Citation Nr: 21021095 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-06 303 DATE: April 9, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for traumatic arthritis, thoracic spine is denied. REMANDED Entitlement to service connection for a heart disorder is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to special monthly compensation (SMC) based on aid and attendance is remanded. FINDING OF FACT The preponderance of the evidence weighs against finding that the Veteran’s traumatic arthritis, thoracic spine manifests in unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for traumatic arthritis, thoracic spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1983 to May 1986, July 1986 to March 1988, and May 1988 to May 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the case in November 2018 for further development. The requested development as to the claim adjudicated below has been completed to the extent possible, and no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). During the course of the appeal, in a June 2020 rating decision, the RO granted service connection for a neck condition, gastroesophageal reflux disease, and major depressive disorder (claimed as posttraumatic stress disorder). As such, the grants of service connection represent the full benefits sought on appeal and the matters are no longer for appellate consideration. The June 2020 rating decision also increased the Veteran’s rating for traumatic arthritis, thoracic spine to 40 percent disabling, effective November 30, 2012. As the grant of a 40 percent rating, effective November 30, 2012 did not constitute a full grant of the benefits sought, the increased rating issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). Entitlement to a disability rating in excess of 40 percent for traumatic arthritis, thoracic spine is denied. The Veteran is seeking a disability rating in excess of 40 percent for his traumatic arthritis, thoracic spine. He contends his thoracic spine disability is more severe than reflected by his assigned disability rating. The Veteran’s traumatic arthritis, thoracic spine is rated under Diagnostic Code 5242, which pertains to degenerative arthritis of the spine. Disabilities of the spine are rated under the General Rating Formula for Diseases or Injuries of the Spine (General Formula) for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula); whichever method results in the higher evaluation when all disabilities are combined will be used. The Board notes that 38 C.F.R. § 4.71a has been amended effective February 8, 2021; however, the changes do not influence the evaluation of the Veteran’s claim. As relevant in this case, under the General Formula, 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. 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. Under the IVDS Rating Formula, a 10 percent disability rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent disability rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent disability rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent disability rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is 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, Diagnostic Code 5243, Note 1. Based on a review of the record, the Board finds that the evidence does not support a disability rating in excess of 40 percent for the Veteran’s service-connected traumatic arthritis, thoracic spine. The Veteran was afforded a VA examination in December 2013. He reported that injections, physical therapy, and chiropractic treatment had not helped with his back pain. The Veteran noted he used a TENS unit and treated his pain with medication and lidocaine patches. He described a constant throbbing pain and occasional sharp pain with activity. The Veteran reported he was limited to driving/sitting for 20 minutes, standing for 45 minutes, walking one mile, and lifting 10 pounds. He denied flare-ups of the thoracolumbar spine. The VA examiner confirmed a diagnosis of traumatic arthritis of the thoracic spine and T7-8 compression fracture. On examination, range of motion testing of the thoracolumbar spine revealed forward flexion to 30 degrees with objective evidence of painful motion beginning at 30 degrees, right lateral rotation to 20 degrees with objective evidence of painful motion beginning at 20 degrees, and left lateral rotation to 20 degrees with objective evidence of painful motion beginning at 20 degrees. No response was provided for extension, right lateral flexion, and left lateral flexion. The Veteran was able to perform repetitive-use testing with three repetitions resulting in forward flexion to 30 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. No response was provided for extension, right lateral flexion, and left lateral flexion. The examiner indicated there was no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. Less movement than normal and pain on movement were contributing factors of disability. Pain all along the spine in the thoracic region to the flanks was noted. The Veteran did not have muscle spasms or guarding of the thoracolumbar spine. Muscle strength was normal with no muscle atrophy noted. Reflex and sensory exams were normal. Straight leg test was negative bilaterally and the Veteran did not have signs or symptoms due to radiculopathy. No ankylosis or IVDS of the spine was noted. The Veteran occasional used a brace for ambulation. No other pertinent physical findings, complications, conditions, signs and/or symptoms were noted. The examiner indicated that the Veteran’s thoracolumbar spine condition impacted his ability to work, noting that the Veteran was limited in prolonged walking, sitting, standing, or heavy lifting and had stopped working due to a motor vehicle accident during work. The examiner noted that the Veteran had refused to perform all required range of motion testing for the thoracolumbar spine, i.e., extension, right lateral flexion, and left lateral flexion, stating that it would hurt too much. The examiner noted that the Veteran had limited range of motion at all times and that limited forward flexion to 30 degrees showed a limitation of 60 degrees of normal range of motion due to pain. Further, the examiner noted that the Veteran’s right and left lateral rotation was limited to 20 degrees, which showed a limitation of 10 degrees of full range of motion due to pain. The examiner indicated that the Veteran’s current back condition was unrelated to his service-connected back condition, as the severity of his current back condition only began after a motor vehicle accident in 2012 that involved an unrestrained rollover truck accident. In November 2018, the Board found that remand was necessary to afford the Veteran another VA examination. The Board noted that the December 2013 VA examiner had been unable to determine the severity of the Veteran’s service-connected thoracic spine disability due to his inability to distinguish service-connected symptoms from the symptoms related to his motor vehicle accident. Further, the examiner had provided an unclear and conflicting rationale regarding whether additional disability was a continuation of the Veteran’s service-connected thoracic spine disability. The Veteran was afforded a new VA examination in January 2020. He reported low back pain since service that worsened following his 2012 motor vehicle accident. He was told he was not a candidate for surgery and had been treating pain with mouth analgesics. The Veteran endorsed flare-ups of the thoracolumbar spine, noting an electrical shock if he sneezed or moved fast and experiencing pain like a hot poker into the spine. He reported having functional loss/impairment, noting that traveling was hard due to pain caused by bumps in the road, limitations with bending, and needing assistance with showering and getting dressed. The VA examiner confirmed diagnoses of traumatic arthritis, thoracic spine, and compression fracture, osteoporosis and thoracic spondylosis. The examiner indicated that due to the overlap in symptoms, he was unable to determine whether additional thoracic spine conditions were completely separate and distinct from the Veteran’s service-connected thoracic spine disability. On examination, range of motion testing of the thoracolumbar spine resulted in forward flexion to 5 degrees, extension to 0 degrees, right lateral flexion to 5 degrees, left lateral flexion to 5 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 5 degrees. Range of motion itself did not contribute to functional loss and pain was noted on exam on rest/non-movement. There was objective evidence of localized tenderness or pain on palpation of the paraspinous muscle that was moderate. There was evidence of pain with weightbearing and non-weightbearing. Passive range of motion could not be performed or was not medically appropriate. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. Pain significantly limited functional ability with repeated use over a period of time and with flare-ups. The examiner noted there was no additional loss in range of motion during these scenarios, only increased symptoms such as pain and fatigability. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Additional factors contributing to disability included less movement than normal due to ankylosis, limitation or blocking adhesions, etc.; disturbance of locomotion; interference with sitting; and interference with standing. The examiner explained that the Veteran experienced decreased range of motion, disturbances in locomotion, and pain that interfered with prolonged standing or sitting, requiring the Veteran to make frequent positional changes that interfered with the Veteran’s normal lifestyle and work environment. Muscle strength testing was normal with no muscle atrophy. Reflex and sensory exams were normal and straight left raising test was negative bilaterally. There were no signs or symptoms due to radiculopathy or other neurologic abnormalities. There was no ankylosis or IVDS of the spine. The Veteran regularly used a brace, walker, and crutches to aid in locomotion. No other pertinent physical findings, complications, conditions, signs and/or symptoms were noted. The examiner indicated that the Veteran’s thoracolumbar spine condition impacted his ability to work and that the Veteran should refrain from participating in employment tasks that required him to repetitively flex, extend, or rotate his thoracolumbar spine. The Veteran should be accommodated with the use of a chair when needed and be allowed to readjust anatomical positioning while at work as needed. The Board finds that a disability rating in excess of 40 percent for the Veteran’s traumatic arthritis, thoracic spine is not warranted, as there is no evidence demonstrating that the Veteran suffers from unfavorable ankylosis of the entire thoracolumbar spine. Both the 2013 and 2020 VA examinations explicitly indicated there was no ankylosis of the thoracolumbar spine. The Board notes that, similarly, the Veteran’s treatment records for the period on appeal do not demonstrate ankylosis of the entire thoracolumbar spine. Further, a higher disability rating on the basis of 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 is not warranted, as there is no indication of resulting ankylosis of the entire thoracolumbar spine necessary for a higher disability rating. . Finally, the Board has considered whether the Veteran is entitled to a higher rating for his traumatic arthritis, thoracic spine based on the IVDS Rating Formula; however, the evidence of record does not support IVDS of the thoracolumbar spine and its absence is specifically indicated in the 2013 and 2020 VA examinations. Accordingly, the Board finds that a disability rating in excess of 40 percent for the Veteran’s service-connected traumatic arthritis, thoracic spine is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a heart disorder is remanded. Pursuant to the Board’s November 2018 remand, the Veteran was afforded a VA examination for heart conditions in January 2020. The VA examiner noted that the Veteran reported rapid heart rates in 1983 and was diagnosed with paroxysmal supraventricular tachycardia. Review of service treatment record reflected evaluations for chest pain in November 1988 and May 1991. A January 1994 ECG showed sinus bradycardia. Post-service treatment records indicated a reported history of heart palpitations and a July 2012 private treatment record noted an assessment of possible paroxysmal supraventricular tachycardia. In November 2012, the Veteran was diagnosed with paroxysmal tachycardia. Following a review of the records and examination of the Veteran, the examiner stated that the Veteran reported his heart condition had resolved with ablation in 2017 and he denied any other heart condition. Therefore, the examiner offered no nexus opinion due to the resolved disability. The Board notes that a “current disability” for VA purposes is any diagnosis made during the claim period on appeal. Therefore, any diagnosis rendered during the appeal period, i.e., since the Veteran filed his claim, is considered a current diagnosis. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Although the January 2020 VA examiner noted that the Veteran’s heart condition had resolved in 2017, the examiner failed to provide an opinion regarding whether the Veteran’s heart condition during the appeal period (and prior to its resolution in 2017) was etiologically related to service. Therefore, the Board finds that the January 2020 VA examination is inadequate and an addendum opinion addressing nexus is necessary. 2. Entitlement to service connection for a right knee disability is remanded. The Veteran was afforded a VA examination for his knees in December 2013. The Veteran reported that he had two parachute injuries during service that resulted in right knee pain. Following review of the record and examination, the VA examiner opined that the Veteran’s right knee disability was less likely than not related to service. The examiner explained that the Veteran did not have a chronic knee condition while in service and his separation exam was negative for any knee condition. His records were silent for any knee conditions until he was involved in a motor vehicle accident in 2012 that resulted in knee pain. The Board finds this medical opinion to be inadequate to decide the claim. Once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The VA examiner improperly discounted the Veteran’s lay statements and relied primarily on the absence of contemporaneous medical records to render a negative nexus opinion; such opinions are inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Accordingly, remand for an addendum opinion that reflects consideration of the Veteran’s lay statements, specifically that he injured his right knee after two parachute jumps, is warranted. 3. Entitlement to service connection for a right hip disability is remanded. The Veteran is seeking entitlement to service connection for a right hip disability. Similar to his contentions regarding his right knee, the Veteran asserts his right hip disability is due to his duties as a “ParaJumper.” Review of the Veteran’s service records show that he received a Parachutist Badge. The Board notes that the Veteran has not been provided with a VA examination to determine if his right hip disability is etiologically linked to active duty. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the veteran has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. As there is evidence of a current disability and some evidence of a link to service, the Board finds that the Veteran should be afforded a VA examination to determine if his right hip disability is etiologically linked to active duty. 4. Entitlement to SMC based on aid and attendance is remanded. The resolution of the Veteran’s remanded claims above may have an effect on the merits of his claim for SMC based on the need for aid and attendance. As it is inextricably intertwined with the remanded claims, SMC must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the examiner that conducted the January 2020 VA examination or, if unavailable, another appropriate clinician, regarding the Veteran’s heart condition. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following: Is it as least as likely as not (50 percent probability or greater) that the Veteran’s heart condition had its onset in or is otherwise etiologically related to active duty service? Please explain why or why not. The examiner should provide an opinion for all heart conditions diagnosed during the period on appeal, regardless of whether the condition has resolved. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s right knee disability. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following: Is it as least as likely as not (50 percent probability or greater) that the Veteran’s right knee disability had its onset in or is otherwise etiologically related to active duty service? Please explain why or why not. In rendering the requested opinion, the examiner should consider and discuss the Veteran’s Parachutist Badge and his assertion that he experienced right knee pain following two parachute jumps. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. Schedule the Veteran for a VA examination for his right hip disability. The examiner must review the claims file. The examiner should respond to the following: Is it as least as likely as not (50 percent probability or greater) that the Veteran’s right hip disability had its onset in or is otherwise etiologically related to active duty service? Please explain why or why not. In rendering the requested opinion, the examiner should consider and discuss the Veteran’s Parachutist Badge and his assertion that his right hip disability is related to his duties as a “ParaJumper.” The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Silverblatt, 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.