Citation Nr: 21015870 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 19-26 618 DATE: March 18, 2021 ORDER Entitlement to service connection for bilateral ankle disability is dismissed. Entitlement to service connection for sleep apnea is dismissed. Entitlement to an earlier effective date for tinnitus is dismissed. Entitlement to an initial rating in excess of 10 percent prior to August 11, 2020, and in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine is denied. Entitlement to an initial noncompensable rating prior to July 24, 2013, and in excess of 10 for left lower extremity radiculopathy (sciatic nerve) is denied. Entitlement to an initial noncompensable rating prior to July 24, 2013, and in excess of 10 for right lower extremity radiculopathy (sciatic nerve) is denied. REMANDED Entitlement to service connection for acid reflux to include on a secondary basis is remanded. Entitlement to service connection for constipation to include on a secondary basis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to August 11, 2020, the Veteran’s lumbar spine disability, even with consideration of painful motion, was not manifested by forward flexion of the thoracolumbar spine that was limited to greater than 30 degrees but not greater than 60 degrees. 2. From August 11, 2020, the Veteran’s lumbar spine disability has not been shown to be functionally limited to 30 degrees or less; there is no showing or allegation of ankylosis in the spine; and prescribed bed rest has not been shown 3. The Veteran’s radiculopathy of the bilateral lower extremities was productive of, at worst, mild incomplete paralysis of the sciatic nerve, not moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for dismissal of bilateral ankle disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of sleep apnea have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for dismissal of earlier effective date of tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. For any period, the criteria for an increased rating for degenerative disc disease of lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.  5. For any period, the criteria for an increased rating for radiculopathy of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.20, 4.27, 4.120, 4.123, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1963 to April 1991. As explained below, the issues on appeal were previously addressed in two separate Board decisions. In a May 2017 decision, the Board granted service connection degenerative disc disease of the lumbar spine, with associated radicular symptoms in the bilateral lower extremities. In a May 2017 rating decision, the Agency of Original Jurisdiction (AOJ) implemented the Board’s grant of service connection and assigned initial ratings, which is the rating decision on appeal. In February 2020, the Board remanded the issues of degenerative disc disease of the lumbar spine and radiculopathy of the bilateral lower extremities for further development. In a separate December 2019 decision, the Board issued a decision which denied service connection for bilateral ankle disability; acid reflux; sleep apnea; constipation; and granted earlier effective date for tinnitus. In October 2020, the Veteran appealed the portion of the Board’s decision that denied service connection for acid reflux and constipation, both to include secondary basis, to the United States Court of Appeals for Veteran Claims (Court) which granted a Joint Motion for Partial Remand (JMPR) filed by the parties. As part of the motion, the appellant expressly waived his appeal to those parts of the Board’s December 2019 decision that denied entitlement to service connection claims for bilateral ankle disability and sleep apnea, both to include on a secondary basis. The appellant also indicated the Board’s grant for tinnitus was not to be disturb. Thus, the Court dismissed the appeal with respect to those issues not argued on appeal. Pursuant to a JMPR, in an October 2020 Order, the Court vacated, in part, the Board’s December 2019 decision that denied entitlement to service connection for acid reflux and constipation, both to include on a secondary basis, and remanded the matter on the question of secondary service connection to the Board consistent with the terms of the joint motion. INCREASED RATING Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. With the initial rating assigned with the award of service connection for a disability, “staged” ratings to reflect distinct periods when different levels of impairment were shown are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Lumbar Spine Disability Entitlement to an initial rating in excess of 10 percent prior to August 11, 2020 and a rating in excess of 20 percent thereafter for degenerative disc disease of the lumbar spine disability. As noted in the Introduction, by rating action of May 2017, the AOJ implemented the Board’s grant of service connection and assigned an initial 10 percent evaluation for degenerative disc disease of the lumbar spine effective May 11, 2011. During the appeal, the AOJ increased the evaluation to 20 percent effective August 11, 2020, the date of VA examination. The Veteran disagrees with the assigned ratings. The Veteran’s lumbar spine disability is currently rated under Diagnostic Code 5242. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Although a June 2019 VA examiner indicated IVDS, the evidence of record does not show that the Veteran has been prescribed any bed rest to treat his lumbar spine disability. Thus, the absence of any prescribed bed rest precludes a rating from being assigned under a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 38 C.F.R. § 4.71a, Diagnostic Code 5243. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran’s degenerative disc disease lumbar spine disability based on limitation of motion under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or, when the combined range of motion of the thoracolumbar spine is greater than 120 degrees; or when there is 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 evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Note (2), see also Plate V. At a VA examination in September 2011, the Veteran demonstrated forward flexion to 80 degrees; extension to 30 degrees; lateral flexion 30 degrees, bilaterally; rotation to 30 degrees, bilaterally. The examiner indicated no objective evidence of painful motion. The Veteran retained normal 5/5 strength. There was no ankylosis of the spine observed and no neurologic abnormalities indicated. At a VA examination in June 2019, the Veteran demonstrated forward flexion to 80 degrees; extension to 30 degrees; lateral flexion 30 degrees, bilaterally; rotation to 30 degrees, bilaterally. Evidence of pain exhibited on range of motion was noted. The Veteran retained normal 5/5 strength. There was no ankylosis of the spine observed and no neurologic abnormalities indicated. At a VA contract examination in August 2020, the Veteran demonstrated forward flexion to 60 degrees; extension to 20 degrees; lateral flexion 20 degrees, bilaterally; rotation to 20 degrees, bilaterally. Evidence of pain exhibited on range of motion was noted. The Veteran retained normal 5/5 strength. There was no ankylosis of the spine observed and no neurologic abnormalities indicated. Upon review of the evidence of record, the Board finds that the Veteran is adequately compensated by the assigned evaluations based on limitation of motion, and higher ratings are not warranted. For the period prior to August 11, 2020, the Board finds that the Veteran is adequately compensated by the initial 10 percent evaluation based on limitation of motion. Medical records do not demonstrate findings consistent with a higher 20 percent evaluation. In fact, the Veteran demonstrated forward flexion to 80 degrees on VA examinations in 2011 and 2019. Without a showing of limitation of flexion to 60 degrees, a rating higher is not appropriate or warranted here. The Board is not aware of any other evidence that shows the severity of the Veteran’s degenerative disc disease of the lumbar spine disability for the period prior to August 11, 2020. As such, an initial rating in excess of 10 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Likewise, for the period from August 11, 2020, the Board finds that a rating in excess of 20 percent is not warranted under Diagnostic Codes 5242. As demonstrated above, he had forward flexion, at worst, to 60 degrees in August 2020 VA examination, the basis for AOJ grant of an increased rating. Absent a showing of forward flexion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, as required for a 40 percent rating, a higher evaluation is not supported. As such, a rating in excess of 20 percent is not warranted under the General Rating Formula. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. Further, the Board has considered whether higher disability evaluations are warranted based on functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Although the record shows the Veteran’s report of pain on movement, the medical evidence does not show that pain resulted in additional functional impairment, including additional limitation of motion, on account of pain, weakness, that is not already contemplated by the assigned 10, 20 percent ratings. 38 C.F.R. § 4.59. In this regard, for period prior to August 11, 2020, the record does not show limitation of flexion to 60 degrees; for period from August 11, 2020, the record does not show limitation of flexion to 30 degrees or less, or ankylosis of the lumbar spine. Thus, higher ratings are not warranted for the Veteran’s lumbar spine disability even in consideration of painful motion and other factors such as weakness, fatigability, lack of endurance, and incoordination. Based on these findings, the Board concludes that an initial rating in excess of 10 percent prior to August 11, 2020, and in excess of 20 percent for degenerative disc disease of the lumbar spine is not warranted. In addition to considering the orthopedic manifestations of a back disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. However, the Veteran is already service-connected for radiculopathy of the lower extremities, and the evidence does not show that he has any other neurological abnormalities including bladder impairment or bowel impairment as a result of his service-connected lumbar spine disability. Thus, there is no basis for separate neurological evaluations. Radiculopathy of the Lower Extremities Entitlement to an initial noncompensable rating prior to July 24, 2013, and in excess of 10 percent thereafter for radiculopathy of the bilateral lower extremities. As noted in the Introduction, the AOJ implemented the Board’s grant of service connection and assigned an initial noncompensable evaluation for radiculopathy of the bilateral lower extremities effective May 11, 2011, and an evaluation of 10 percent from September 16, 2013. See May 2017 rating decision. During the pendency of the appeal, by rating decision of September 2019, the AOJ granted an earlier effective date of July 24, 2013, the date of the MRI which noted subjective complaints of leg pain. The Veteran’s disability is currently rated under Diagnostic Code 8520, which evaluates incomplete paralysis of the sciatic nerve. Under Diagnostic Code 8520, a 10 percent evaluation is warranted for mild incomplete paralysis. A 20 percent evaluation is warranted for moderate incomplete paralysis. A 40 percent evaluation is warranted for moderately severe incomplete paralysis. 38 C.F.R. § 4.124, Diagnostic Code 8520. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. As explained below, the record demonstrates findings consistent with the assigned 10 percent evaluations from July 24, 2013 for the Veteran’s radiculopathy (sciatic nerve) of the bilateral lower extremities, and a higher rating is not warranted at any point during the entire appeal. The Board observes that the medical and lay evidence of record were taken into consideration in the AOJ’s September 2019 rating decision assigning 10 percent evaluation from July 24, 2013, the date of the MRI which noted subjective complaints of leg pain. There is no evidence prior to this period that would support a compensable rating. In fact, at the time of the VA back examination in September 2011, there were no reports of any radicular symptoms of the bilateral lower extremities associated with the back. The medical evidence does not support a finding of mild incomplete paralysis for the period prior to July 24, 2013. Likewise, from July 24, 2013, a rating higher than the assigned 10 percent evaluation is not warranted. While the record shows the Veteran’s report of mild to moderate intermittent pain in the lower legs, the June 2019 and August 2020 VA medical professionals who examined the Veteran consistently indicated severity of radiculopathy as “mild” incomplete paralysis. The Veteran’s radiculopathy of the lower extremities was manifested by, at worst, mild incomplete paralysis, not moderate. The Veteran’s symptoms do not rise to the next higher rating. Accordingly, an initial compensable rating prior to July 24, 2013, and a rating in excess of 10 percent thereafter, for radiculopathy of the bilateral lower extremities, are not supported, and the claims must be denied. 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS FOR REMAND 1. Entitlement to service connection for acid reflux to include on a secondary basis to posttraumatic stress disorder (PTSD) and associated medications. In the August 2020 joint motion, the parties agreed that, in denying service connection for acid reflux, the Board erred by relying on an inadequate August 2015 VA examination. See JMPR at 2. In rendering a negative nexus opinion that “acid reflux is less likely than not proximately due to or the result of [his] PTSD medications or directly and secondary to PTSD,” the parties indicate that the “examiner provided general medical literature regarding causes and a generic list of common risk factors for acid reflux disease.” Id. The parties state that the “August 2015 examination is insufficient as it fails to apply valid medical analysis to the significant facts” of the Veteran’s case. Id. Considering the deficiency identified, remand is warranted for an adequate medical opinion. 2. Entitlement to service connection for constipation to include on a secondary basis. In the August 2020 joint motion, the parties agreed that the Board erred by discounting favorable evidence, the Veteran’s lay statements that his constipation was caused by his service-connected PTSD or associated medications. See JMPR at 3. Without proper consideration or a medical opinion as to the effects of Appellant’s medication on his constipation, the parties state that “the Board focused primarily on the nexus between constipation and PTSD.” Thus, remand is necessary to obtain a medical opinion that takes into consideration the reported lay statements. 3. Entitlement to TDIU. In the Board’s February 2020 remand, the issue of entitlement to a TDIU was remanded. The record shows a VA letter dated September 2020 was sent, which included an application VA Form 21-8940, requesting the Veteran to supply information about his employment history, including dates when his disability affected full-time employment, the date the veteran last worked full-time, and the date the veteran became too disabled to work. As of date, the Veteran has not submitted a VA form 21-8940. However, the record shows a correspondence from the Veteran’s representative in May 2018 titled “Status Request” indicating that an Application for Increased Compensation Based on Unemployability was submitted in October 2017. See Correspondences dated May 2018 and November 2018. This application which the attorney indicates was submitted in October 2017 is not of record. Given the inconsistent record, further action is needed. On remand, the RO should attempt to obtain a copy of the application that was submitted in October 2017 and request employment information to the Veteran’s previous employers to complete a VA Form 21-4192 Request for Employment Information in Connection with Claim for Disability Benefits, which has not been accomplished. As such, this information is critical to the resolution of the Veteran’s TDIU claim. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Obtain medical opinions from a qualified medical professional to determine the nature and etiology of the Veteran’s claimed acid reflux and constipation. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. Based on the review of the record, the examiner should provide opinions on the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s claimed acid reflux and constipation are caused by service-connected disabilities, in particular, PTSD and medications taken for treatment of service-connected disabilities? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s acid reflux and constipation are aggravated by service-connected disabilities, in particular, PTSD and medications taken for treatment of service-connected disabilities? In rendering the opinion, the examiner is asked to consider medical and lay evidence of record, including medical articles submitted by the Veteran on PTSD. A complete rationale for all opinions is requested. 2. Attempt to obtain a copy of the Veteran’s Application for Increased Compensation Based on Unemployability, VA Form 21-8940 which he states was submitted in October 2017. See Correspondence dated May 2018. Send a letter which specifically requests that he complete and return an enclosed Veteran an Application for Increased Compensation Based on Unemployability, VA Form 21-8940. Afterwards, submit a request for employment information to the Veteran’s previous employer(s) to complete a VA Form 21-4192 Request for Employment Information in Connection with Claim for Disability Benefits. (Continued on the next page) 3. Upon completion of the requested development and any additional development deemed appropriate, adjudicate the claims on appeal. If the determination remains unfavorable, the Veteran and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, 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.