Citation Nr: 21015793 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-45 417 DATE: March 18, 2021 ORDER Entitlement to service connection for a back disability is granted. Entitlement to an initial 10 percent disability rating for cervical spondylosis with right upper extremity paresthesias is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent for cervical spondylosis with right upper extremity paresthesias is remanded. Entitlement to a compensable disability rating for residuals of status post excision right axillary hydradenitis suppurative of the right arm is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the probative evidence of record demonstrates his back disability began during his active service. 2. The probative evidence of record demonstrates that the Veteran’s cervical spondylosis with right upper extremity paresthesias, at worst, has been productive of pain, x-ray findings of arthritis and limitation of flexion and extension to 45 degrees or greater. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial 10 percent disability rating for cervical spondylosis with right upper extremity paresthesias have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5003, 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1984 to October 1987. The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge of the Board of Veterans’ Appeals (Board) in September 2020. A transcript of that hearing has been associated with the claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for a back disability The Board concludes that the Veteran has a current diagnosis of a back disability, including degenerative changes in the lumbar spine, that began during his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The probative medical evidence or record reflects that the Veteran has a current diagnosis of chronic low back pain and degenerative changes of the lumbar spine. See Department of Veterans Affairs (VA) medical records from January 2016 to December 2016 and March 2016 VA x-ray of the lumbar spine. Service treatment records (STRs) reflect a January 1985 X-ray report’s findings of very minimal osteoarthritic changes in the mid and lower dorsal spine. Thoracic facet dysfunction was diagnosed in June 1987. In a June 1991 Report of Medical History from the Veteran’s Reserves service, the Veteran reported a history of recurrent back injury and the service medical office noted a mild injury to the back. The Veteran testified at his September 2020 Board hearing that he injured his back while carrying a heavy rucksack in service and had back pain/problems since his active service. The Veteran is competent to report his back pain/problems in service and the continued symptoms since his active service, and these reports are credible as they are consistent with the overall evidence of record. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See Baldwin v. West, 13 Vet. App. 1 (1999). Accordingly, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current back disability, diagnosed as degenerative changes in the lumbar spine, was incurred during active service. Therefore, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different “staged” ratings may be warranted for different time periods. Where the question for consideration is the propriety of the initial evaluation assigned after the granting of service connection, separate ratings may also be assigned for separate periods of time based on facts found, i.e. “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2019); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Mitchell, 25 Vet. App. 32. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See also Spencer v. West, 13 Vet. App. 376, 382 (2000) and Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 2. Entitlement to an initial 10 percent disability rating for cervical spondylosis with right upper extremity paresthesias The Veteran’s degenerative arthritis of the cervical spine is rated under 38 C.F.R. § 4.71a, DC 5242. Degenerative arthritis (osteoarthritis or hypertrophic) established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensably disabling under the appropriate DCs, 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 DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. In the absence of limitation of motion, a 10 percent rating is warranted where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. In Notes (1) and (2) in DC 5003, it is indicated these 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, DC 5003. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (in other words under DCs 5235 to 5242, unless evaluated instead under DC 5243, the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of 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 residuals of injury or disease: A 10 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate DC. 38 C.F.R. § 4.71a, DCs 5235-5243. Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also 38 C.F.R. § 4.71a, Plate V. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4) provides that the rater is to round each range of motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Under DC 5243, intervertebral disc syndrome (IVDS) or disc disease may be rated under the General Rating Formula for Diseases and Injuries of the Spine, which includes combining separate evaluations of the chronic orthopedic and neurologic manifestations, or under the Formula for Rating IVDS Based on Incapacitating Episodes, which are rated on the total duration of incapacitating episodes over the past 12 months, whichever results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the Formula for Rating IVDS Based on Incapacitating Episodes, if there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent rating is warranted. If there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is warranted. If there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is warranted. 38 C.F.R. § 4.71a. Note (1) in DC 5243 defines an incapacitating episode as a period of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician. Supplementary information in the published final regulations states that treatment by a physician would not require a visit to a physician's office or hospital but would include telephone consultation with a physician. If there are no records of the need for bed rest and treatment, by regulation, there are no incapacitating episodes. Id. The probative evidence of record, including VA outpatient treatment records and a December 2016 VA examination, demonstrates that, the Veteran’s cervical spondylosis with right upper extremity paresthesias, at worst, has been productive of pain, x-ray findings of arthritis and limitation of flexion and extension to 45 degrees or greater pain. This evidence also demonstrates there have been no findings of limitation of motion, additional limitation on repetitive motion, functional loss or impairment, muscle spasm, guarding, incapacitating episodes or ankylosis, favorable or unfavorable, of the cervical spine, thoracolumbar spine or entire spine. Therefore, considering the noncompensable limitation of motion and x-ray findings of arthritis, the cervical spine disability more nearly approximates the criteria for a 10 percent disability rating throughout the duration of the appeal, under DC 5003. 38 C.F.R. § 4.71a. In light of the fact that the issue of an initial disability rating in excess of 10 percent for cervical spondylosis with right upper extremity paresthesias is being remanded for additional development, the Board will not address entitlement to a rating in excess of 10 percent for this disability or whether a separate rating is warranted for any other residuals in this decision as potential favorable information may arise from this additional development. Accordingly, the Veteran’s cervical spine disability warrants an initial disability rating of 10 percent throughout the duration of the appeal under DC 5003. 38 C.F.R. §§ 4.3, 4.7, 4.71a; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). REASONS FOR REMAND 1. An initial disability rating in excess of 10 percent for cervical spondylosis with right upper extremity paresthesias Since the last December 2016 VA examination, the Veteran testified in the September 2020 video conference hearing testimony that his cervical spondylosis with right upper extremity paresthesias has gotten worse and may include additional neurological symptoms since that time. Therefore, it is necessary to adequately determine the current severity of the Veteran’s cervical spine disability and the functional effects of such disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); VAOPCGPREC 11-95 (April 7, 1995); see also 38 C.F.R. § 3.327. 2. A compensable disability rating for residuals of status post excision right axillary hydradenitis suppurative of the right arm Since the last December 2016 VA examination, the Veteran testified in the September 2020 video conference hearing testimony that his residuals of status post excision right axillary hydradenitis suppurative of the right arm has gotten worse since that time and may include additional symptoms not addressed in the prior VA examination. The Board also observes that no scar was noted on the December 2016 VA examination and no VA examination of scars has been provided during the appeal period, although the Veteran has described having a painful, recurring four inch scar on the right arm during the September 2020 hearing. Therefore, it is necessary to adequately determine the current severity of the Veteran’s residuals of status post excision right axillary hydradenitis suppurative of the right arm and the functional effects of this disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); VAOPCGPREC 11-95 (April 7, 1995); see also 38 C.F.R. § 3.327. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all pertinent VA and private medical records the Veteran adequately identifies. 2. Upon receipt of all additional records, schedule the Veteran for a VA examination of his cervical spine. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The evaluation of the cervical spine should consist of all necessary testing, including those related to neurological complaints. To the extent possible, the examiner should identify any functional effects and functional impairment of the Veteran's cervical spine on his occupational functioning, daily life, and ordinary activities. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 3. Upon receipt of all additional records, schedule the Veteran for a VA examination of his residuals of status post excision right axillary hydradenitis suppurative of the right arm, including the skin and scar of the right arm. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The evaluation of the right arm skin and scars should consist of all necessary testing. To the extent possible, the examiner should identify any functional effects and functional impairment of the Veteran's right arm disabilities on his occupational functioning, daily life, and ordinary activities. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saira Spicknall, 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.