Citation Nr: 21021981 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-58 768 DATE: April 14, 2021 ORDER A rating of more than 20 percent for degenerative arthritis of the spine and lumbar degenerative joint disease (DJD) (lumbar spine disability) is denied. REMANDED The issue of service connection for a skin disorder other than jungle rot is remanded. The issue of entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s degenerative arthritis of the spine and lumbar DJD best approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; they did not approximate forward flexion of the thoracolumbar spine 30 degrees or less, favorable or unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. CONCLUSION OF LAW The criteria for a disability rating of more than 20 percent for degenerative arthritis of the spine and lumbar DJD have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.10, 4.14, 4.2, 4.21, 4.25 4.40, 4.7 38 C.F.R. § 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1966 to April 1969, including service in the Republic of Vietnam. His military decorations include the Combat Infantryman Badge. Entitlement to a rating of more than 20 percent since October 16, 2015, for degenerative arthritis of the spine and lumbar DJD. Disability ratings are determined by applying the rating criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; see generally 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 more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). By way of history, the Veteran filed an increased rating claim for his service connected lumbar spine disability on October 16, 2015. In the February 2016 rating decision, the RO increased the Veteran’s rating to 20 percent disabling, effective October 16, 2015, the date of his claim, under Diagnostic Code 5242, degenerative arthritis of the spine. 38 C.F.R. § 4.71a. Effective February 7, 2021, the schedular criteria for rating the musculoskeletal system were amended. Prior to February 7, 2021, pursuant to 38 C.F.R. § 4.71a, disabilities evaluated under Diagnostic Code 5242 may be rated either under the General Formula for Diseases and Injuries of the Spine (General Formula) 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 under 38 C.F.R. § 4.25. After February 7, 2021, Diagnostic Code 5243 for IVDS is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise Diagnostic Code 5242 is assigned for all other disc diagnoses. Where the rating criteria is amended during the course of an appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991) (holding that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should and will apply unless Congress provides otherwise or permits the Secretary to do otherwise)). Under the General Rating Formula, a 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is 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 where forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. Lastly, a 100 rating is warranted where there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Notes following the General Rating Formula provide further guidance in rating diseases or injuries of the spine. Note 1 specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note 2 states that, 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 provides that in exceptional cases, an examiner may state that because of age, body habitus, neurological disease, or other factors not the result of disease or injury of the spine, the range of motion of spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note 2. Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as 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. Comparatively, under the formula for rating IVDS, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 to the formula for rating IVDS based on incapacitating episodes defines an incapacitating episode as “a period of acute signs and symptoms due to [IVDS] that requires bed rest prescribed by a physician and treatment by a physician.” Finally, the Board recognizes that, in some circumstances, it must consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination when deciding an appropriate rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The Veteran was afforded a VA examination for his lumbar spine disability in November 2015. During this examination, the examiner conducted range of motion testing and noted that painful motion was noted during testing of forward flexion of the thoracolumbar spine. However, in a May 2019 decision, the Board found that the examiner did not indicate when pain first began during this movement. The Board noted that to appropriately assign a rating for the Veteran’s lumbar spine disability, the Board must consider functional loss due to pain, weakness, excess fatigability, and incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59. As the November 2015 VA examiner did not record where pain first began during range of motion testing, the Board found that the November 2015 VA examination was inadequate for adjudicative purposes. Accordingly, the Board remanded this issue so that the Veteran could be afforded a new VA examination. In directing the AOJ to provide the Veteran another VA thoracolumbar spine conditions examination on remand, the Board noted that “[if] objective evidence of painful motion [was]present during range of motion testing, the clinician should indicate, in terms of degrees, where painful motion first began.” Pursuant to the May 2019 Board remand, the Veteran was again afforded a VA examination for his lumbar spine disability in August 2019. Pain and weakness caused functional loss with repeated use over a period of time. The examiner indicated that this functional loss resulted in forward flexion to 45 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees each, and right and left lateral rotation to 15 degrees each. On this occasion, the examiner indicated that painful motion was observed during all tested range of motion movements. However, once again, the examiner did not note, in terms of degrees, where painful motion first began. Accordingly, in April 2020, the Board found the July 2019 examination to be inadequate for adjudicative purposes and remanded for the provision of an additional, substantially compliant VA examination. Pursuant to the April 2020 remand, the Veteran was afforded another VA thoracolumbar spine conditions examination in October 2020. The examiner diagnosed the Veteran with degenerative arthritis of the lumbar spine. The Veteran reported that he could not stand for extended periods of time and was unable to perform daily activities due to constant low back pain. The Veteran reported flare ups that occurred with activity, lasted for days, and were relieved with rest. The examiner noted that the Veteran’s pain and inability to stand for long periods of time resulted in functional loss. The examiner noted that the Veteran’s forward flexion was limited to 60 degrees during initial range of motion, with evidence of pain with weight-bearing and functional loss with walking. The Veteran’s forward flexion was limited to 55 degrees with repetitive use, repeated use over time, and flare-ups. He also had extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation to 15 degrees each. The examiner indicated that pain and lack of endurance significantly limited functional ability with repeated use over a period of time and during flare ups. The Veteran did not have guarding, muscle spasm, or muscle atrophy. The examiner determined that the Veteran had negative straight leg raising and no signs of radicular pain or radiculopathy. The examiner also determined that the Veteran did not have ankylosis or IVDS of the thoracolumbar spine. As requested by the April 2020 remand, the examiner also noted that the Veteran had objective evidence of pain with passive range of motion and non-weight-bearing of the thoracolumbar spine. The examiner noted that the Veteran had long-term thoracolumbar pain which limited how long he could walk or stand. The Veteran’s painful motion first began at 60 degrees during forward flexion. The examiner indicated that the Veteran’s lumbar spine disability prevented him from carrying more than 20 pounds and prevented prolonged sitting or standing. The examiner also noted that the Veteran’s flare-ups occurred daily with walking and standing, lasted hours at a time, and were relieved by rest. Based on review of the foregoing, the Board finds that throughout the pendency of the appeal the disability picture for the Veteran’s lumbar spine disability most closely approximated the criteria for a 20 percent rating. He never had forward flexion to 30 degrees or less; never had ankylosis; and did not have IVDS. In finding that a rating higher than 20 percent is not warranted, the Board has considered the Veteran’s descriptions of his back symptoms, including his reports of pain, weakness, and limited mobility, both during medical evaluations and in correspondence he has submitted to VA. It acknowledges that his symptoms of pain, stiffness, and decreased range of motion limited his activities overall. However, the evidence does not show that pain, weakness, fatigue, muscle spasms, or incoordination caused further functional loss that more nearly approximates forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. To the extent he argues his symptomatology is more severe, his statements must be weighed against the other evidence of record. Here, the examination findings of trained health professionals, which documented no evidence of ankylosis or IVDS, are of greater probative weight than the Veteran’s more general lay assertions. Additionally, the Board has also considered whether evaluating the Veteran’s disability under the Formula for Rating IVDS based on Incapacitating Episodes (“IVDS Formula”) would be more beneficial to him. However, a note to the IVDS Formula defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, IVDS Formula, Note 1. The record does not indicate, nor does the Veteran assert, that he was prescribed bed rest by a physician at any point, thereby by precluding application of the IVDS Formula. Consideration has been given to assigning separate compensable ratings for neurological impairment of the extremities or other neurological abnormalities related to the Veteran’s lumbar spine disability such as bowel or bladder incontinence. In this case, the Veteran has not endorsed, and the medical evidence does not reflect, that the Veteran has neurological abnormalities associated with his service-connected lumbar spine disability. REASONS FOR REMAND 1. The issue of service connection for a skin disorder other than jungle rot is remanded. The Board has previously remanded this issue for a new VA examination and medical opinions. The report of the October 2020 VA examination and medical opinion is inadequate, and remand is again necessary. The examiner determined that the Veteran’s tinea corporis was unrelated to herbicide agent exposure because there was no evidence of tinea corporis in service. In-service treatment for a disorder is not necessary for an award of service connection. See 38 C.F.R. § 3.303(d). The examiner also stated that pruritis was not caused by service because the Veteran did not have pruritis on the day of the VA examination. Again, this is not necessary for a grant of service connection because there is ample evidence of the treatment and diagnosis of pruritis in post-service medical records, including during the pendency of this claim. Lastly, the examiner concluded that rosacea and seborrheic dermatitis were not caused by service. To support his opinion, the examiner provided recitation of an abstract of an article in a medical journal but did not discuss how it applied to the Veteran. Specifically, the examiner did not address that abstract’s statement that “inconclusive evidence exists for an increased risk of other skin diseases in Vietnam veterans exposed to Agent Orange” and that they should be informed of uncertain data in those cases. 2. The issue of entitlement to TDIU is remanded. The Board finds that entitlement to TDIU is inextricably intertwined with the issue of service connection for a skin disorder other than jungle rot and it must be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Forward the Veteran’s claims file to a dermatologist who has not provided an opinion in this case, for a medical opinion regarding the nature and etiology of the Veteran’s skin disabilities, other than jungle rot and onychomycosis.  The entire claims file, including a copy of this remand, must be made available to and must be reviewed by the clinician. If the clinician determines that an examination is necessary, one should be scheduled. Thereafter, the clinician should address the following: (a.) For each of the following skin diagnoses of record, please state whether the disorder had its onset in, was caused by, or is otherwise related to service—including as due to exposure to herbicide agents in Vietnam: i. Rosacea; ii. Pruritis; iii. Seborrheic dermatitis; and iv. Tinea corporis. If no skin disability is present at the time of examination, the examiner must still provide an opinion as to the etiology of each of these disorders. (b.) For the condition of pruritis only, please state: i. Whether the disorder was caused by the Veteran’s service-connected diabetes mellitus. ii. Whether the disorder was aggravated by the Veteran’s service-connected diabetes mellitus. Jacqueline E. Miller Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.