Citation Nr: 21020884 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-25 096A DATE: April 8, 2021 ORDER Beginning February 25, 2013, a 20 percent rating, but no higher, for degenerative arthritis of the spine with intervertebral disc syndrome (low back) is granted. A 10 percent rating for bilateral plantar fasciitis for the entire period on appeal is granted. REMANDED Entitlement to a rating in excess of 10 percent for degenerative arthritis of the spine with intervertebral disc syndrome (low back) prior to February 25, 2013, is remanded. Entitlement to a rating in excess of 10 percent for bilateral plantar fasciitis is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for right carpal tunnel syndrome is remanded. Entitlement to service connection for left carpal tunnel syndrome is remanded. Entitlement to compensation for total disability based on individual unemployability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. Beginning February 25, 2013, the evidence shows low back flexion limited to at least 60 degrees, but the evidence does not show flexion limited to less than 30 degrees, physician-prescribed bedrest, or ankylosis. 2. The evidence shows a moderate disability from bilateral plantar fasciitis with pain unresolved by shoe build-up or inserts for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, but not higher, for degenerative arthritis of the spine with intervertebral disc syndrome beginning February 25, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243-5242. 2. The criteria for a 10 percent rating bilateral plantar fasciitis for the entire period on appeal have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, DC 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1999 to January 2003. She also had service in the National Guard from March 2004 to April 2008. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, 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. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to give evidence of symptoms observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. A 20 percent rating for degenerative arthritis of the spine with intervertebral disc syndrome (low back) beginning February 25, 2013 The Veteran contends she is entitled to a higher rating because of functional limitation caused by her back disability. The Veteran’s low back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243-5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for 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. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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; 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 criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides for a 10 percent rating for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the prior 12 months. Higher ratings are warranted for longer portions of incapacitation during a 12-month period. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243. Based on the evidence, the Board finds the Veteran’s low back disability met the criteria for a 20 percent rating beginning February 25, 2013. Specifically, the May 2015 examiner measured flexion to 60 degrees but stated that an opinion could not be provided on limitation of motion with repeated use over time. The September 2020 examiner did address repeated use over time finding that while the Veteran had flexion to 60 degrees on her first measurement of active range of motion, her flexion would be limited to 50 degrees with repeated use over time. As such, the evidence shows flexion initially limited to 60 degrees and with additional functional limitation to 50 degrees at the time of both examinations. Moreover, on February 25, 2013, a treating provider evaluated the Veteran’s lumbar range of motion and found 50 percent of normal flexion. Normal forward flexion of the thoracolumbar spine is 90 degrees. 38 C.F.R. § 4.71a, DC 5242, Note (2). Fifty percent of normal flexion would be 45 degrees. Thus, the evidence shows limitation of flexion satisfying the 20 percent criteria on February 25, 2013. The question of the proper rating for the period prior to February 25, 2013, is addressed on remand. For the period from February 25, 2013, forward, the evidence does not show flexion limited to 30 degrees or less or ankylosis to warrant a rating in excess of 20 percent. During April 2013 treatment, the Veteran reported back pain, limitations in stooping and bending, and falls. During the May 2015 examination, the Veteran reported muscle spasms, pain, and fatigue but denied flare-ups. The examiner recorded flexion beyond 30 degrees, no pain with weight-bearing, no ankylosis, and no IVDS. The examiner noted use of a wheelchair was for the Veteran’s ankle condition, not her back. During the December 2018 hearing, the Veteran reported receiving treatment for her back at least every three months, wearing a back brace, and doing physical therapy. She testified that she had limited mobility, limited ability to do tasks of daily living, constant pain, pain aggravated by use, the need to sit or stand at different times, flare-ups caused by weather and requiring her to be bedridden, and use of a wheelchair 50 percent of the time since a motor vehicle accident in 2009. During the September 2020 examination, the Veteran reported pain, limitations in bending and range of motion, inability to pick things up off the ground, inability to walk or stand for more than 20 minutes, and no flare-ups. The examiner recorded flexion beyond 30 degrees, no pain with weight-bearing or non-weight-bearing, no ankylosis, no episodes of required bed rest from IVDS, and passive range of motion equaling active range of motion. VA treatment records show complaints and treatment for back pain but no range of motion measurements. A rating in excess of 20 percent is not warranted as the evidence does not show flexion limited to less than 30 degrees or ankylosis of the thoracolumbar spine. Both examiners and the February 2013 provider measured flexion beyond 30 degrees. There is also no evidence of ankylosis, and the Veteran has not asserted having ankylosis. The Board has considered the Veteran’s reports of pain and functional limitation. However, the evidence does not show the requisite limitation of motion to warrant a rating in excess of 20 percent under the General Rating Formula for the Spine. Moreover, the evidence does not show bed rest prescribed by a physician. Although the Veteran reported during the Board hearing that she had ongoing treatment for her back and symptoms causing her to be bedridden, there is no evidence that a physician has prescribed bed rest for her IVDS during the period from February 2013 forward. The Veteran has not identified a source of prescribed bed rest during this period, and the September 2020 examiner found her IVDS did not require bed rest. As such, a rating in excess of 20 percent is also not available under the Formula for Rating IVDS based on Incapacitating Episodes. Finally, the Board notes that the examinations are adequate to rate the Veteran’s disability picture. The September 2020 examiner opined that the Veteran would experience an additional 10 degrees of limitation of flexion with repeated use over time, which the Board applied to the level of limitation manifested at the time of the May 2015 examination when the Veteran had the same, 60 degrees of active flexion. The September 2020 examiner addressed passive motion and found no pain on weight-bearing and non-weight-bearing, rendering a measurement of the effect of pain unnecessary. Although the Veteran reported flare-ups during the Board hearing, she denied flare-ups during both examinations, despite the undersigned judge advising her to describe to the examiner the impairment she experienced during flare-ups. As such, VA’s ability to provide an opinion on the potential functional impairment during flare-ups is frustrated. The Board finds the Veteran’s denial of flare-ups during the examinations suggests that flare-ups are not of the frequency and/or duration to significantly impact her overall functioning and disability picture. Therefore, the lack of opinion on flare-ups does not affect the outcome of her claim, and the evidence of record adequately represents her disability picture. Regarding neurological impairment, the Veteran was granted service connection for lower extremity radiculopathy in an October 2020 rating decision with 10 percent ratings in each leg effective September 18, 2020. The Veteran has not appealed the awards of rating or effective date for radiculopathy, and those issues are not before the Board at this time. The Veteran asserts that she has bowel and bladder impairment secondary to her low back disability. While the Veteran is competent to report symptomatology that she experiences, she has not shown that she has the medical experience or training to relate those symptoms to her service-connected low back disability, which is a medically complex determination that cannot be based on lay observation alone. See Jandreau, 492 F.3d at 1376-77. Instead, such a determination must be made by a medical professional with appropriate expertise. Id. In that regard, a September 2013 examiner opined that the Veteran’s urinary incontinence was not related to her back disability because medical literature did not support a causal relationship in the absence of a spinal cord injury. Similarly, the VA examiners in May 2015 and September 2020 found the Veteran did not have neurologic abnormalities related to her back disability. The Veteran has not identified a medical source relating her bladder and bowel symptoms to her back. Accordingly, the competent, medical evidence of record shows the bowel and bladder symptoms the Veteran experiences are not part of her low back disability and cannot be rated as such. Based on the foregoing, the evidence supports a 20 percent rating beginning February 25, 2013, but the preponderance of the evidence is against a rating in excess of 20 percent for the low back disability thereafter. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. A 10 percent rating, but not higher, for bilateral plantar fasciitis for the entire period on appeal The Veteran contends she is entitled to a higher rating because of pain, limitation in ambulation, and use of orthotics. The Veteran’s bilateral plantar fasciitis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276. Additionally, Diagnostic Code 5284 applies to other foot injuries and provides for a 10 percent rating for moderate, 20 percent rating for moderately severe, and 30 percent rating for severe disability. 38 C.F.R. § 4.71a. Finally, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). Beginning February 7, 2021, the rating schedule for the feet includes Diagnostic Code 5269 specifically for plantar fasciitis. Diagnostic Code 5269 provides for a 10 percent rating for unilateral or bilateral plantar fasciitis, a 20 percent rating for unilateral condition with no relief from both non-surgical and surgical treatment, and a 30 percent rating for bilateral condition with no relief from both non-surgical and surgical treatment. 38 C.F.R. § 4.71a. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Board finds the evidence supports assignment of a 10 percent rating for plantar fasciitis for the entire period on appeal. Specifically, the evidence shows pain on the plantar surfaces of the feet not fully relieved by shoe build-up or inserts. During the May 2011 examination, the Veteran reported pain two times per day lasting two hours and described the pain as burning, aching, cramping, and varying in severity with the most severe pain as 10/10. She reported limitations in ambulation and running. The examiner noted tenderness of the plantar surfaces and corrective devices – orthopedic shoes, arch supports, and shoe inserts – required for ambulation. During the May 2015 examination, the Veteran reported wearing custom orthotics, which helped her foot pain. The examiner recorded foot pain on weight-bearing, pain on use, and pain accentuated by use. During the December 2018 hearing, the Veteran reported her feet were worse since the 2015 examination, weather caused flare-ups of increased symptoms, and increased symptoms from her back and feet causing her to be bedridden. She testified that she used orthotics with some relief but only lasting a few hours. During the December 2019 examination, the Veteran reported numbness to searing pain in her toes, unsteadiness, and flare-ups of symptoms with increased pain on rainy or cold days. She noted the inability to stand for any length of time or walk more than 30 to 40 feet without increased pain and use of a wheelchair when the pain was too bad. The examiner recorded pain on use of the feet, pain accentuated on use, pain on weight-bearing, gait change affecting her ability to negotiate stairs and uneven surfaces, and inability to ambulate due to a combination of the feet, right ankle, and obesity. Based on the evidence, the Board finds the Veteran’s plantar fasciitis manifested as moderate disability throughout the period on appeal. Specifically, the Veteran reported pain with use, limitations on ambulation, and use of orthotics with limited relief throughout the period on appeal. Thus, the 10 percent rating is warranted throughout the period on appeal. See 38 C.F.R. § 4.71a, DC 5276, 5284. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the spine with intervertebral disc syndrome prior to February 25, 2013, is remanded. During the May 2011 examination, the Veteran reported flare-ups in her back disability manifested by weakness. To date, no medical provider has estimated how these reported flare-ups could have affected her range of motion, and a medical opinion is needed for such a purpose. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. In addition to a rating based on range of motion, the Veteran has been diagnosed with IVDS and could receive a rating based on incapacitating episodes. During the May 2011 examination, she reported an incapacitating episode in February 2011 for 90 days recommended by Dr. O. The examiner did not address whether bed rest would be required for the Veteran’s disability, and the claims file does not contain a record of bed rest prescribed by Dr. O. Accordingly, remand is also needed to provide additional evidence as to whether the Veteran’s IVDS required bed rest prescribed by a physician and at what frequency. 2. Entitlement to a rating in excess of 10 percent for plantar fasciitis is remanded. As noted above, the Veteran reported being unable to ambulate or stand for any length of time due to her feet. While the May 2015 examiner found her use of a wheelchair was due to non-service-connected ankle disability, the December 2019 examiner noted the Veteran’s limitations in ambulation and use of a wheelchair were a combination of her ankle, feet, and obesity. The Board finds additional clarification would be helpful to determine the extent of disability attributable to the Veteran’s plantar fasciitis, and an additional examination is needed. 3. Entitlement to service connection for a right hip disability is remanded. 4. Entitlement to service connection for a left hip disability is remanded. 5. Entitlement to service connection for right carpal tunnel syndrome is remanded. 6. Entitlement to service connection for left carpal tunnel syndrome is remanded. Although the Board regrets the additional delay, additional records requests could assist in proving the Veteran’s claims for service connection. Specifically, the Veteran has asserted that her hip and carpal tunnel syndrome disabilities began during active duty. The record shows she subsequently served in the Virginia National Guard from March 2004 to April 2008. Service treatment records from her National Guard service do not appear to be in the claims file and could assist in showing a connection between her current claim and active duty. The Agency of Original Jurisdiction (AOJ) should make attempts to obtain treatment records from her National Guard service, including from the appropriate source in Virginia. 7. Entitlement to compensation for TDIU is remanded. In a July 2020 correspondence, the Veteran reported having to resign from a job due to her service-connected disabilities. As such, an appeal for TDIU is considered part of her appeal for increased ratings for her back and foot disabilities. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). On remand, the AOJ should request the Veteran complete a VA form 21-8940 or otherwise provide information on her education and occupational history. Additionally, the AOJ should obtain any vocational rehabilitation documentation not already of record. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records and VA vocational rehabilitation records. 2. Request copies of service treatment records from the Veteran’s period of National Guard service from March 2004 to April 2008, including from the appropriate source in Virginia. Requests for federal records should continue until the records are obtained or deemed unavailable. 3. Request the Veteran complete a VA 21-8940 or otherwise identified her education and occupational history. 4. Request the Veteran identify and sign a release for any prescription from Dr. O for bed rest in February 2011. 5. Then, request a medical opinion for the Veteran’s low back claim. First, the medical expert should review the claims file and address how the Veteran’s reported flare-ups would have impacted her function, expressed in terms of degrees, during the period prior to February 25, 2013. Next, the expert should address whether the Veteran would have experienced different range of motion with passive motion and pain with weight-bearing and non-weight-bearing prior to February 25, 2013. Finally, the expert should opine as to whether the Veteran’s low back disability would have required bed rest prescribed by a physician prior to February 25, 2013, and if so, at what frequency and duration. The examiner is asked to describe whether pain significantly limited functional ability during flares and, if so, the examiner must estimate the range of motion during flares prior to February 25, 2013. IF THE EXAMINATION DID NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. 6. Obtain a new examination for the Veteran’s bilateral plantar fasciitis. The examiner should measure and record the current symptoms and impairment. The examiner should specifically address how the Veteran’s plantar fasciitis affects her ability to ambulate, including need of a wheelchair. The examiner should explain whether the effects of the Veteran’s non-service-connected ankle disability and obesity can be separated from those from her service-connected disabilities to a degree of medical certainty. If not, the examiner should record any effects as if caused by service-connected disabilities. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.P. Armstrong 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.