Citation Nr: 21014218 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-48 070 DATE: March 11, 2021 ORDER Entitlement to a rating greater than 10 percent for a low back disability prior to December 27, 2016 for a low back disability is denied. Entitlement to an increased disability rating of 40 percent for a low back disability as of December 27, 2016 but not earlier, is granted. REMANDED Entitlement to a rating greater than 40 percent for a low back disability is remanded. Entitlement to service connection for facial basal cancer (perineural invasion of forehead) is remanded. FINDINGS OF FACT 1. Prior to December 27, 2016, the Veteran’s low back disability was manifested by forward flexion of the thoracolumbar spine primarily greater than 60 degrees, with no additional limitation of motion after repetition; muscle spasm or guarding resulting in abnormal contour or gait were not shown; ankylosis or intervertebral disc syndrome (IVDS) was not shown. 2. From December 27, 2016, the Veteran’s low back disability has more nearly approximated forward flexion of the thoracolumbar spine of 30 degrees. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for a service connected low back disability prior to December 27, 2016, are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for a disability rating of 40 percent for the low back disability as of December 27, 2016 but not earlier, are met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the U.S. Navy from March 1983 to February 1987. In September 2019, the Veteran presented testimony before the undersigned Veterans’ Law Judge at a videoconference Board hearing; a transcript of that hearing has been reviewed and associated with the claims file. This appeal was previously before the Board of Veterans’ Appeals (Board) in November 2019, where the Board remanded the issues for additional development including scheduling the Veteran for appropriate VA examinations. The matter has returned to the Board for further appellate review. During the pendency of this appeal, in an October 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the Veteran’s low back disability rating from 10 percent to 40 percent effective October 9, 2020. Similarly, the AOJ granted service connection for right lower extremity femoral nerve and right lower extremity sciatic nerve as secondary to the low back disability. With respect to the increased rating claim for the low back disability, the Board notes that the rating did not constitute a full grant of the benefits sought. Accordingly, the Veteran’s increased rating appeal for a low back disability, remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). 1. Entitlement to an increased disability rating of 40 percent for a low back disability effective from December 27, 2016 Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). It is worth noting that during the pendency of this appeal, VA published a final rule amending its regulations on musculoskeletal disabilities, effective February 7, 2021.The amendment, in pertinent part, amended General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) for Diagnostic Codes 5242, 5243, 5244. See Final Rule AP88. These new regulations apply to all applications for benefits received by VA or that are pending before the AOJ on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and the more veteran-favorable criteria will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective date of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to February 7, 2021, disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher rating. Prior to February 7, 2021, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Under the new regulation, IVDS is rated under DC 5243 only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise, DC 5242 will be assigned for all other disc diagnoses. VA will also evaluate IVDS (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25. Under the General Rating Formula (which remains unchanged under the new regulation), a 20 percent disability rating is assigned where the evidence shows forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine 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 disability rating is appropriate where there is evidence of forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is warranted where the disability has resulted in unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating contemplates unfavorable ankylosis of the entire spine. The normal findings for range of motion of the lumbar spine are flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. 38 C.F.R. § 4.71a, Plate V. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). In this case, the Veteran contends that he is entitled to a disability rating greater than 10 percent prior to October 9, 2020 considering his functional limitations (inability to engage in prolonged standing, walking and bending over to put on shoes). For the reasons discussed below, the Board finds that the assignment of an increased disability rating of 40 percent is warranted as of December 27, 2016. Reviewing the evidence most relevant to the rating period on appeal, a March 2012 private treatment note by Dr. M. B., indicates that the Veteran has documented pain radiating down his right leg and into his right toes 4 and 5. She noted that the Veteran is being treated with heat, ice pain medications as well as therapy and that she has tried therapeutics as well as anti-inflammatories. The physician noted that the Veteran will need an MRI to evaluate the severity of the damage in his spine and what options are available to fix it. See March 2012 Third Party Correspondence. The Veteran was afforded a VA back examination in February 2012. The Veteran complained of recurrent pain daily that is dull and worse in the morning with pain level of 6-7/10. The Veteran denied any radiation into the lower extremities. He related that he felt more pain during prolonged sitting, standing and walking and is limited to lifting less than 5 pounds. The Veteran was diagnosed with lumbar strain. The examiner noted that flare-ups did not impact function of the thoracolumbar spine. On examination, range of motion for flexion was to 90 degrees and extension to 25 degrees. The examiner stated that pain was noted on examination and but did not cause functional loss. There was also evidence of localized tenderness or pain to palpation. After three repetitions of range of motion testing, flexion was to 90 degrees, extension to 20 degrees. The Veteran did not exhibit guarding and localized tenderness resulting in abnormal gait or abnormal spinal contour. There was no muscle atrophy. Reflexes and sensory exam were normal. Straight leg raising test was negative. The examiner stated there were no signs or symptoms of radiculopathy, and that there was no ankylosis or IVDS. In terms of occupational limitations, the examiner stated that the lower back condition would not impact the Veteran's ability to work. See February 2012 VA Examination. In a December 2016 medical report, the Veteran reported of worsening neck and back pain. The physician noted that both the Veteran’s neck and back pain seem to be progressively worsening. See December 2016 Medical Treatment Record - Non-Government Facility. Following the Board’s November 2019 remand directives, the Veteran was afforded another VA back examination in October 2020. He reported intermittent back pain radiating to down the right lower leg down to right 5th toe precipitated and aggravated by prolonged standing, walking, prolonged sitting and bending over when putting on shoes. The pain is temporarily relieved by suboxone 3x a day and use of tens unit and that he uses one prong cane for support, issued by the VA. The Veteran reported flare-ups with prolonged standing, walking, prolonged sitting and bending over when putting on shoes. The Veteran’s current diagnosis was noted as chronic pars defect. lumbar ddd/spondylosis. Upon examination, Initial range of motion testing revealed forward flexion to 40 degrees; extension to 15 degrees; right lateral flexion to 15 degrees; left lateral flexion to 20 degrees; right lateral rotation to 25 degrees; and left lateral rotation to 25 degrees. There was evidence of pain in weight and non-weight bearing. The examiner noted that it is not medically feasible to test the passive range of motion without risk of injury or perceived injury. After three repetitive testing, range of motion for forward flexion was to 30 degrees, and extension was to 10 degrees. The examiner noted that pain, weakness, lack of endurance significantly limits functional ability with repeated use over a period of time. The examiner noted he was unable to describe in terms of range of motion; but that after examination of the Veteran, obtaining his subjective history and current level of functioning, he would estimate the Veteran as likely as not loses an additional motion to a mild degree beyond what is reflected in the current objective ranges of motion. There was evidence of radiculopathy and evidence of guarding and muscle spasm resulting in abnormal gait or abnormal spinal contour. There was no evidence of muscle atrophy and ankylosis of the spine. Intervertebral disc syndrome (IVDS) was noted with no episodes of bed rest during the past 12 months. The examiner noted that the reported intermittent back pain radiating to down the right lower leg down to right 5th toe precipitated and aggravated by prolonged standing, walking, prolonged sitting and bending over when putting on shoes will impact Veteran’s ability to work. See October 2020 C&P Examination. The October 2020 examiner further remarked that the “Veteran's service-connected disability has progressed since his previous C&P exam in 2015 (date erroneously stated), shown by consult with neurologist Dr. R. of Emerald Coast for neuro disorders dated December 2016 stating "both neck and back pain seem to be progressively worsening" and by lumbar MRI dated 01/24/2020 showing "mildly progressive degenerative change, chronic left-sided l5 pars defect, multilevel mild canal narrowing and foramen encroachment most pronounced to the right l5-s1. The examiner concluded that the current diagnosis is a progression of service-connected disability, being, that pars defect can become separated during repeated stress and strain”. See October 2020 C&P Examination. Based upon these findings and the lay evidence of record, the Board finds that the weight of the evidence favors the assignment of a disability rating of 40 percent for the low back disability as of December 27, 2016. As noted above, the October 2020 VA examiner noted that the Veteran’s low back disability progressed after his previous VA examination as shown in a December 2016 medical consult note by Dr. R. The October 2020 VA examiner further reiterated that the findings of Dr. R in the December 2016 neuro consult, are verified by the January 2020 MRI. Notably, in order to be eligible for a 40 percent disability rating, the evidence must demonstrate forward flexion of the thoracolumbar spine limited to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome of at least 4 weeks in duration. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Here, the October 2020 examination indicated a forward flexion limited to 30 degrees after three repetitive testing; and the October VA examiner has alluded that his finding is in congruent with the findings of the January 2020 MRI and the December 2016 medical notations of Dr. R. Based on the cumulative evidence above, the Board finds that a disability rating greater than 10 percent is not warranted prior to December 27, 2016. See 38 C.F.R. § 4.71, DC 5237. As noted previously, a 20 percent evaluation requires 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 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. The evidence indicates the Veteran's forward flexion range of motion was 90 degrees and his combined range of motion was greater than 120 degrees during this appeal period, even when taking into consideration any additional functional impairment caused by factors such as pain, pain on movement and less movement than normal. The February 2012 VA examiner noted the Veteran's reports of pain during prolonged sitting, standing and walking. However, even considering these complaints, the Veteran did not exhibit any additional loss of motion (flexion) during repetitive range of motion tests. Thus, the described pain and functional loss are sufficiently contemplated in the currently assigned 10 percent rating for the period prior to December 27, 2016. In addition, there is no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, and no ankylosis was found on any clinical examination prior to December 27, 2016. IVDS with incapacitating episodes having a total duration of at least 2 weeks is also not shown. Based on the above, the Board finds that entitlement to a disability rating greater than 10 percent prior to December 27, 2016, is not warranted. Accordingly, an increased disability rating of 40 percent is granted as of December 27, 2016, but not earlier for the Veteran’s low back disability. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.   REASONS FOR REMAND 1. Entitlement to a rating greater than 40 percent for a low back disability from October 9, 2020 is remanded. While the Board sincerely regrets the delay, a remand is required before the Board can make a determination on the merits of the remaining outstanding increased rating claims on appeal. The Veteran asserts that his low back disability warrants a rating greater than 40 percent from October 9, 2020. In order to be eligible for the next higher 50 percent disability rating, the evidence must demonstrate unfavorable ankylosis of the entire thoracolumbar spine, or, to be eligible for the next higher 60 percent rating for intervertebral disc syndrome, incapacitating episodes of at least 6 weeks in duration. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. As noted above, during the pendency of this appeal, the regulations pertaining to musculoskeletal disabilities were amended, effective February 7, 2021. The VA, in pertinent part, amended General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) for Diagnostic Codes 5242, 5243, 5244. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The Secretary of VA has determined that “claims pending prior to [February 7, 2021] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.” As the Veteran's claim was pending prior to February 7, 2021, a remand is necessary for an examination addressing the new criteria. 2. Entitlement to service connection for facial basal cancer (perineural invasion of forehead) is remanded. While the Board sincerely regrets the delay, a remand is required before the Board can make a determination on the merits of the service connection on appeal. The Veteran contends that his facial basal cancer is related to service, to include as due to exposure to radiation as a helicopter mechanic. The Veteran was afforded a VA examination in October 2020. The examiner stated that he had reviewed the relevant evidence and that in his opinion, the veteran's basal cell carcinoma is less likely than not related to service including exposure to ionizing radiation from electronics while working on helicopters. The examiner’s rationale included the following: “Though medical literatures mentioned possible effects of radiofrequencies on human health, it is not conclusive and needs further studies…Many epidemiological studies have addressed possible links between exposure to RF and excess risk of cancer. However, because of differences in the design and execution of these studies, their results are difficult to interpret. A number of national and international peer review groups have concluded that there is no clear evidence of links between RF exposure and excess risk of cancer. WHO has also concluded that there is no convincing scientific evidence that exposure to RF shortens the life span of humans, or that RF is an inducer or promoter of cancer. However, further studies are necessary”. The examiner further opined that exposure [to radiation/sun] in service, pales in comparison to exposure post service as the Veteran has lived 14 years outside of service versus five years in service. See October 2020 C&P Examination. The Board finds this examination inadequate. The examiner stated that the Veteran's facial basal cancer was less likely than not related to radiation exposure but provided generalized, conflicting and inconclusive medical literature on the causes of basal cancer. In addition, the examiner did not specifically address why he thinks that the Veteran's cancer is unrelated to his military occupation specialty (MOS). Further, while the examiner stated that the Veteran’s out of service sun exposure was more than his in service exposure, he did not detail whether the Veteran's out of service sun exposure was the sole or primary contributor to the facial basal cancer. In light of the foregoing inadequacies, an addendum medical opinion is warranted.   The matters are REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding VA or private treatment records pertinent to the low back and facial basal cancer claims. 2. After completing step 1 above, schedule the Veteran for an appropriate VA examination to assess the current severity of his low back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's spine disability under the new rating criteria. Specifically, the examiner must comply with the ruling in Correia. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. 3. After completing step 1 above, forward the Veteran's claims file to a qualified medical professional to obtain an addendum opinion as to the nature and etiology of the Veteran's facial basal cancer. If the clinician determines that an examination is necessary, one should be scheduled. After reviewing the record, the VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's facial basal cancer is causally related to his active duty service or any incident therein, to include sun exposure and exposure to radiation. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.