the Board finds the August 2019 VA medical opinions regarding the above issues to be deficient. The VA examiner seemed to base the unfavorable conclusions on the mere absence of in-service treatment records for the claimed conditions. In so doing, the examiner failed to discuss relevant medical treatment records, medical literature (with regards to asbestos exposure), and the Veteran's credible lay statements. An opinion based on the absence of treatment records without consideration of a Veteran's competent reports is inadequate. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). 4. Entitlement to service connection for a right foot disability, claimed as secondary to service-connected left ankle disability is remanded The Veteran was provided a VA medical opinion in August 2019. The examiner concluded that the Veteran’s right foot pes planus claimed as a right foot condition preexisted his military service and has not been aggravated beyond its natural progression. A Veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. “Clear and unmistakable evidence” means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Where a preservice disability underwent an increase in severity in service, there is a presumption of aggravation; clear and unmistakable evidence is required to rebut the presumption of aggravation. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The Court has held that temporary or intermittent flare-ups of a preexisting condition during service are not sufficient to be considered “aggravation in service” unless the underlying condition, as opposed to its symptoms, has worsened. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Service Treatment Records (STRs) reflect that upon entrance into active service, the Veteran had pes planus bilaterally. (See February 1989 Report of Medical Examination). While the claims folder reflects that the Veteran’s current right foot pes planus preexisted service, the August 2019 medical opinion fails to adequately discuss whether the Veteran’s active service aggravated the Veteran’s preexisting right foot condition beyond its natural progression. Further, the opinion fails to adequately discuss whether the Veteran’s right foot condition has been aggravated by his current service-connected disabilities. Any medical opinion provided must be accompanied with an adequate rationale in which the Board may consider. Unfortunately, without an adequate opinion, the Board must remand the claim to obtain such an opinion, 5. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded In the June 2018 remand the Board found that relevant treatment records needed to be obtained prior to adjudicating the issue on appeal. A review of the claims folder reflects that the Veteran has yet to provide VA the necessary authorization to obtain possible treatment records located VA Vet Center in Greenville, North Carolina. As the Veteran and his representative has been responsive throughout the appeals period, the Board finds that another effort by VA to obtain the necessary treatment records would not be futile. 6. Entitlement to special monthly compensation based on the need for aid and attendance is remanded. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 26, 2014 is remanded The Board has considered the question of whether the Veteran would be prejudiced by considering the appeals for SMC and TDIU while remanding the other issues on appeal. Specifically, the Board questions whether the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the outcome of the claims being remanded could have a significant impact on the Veteran's appeal for entitlement to TDIU and SMC, the Board finds these matters inextricably intertwined. The Board also notes that an undecided issue "inextricably intertwined" with an issue certified for appeal must be adjudicated prior to appellate review. The pre-decisional duty to assist error for the service connection issues are thus a pre-decisional error for the TDIU and SMC issues. Thus, the issues for entitlement to TDIU and SMC must be remanded. The matters are REMANDED for the following action: 1. The AOJ must contact the VA Vet Center in Greenville, North Carolina, for any group therapy or treatment records for the Veteran. The request should specifically indicate that VA is seeking the actual records and not a summary of the Veteran’s treatment or symptoms. All attempts to obtain this data, and any responses received, should be documented in the claims folder. (If the Veteran's authorization to release such records to VA is necessary, the Veteran should be provided with the necessary authorization forms). 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his asthma. The claims folder, to include a copy of this remand, must be provided to and reviewed by the examiner in conjunction with the examination. All necessary testing should be undertaken. The examiner should first identify any respiratory/ pulmonary disability. Then, as to each diagnosed respiratory/pulmonary disability, to include the Veteran's diagnosed asthma, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in or is otherwise related to the Veteran’s active duty service, to include the Veteran’s conceded in-service asbestos exposure. A complete rationale should accompany any opinion provided. Any rationale provided must discuss medical literature regarding asbestos exposure and asthma. 3. The AOJ should arrange for a VA clinician with the appropriate expertise to review the Veteran’s claims folder and provide an opinion as to whether the Veteran's PTSD has caused or made chronically worse the Veteran’s hypertension. (Only if the reviewer indicates an opinion cannot be proffered without examination of the Veteran should the Veteran be scheduled for a VA examination.) The reviewer must provide an opinion as to causation and aggravation, as well as a rationale for any opinion expressed. The reviewer is also reminded that merely stating that it is his opinion that the Veteran’s hypertension was not caused or aggravated by his PTSD is not sufficient. An explanation is required that takes into account the record and pertinent medical principles and the examiner's rationale should include citation to pertinent evidence and/or medical principles relied upon to form that opinion. The reviewer’s opinion should include a discussion of the evidence outlined in the June 2018 Board remand, concerning a relationship between PTSD and hypertension, to include medical reasons for any disagreement with this evidence. If an opinion cannot be made without resort to speculation, the reviewer must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. Any opinion based merely on the lack of in-service treatment is inadequate. 4. The AOJ should arrange for a VA clinician with the appropriate expertise to review the Veteran’s claims folder and provide an opinion as to whether the Veteran's PTSD has caused or made chronically worse the Veteran's diabetes mellitus. (Only if the reviewer indicates an opinion cannot be proffered without examination of the Veteran should the Veteran be scheduled for a VA examination.) The reviewer must provide an opinion as to causation and aggravation, as well as a rationale for any opinion expressed. The reviewer is also reminded that merely stating that it is his opinion that the Veteran’s diabetes mellitus was not caused or aggravated by his PTSD is not sufficient. An explanation is required that takes into account the record and pertinent medical principles and the examiner’s rationale should include citation to pertinent evidence and/or medical principles relied upon to form that opinion. The reviewer’s opinion should include a discussion of the evidence outlined above concerning a relationship between PTSD and diabetes mellitus, to include medical reasons for any disagreement with this evidence. If an opinion cannot be made without resort to speculation, the reviewer must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. Any opinion based merely on the lack of in-service treatment is inadequate. 5. Schedule the Veteran for a VA examination with an appropriate clinician, to determine the nature and etiology of any right foot disability. The claims file should be made available to the VA examiner. The VA examiner should: Identify any foot disability present at any time since entrance, even if such disability resolved during the pendency of the appeal. Opine whether it is clear and unmistakable (obvious, manifest, and undebatable) that any right foot disability preexisted active service. If so, opine whether it is clear and unmistakable (obvious, manifest, and undebatable) that any preexisting back disability WAS NOT aggravated (i.e., permanently worsened) during the Veteran’s active service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. Next, identify the likely etiology for each right foot disability diagnosed. If it is not clear and unmistakable that any diagnosed right foot disability preexisted service and was not aggravated by service, opine whether it is at least as likely as not (a probability of 50 percent or greater) that any currently diagnosed disability is related to the Veteran’s active duty service. (Continued on the next page) 6. After completing the above, and any other development deemed necessary, readjudicate the issues remaining on appeal based on the entirety of the evidence. Specifically, with regard to the issue of entitlement to TDIU prior to March 26, 2014, the AOJ should consider this matter on both scheduler and extraschedular bases, dependent upon the outcome of any other claims on appeal that may impact whether and when the Veteran meets the threshold percentage requirements for an award of TDIU on a scheduler basis. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brandon A. Williams, 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.