Citation Nr: 21021488 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-22 953 DATE: April 13, 2021 ORDER An increased disability rating in excess of 10 percent for mechanical low back pain syndrome prior to July 31, 2020, and in excess of 40 percent therefrom is denied. REMANDED Entitlement to service connection for a cervical spine condition is remanded. Entitlement to service connection for a left elbow condition is remanded. Entitlement to service connection for a right elbow condition is remanded. Entitlement to service connection for a left shoulder condition is remanded. Entitlement to service connection for a right shoulder condition is remanded. FINDING OF FACT Prior to July 31, 2020, the Veteran’s mechanical low back pain syndrome (hereinafter “low back disability”), was manifested by no more than painful motion, and since July 31, 2020, the disability has not been manifested by ankylosis. CONCLUSION OF LAW The criteria for an increased disability rating in excess of 10 percent for mechanical low back pain syndrome prior to July 31, 2020, and in excess of 40 percent therefrom have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.55, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from July 1986 to February 1987, from May 1988 to July 1992, and from November 1993 to November 1996. These matters are on appeal from April 2016 and August 2016 rating decisions. In a February 2019 decision, the Board reconsidered the service connection claims pursuant to 38 C.F.R. § 3.156(c). The Board then denied the claims of service connection for a left shoulder disability, a right shoulder disability, a left elbow disability, and a right elbow disability, and denied a higher rating for mechanical low back syndrome. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). A Joint Motion for Partial Remand (JMPR) was adopted by the Court in an Order issued in October 2019. The Board remanded these matters in April 2020. In that remand, the Board took jurisdiction of the cervical spine service connection claim, consistent with the JMPR, under DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Upon remand, a January 2021 rating decision granted a staged, 40 percent disability rating for the low back disability effective from July 31, 2020. Because higher ratings are available for low back disabilities, and because a claimant is presumed to be seeking the maximum available rating for a service-connected disability, the claim for a higher rating, as reflected on the title page, remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014). An increased disability rating in excess of 10 percent for the low back disability prior to July 31, 2020, and in excess of 40 percent therefrom The Veteran is seeking an increased rating for his low back disability. He filed a claim for increase in February 2016, which begins the period of appellate review now before the Board (plus consideration of the one-year look back period prior to the filing of that claim). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). This disability has been assigned a 10 percent rating prior to July 31, 20120, and a 40 percent rating beginning from that date. The parties to the JMRP found that remand of this issue was needed pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017). Upon remand by the Board in April 2020, a Sharp-compliant VA examination was conducted in July 2020. Hence, the Board finds that there has been substantial compliance with the JMPR. A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s spine disability has been assigned a disability rating under DC 5237 of 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The applicable rating schedule is as follows: The Spine Rating General Rating Formula for Diseases and Injuries of the Spine (For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): 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 Unfavorable ankylosis of the entire spine 100 Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40 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 20 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 10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, 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 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. Note (3): 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): Round each range of motion measurement to the nearest five degrees. Note (5): 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): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Disabilities of the spine involving intervertebral disc syndrome (IVDS) are assigned under DC 5243, which provides that the disability is to be rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher evaluation. See 38 C.F.R. § 4.71a, Note. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See id. at Note (1). Effective February 7, 2021, the DCs pertaining to the lumbar spine were amended. For purposes of this decision, the applicable rating criteria for those DCs did not materially change. See 85 Fed. Reg. 76453 (Nov. 30, 2020) (as corrected at 85 Fed. Reg. 85523 (Dec. 29, 2020), as corrected at 86 Fed. Reg. 8142 (Feb. 4, 2021)). 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). B. Discussion From February 2016 From February 2016 until July 31, 2020, the Veteran’s low back disability has been assigned a 10 percent rating. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent prior to July 31, 2020. The Board acknowledges the Veteran’s lay reports of functional loss. At a March 2016 VA examination, he reported pain, which flared-up with prolonged standing or sitting. Even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s description of his functional limitations would not result in limitation of motion more nearly approximating 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. At the March 2016 VA examination, he had flexion to 70 degrees, and a combined range of motion of 190 degrees. Additionally, the March 2016 VA examination found that the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS, as confirmed by the March 2016 VA examination. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. The March 2016 VA examination found no signs or symptoms of radiculopathy or other neurological abnormality. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent prior to July 31, 2020. From July 31, 2020 From July 31, 2020, the Veteran’s low back disability has been assigned a 40 percent rating. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent. The Board acknowledges the Veteran’s lay reports of symptoms and functional loss. At a July 2020 VA examination, the Veteran reported flare-ups happening when in the same position for extended periods of time. This involved stiffness and locking pain, plus difficulty laying, sitting, standing, or walking for extended periods of time. reported difficulty bending at the waist. Even considering these reports of functional loss, the degree of additional limitation reflected by the Veteran’s statements would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. The July 2020 VA examination confirmed the absence of ankylosis. The Veteran did not have IVDS as again confirmed by the July 2020 VA examination. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. At the July 2020 VA examination, the Veteran denied any numbness and tingling in the lower extremities, and the VA examiner found no signs or symptoms of radiculopathy or any other neurologic abnormality. The Board is mindful that the RO assigned the 40 percent rating mechanically based on the date of the July 2020 VA examination. Based upon the evidence in this case, the exact onset of the Veteran’s 40 percent level of disability cannot be determined with any certainty. The earliest that it can be factually ascertained that he met the criteria for a percent rating is July 31, 2020, the date he was examined by VA. There is no intervening evidence to confirm when this disability level arose. Hence, there is no evidentiary basis to assign the 40 percent rating earlier than July 31, 2020. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015); accord Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014); see also Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); VAOPGCPREC 12-98; Bria v. Wilkie, No. 19-4625, 2021 U.S. App. Vet. Claims LEXIS 50, at *23 (Vet. App. Jan. 15, 2021). For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent. In denying higher ratings in this case, 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. REASONS FOR REMAND 1. Service connection for a cervical spine condition. 2. Service connection for a left elbow condition. 3. Service connection for a right elbow condition. 4. Service connection for a left shoulder condition. 5. Service connection for a right shoulder condition. Issues 1-5 are remanded for a new VA opinion. The Board previously remanded these claims in April 2020 to obtain a VA examination and opinion regarding the nature and etiology of the Veteran’s cervical spine disabilities and any associated shoulder and elbow disabilities. Upon remand, a VA examiner in July 2020 opined that the Veteran’s cervical spine condition, degenerative arthritis, was less likely than not incurred in or caused by service. The examiner cited the lack of service treatment records showing complaints or treatment for the neck and the lack of evidence within one year of separation. The VA examiner found the first date for complaint of neck pain to be in 2010, 14 years after separation from service. In October 2020, a different VA examiner reviewed the July 2020 VA examiner’s opinion and found it “was appropriate.” This examiner reasoned that the available medical records were silent for medical evaluations, treatment, or a diagnosis of a cervical spine condition while in service. The examiner found the symptoms to be subjective only and not confirmed in the available claims file. According to the examiner, per the available medical records, the Veteran was not diagnosed with cervical spine degenerative arthritis until 2010. Hence, the VA examiner concurred that a nexus has not been established for a cervical spine condition while in service. Regarding the shoulders, the July 2020 VA examiner also gave a negative opinion. The VA examiner reasoned that arthritis in one joint does not cause arthritis in another joint. The VA examiner stated that medical literature does not support this. The VA examiner opined that a nexus has not been established, and the Veteran’s degenerative shoulder arthritis, shoulder rotator cuff tendonitis, and the shoulder AC joint osteoarthritis are less likely than not proximately due to or the result of the cervical spine disability. Regarding the elbows, the July 2020 VA examiner gave a positive opinion relating the Veteran’s elbow disorders to the cervical spine condition. The VA examiner reasoned that the current severity of the cervical spine disability warranted by proximity, association with the left elbow condition. The examiner explained that the disorder began subsequent to the condition and was the direct result of the antecedent condition. The examiner found that the medical literature supported this, so a nexus was established. The examiner further explained that the secondary relationship was evidenced by decreased range of motion on examination, the documented severity of the Veteran’s cervical spine condition, and in-service documentation of elbow pain on a medical history form. Finally, the examiner noted that the Veteran’s medial epicondylitis is a condition that develops as a result of medial stress overload on the flexor musculature at the elbow, and the instant Veteran experienced stress overload with his “laborous [sic] military work.” The examiner cited literature stating that medial epicondylitis may frequently occur among patients with C6 and C7 radiculopathy, and patients that present with medial epicondylitis can have an overlying cervical radiculopathy that is responsible for the onset of the medial elbow symptoms. In January 2021, a different VA examiner reviewed the July 2020 VA examiner’s positive opinion. This VA examiner opined that the Veteran’s bilateral elbow condition was less likely than not related to service. The examiner reasoned that there was no evidence of a bilateral elbow condition while in service. The separation examination was negative for bilateral elbow conditions, and the VA examiner found these examinations notably thorough. The examiner felt it would be highly unlikely that a bilateral elbow condition would have gone unreported or unnoted at the examination. The examiner observed that there was no evidence of a bilateral elbow condition until in or around 2020. The January 2021 VA examiner also concluded that the prior, July 2020 VA examiner had erred in assigning the cause of medial epicondylitis to cervical radiculopathy. The examiner explained that a condition of one joint or joint system, such as the cervical spine/radiculopathy, does not cause a condition of another joint, which is established by medical knowledge and practice, confirmed by standard texts such as Wheeless. Also, the examiner noted, radiculopathy does not cause an overuse injury of the elbows. Rather, according to the examiner, epicondylitis is most commonly due to repetitive rotational use of the elbow. Therefore, the examiner found it was less likely than not that the Veteran’s bilateral medial epicondylitis had its nexus in service or was due to events in service and less likely than not due to the cervical spine conditions/radiculopathies. Overall, the Board finds these examinations inadequate to resolve the issues. Regarding the cervical spine, the July 2020 and October 2020 VA examiners both relied on an absence of documented complaints or treatment during and after service without explaining why, as a medical matter, the Veteran would have sought treatment or complained of the cervical spine condition during service, or why an absence of treatment (as opposed to symptoms) was otherwise medically significant. See, McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). In fact, both examiners failed to consider the Veteran’s testimony that he first noticed symptoms during service. He specifically informed the July 2020 VA examiner that he was in service when he began noticing neck pain with activity. Failing to account for this evidence leaves both examiners’ opinions inadequate. See McKinney, 28 Vet. App. at 30. The negative opinions regarding the shoulders and elbows likewise relied on an absence of evidence. Of note, the January 2021 VA examiner’s opinion regarding the elbows gave a compelling reason for why the service separation examination might be considered evidence of absence. However, the opinions as to secondary service connection are inconsistent and contradictory. The July 2020 VA examiner found medical literature supporting a conclusion that the bilateral elbow condition was secondary to the cervical spine condition, whereas the January 2021 VA examiner stated unequivocally that standard texts confirmed that a secondary relationship was not medically possible. While reasonable doubt might be resolved in the Veteran’s favor on the basis of these dueling opinions, the Veteran is not service-connected for a cervical spine disability. Hence, it would be premature to issue a final decision on the claims. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed cervical spine, shoulder, and elbow conditions. For each diagnosis, the examiner must address the following: (a.) Whether the disorder at least as likely as not (1) began during active service, (2) manifested within 1 year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) , is otherwise related to an in-service injury, event, or disease. (b.) Whether the current condition is at least as likely as not (1) proximately due to a different medical condition, or (2) aggravated by a different medical condition. If so, the examiner is asked to identify the primary medical condition. In answering these questions, the examiner is asked to consider the statements from the Veteran indicating that symptoms, such as neck, shoulder, and elbow pain, started during service and worsened over the years after service. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 2. Then, readjudicate the claims on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.