Citation Nr: 21022412 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 10-29 603 DATE: April 15, 2021 ORDER Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine prior to August 2, 2016 is denied. Entitlement to a rating in excess of 40 percent for degenerative lumbar arthritis with degenerative disc disease from October 14, 2019 is denied. Entitlement to an initial compensable rating for Wolff Parkinson White Syndrome is denied. REMANDED Entitlement to a rating in excess of 20 percent for degenerative lumbar arthritis with degenerative disc disease from August 2, 2016 to October 13, 2019 is remanded. FINDINGS OF FACT 1. Prior to August 2, 2016, the Veteran’s degenerative disc disease of the lumbar spine manifest by forward flexion of 70 degrees and overall range of motion of 220 degrees without evidence of ankylosis. 2. From October 14, 2019, the Veteran’s degenerative lumbar arthritis manifest by forward flexion of 15 degrees and overall range of motion of 60 degrees without evidence of ankylosis. 3. The Veteran’s Wolff Parkinson White Syndrome did not manifest with permanent atrial fibrillation or one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by ECG or Holter monitor. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine, prior to August 2, 2016, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003 (2020). 2. The criteria for entitlement to a rating in excess of 40 percent for degenerative lumbar arthritis with degenerative disc disease, from October 14, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2020). 3. The criteria for entitlement to an initial compensable rating for Wolff Parkinson White Syndrome are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.104, Diagnostic Code 7010 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1986 to July 1996. This July 2010 appeal comes before the Board of Veterans’ Appeals (Board) from a October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Atlanta, Georgia which granted a rating of 10 percent for the Veteran’s service-connected degenerative disc disease of the lumbar spine and a noncompensable rating for his Wolff Parkinson White Syndrome. The Board remanded the claim in June 2016 for additional development including a new VA examination and outstanding medical treatment records. The RO issued a November 2016 rating decision increasing the rating from 10 percent to 20 percent for degenerative lumbar arthritis with degenerative disc disease, effective August 2, 2016, and a November 2016 supplemental statement of case (SSOC) denying an initial compensable rating for WPWS. The Board remanded the claim again in January 2018 for new VA examinations on both issues. The RO issued a September 2018 supplemental statement of case (SSOC) denying a rating in excess of 20 percent for degenerative lumbar arthritis or an initial compensable rating for WPWS. The Board remanded the claim a third time in September 2018 due to an inadequate VA examination. The RO issued a May 2020 rating decision increasing the rating from 20 percent to 40 percent for degenerative lumbar arthritis with degenerative disc disease, effective October 14, 2019 and a May 2020 supplemental statement of case (SSOC) denying a rating in excess of 40 percent for degenerative lumbar arthritis or an initial compensable rating for WPWS. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the entire recorded history, and each disability must be considered from the viewpoint of the Veteran working or seeking work. 38 C.F.R. § 4.2. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all increased rating claims, staged ratings must be considered for the entire period on appeal. A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code(s). Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine prior to August 2, 2016 2. Entitlement to a rating in excess of 40 percent for degenerative lumbar arthritis with degenerative disc disease from October 14, 2019 The Veteran’s service-connected spinal condition, diagnosed as degenerative arthritis of the spine with degenerative disc disease, is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242 (see also DC 5003). Although the Veteran’s initial rating was under DC 5003, the rating criteria is the same as both DC 5003 and 5242 follow the General Rating Formula for Diseases and Injuries of the Spine. 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). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, diagnostic code 5242 was assigned for degenerative arthritis of the spine (see also DC 5003) and diagnostic code 5243 for intervertebral disc syndrome. As of February 7, 2021, under the amended criteria, diagnostic code 5242 is assigned for degenerative arthritis and degenerative disc disease (DDD) other than intervertebral disc syndrome (see also either DC 5003 or 5010). It also amends diagnostic code 5243 for intervertebral disc syndrome (IVDS) allowing the diagnostic code to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise diagnostic code 5242 must be used for all other disc diagnoses. Although the amended criteria for 5242 and 5243 separated DDD from IVDS, the rating formula under each diagnostic code was unchanged. Under Diagnostic Code 5003 and 5242, a 10 percent rating is assigned 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 assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. When evaluating musculoskeletal disabilities, the Board must also consider whether a higher disability evaluation is warranted 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 under any applicable diagnostic code pertaining to limitation of motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). a) Prior to August 2, 2016 The Veteran contends that he should be granted a higher rating for degenerative disc disease of the lumbar spine due to the severity of his symptoms. The Veteran states that the conditions cause him pain that has gotten worse over the last few years and affects his ability to sleep. During a July 2008 medical appointment, the Veteran reported back pain across his lower lumbar area that started several weeks prior without injury. See September 2008 VA Medical Treatment Records. A September 2008 MRI indicated advanced degenerative disc disease at L5-S1 in addition to disc herniation. Id. The Veteran reported taking over the counter medication to manage the pain. Id. During an October 2008 VA examination the Veteran was diagnosed with degenerative disc disease of the lumbar spine and showed forward flexion of the thoracolumbar spine of 70 degrees, extension to 30 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 30 degrees for a total range of motion of 220 degrees with both active and passive motion; painful motion did not further limit the Veteran’s range of motion. The Veteran was able to complete the repetitive-use testing without additional limitations to his range of motion. The Veteran denied flare-ups of his condition and the examiner stated he would be speculating to state whether pain, weakness and lack of endurance would cause a change in range of motion if there was a flare-up. There was no evidence of tenderness, muscle spasm and/or weakness and his gait was normal. The Veteran had normal muscle strength and a normal sensory examination. The VA examiner opined that the Veteran’s current spine condition was not related to his back injury in service. He reasoned Veteran had a documented back spasm which is an acute and self-limited condition. During an August 2010 medical appointment, the Veteran report he was in constant back pain that would worsen with lifting or standing for long period of time. See September 2010 VA Medical Treatment Records. An August 2010 MRI indicated persistent degenerative disc disease at L5-S1. See August 2019 VA Medical Treatment Records. The Veteran had normal range of motion of the lumbosacral spine from flexion to extension. Id. The Board finds that, prior to August 2, 2016, the Veteran had forward flexion of the thoracolumbar spine of 70 degrees and a combined range of motion of 220 degrees, but there was no evidence of ankylosis. The Veteran denied experiencing flare-ups and additional functional loss was not reported on repetitive use testing. Applying the most favorable rating criteria under diagnostic code 5003, a rating in excess of 10 percent for degenerative disc disease of the lumbar spine is not warranted. 38 C.F.R. § 4.71a. For the foregoing reasons, the preponderance of the evidence is against the claim for a rating in excess of 10 percent for degenerative disc disease of the lumbar spine prior to August 2, 2016. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. b) From October 14, 2019 The Veteran contends that his back condition has continued to worsen and that he is in constant pain. He states that his flare-ups feel like lightening and that he needs to lie down when they occur. During an August 2016 VA examination the Veteran reported worsening back pain and numbness and tingling in his legs. The Veteran was diagnosed with degenerative arthritis of the lumbar spine and showed forward flexion of the thoracolumbar spine of 60 degrees, extension to 20 degrees, bilateral lateral flexion to 25 degrees, and bilateral lateral rotation to 25 degrees for a total range of motion of 180 degrees; painful motion did not further limit the Veteran’s range of motion. The Veteran was able to complete the repetitive-use testing without additional limitations to his range of motion. The Veteran reported having daily flare-ups, however the examiner was unable to provide an estimate of functional loss without speculation. There was no evidence of muscle spasm or guarding. The Veteran had normal reflexes and muscle strength of the right lower extremity and decreased reflexes and muscle strength in the left lower extremity. The VA examiner opined that the Veteran’s spinal condition did not impact his ability to work. During an April 2018 VA examination the Veteran reported that his back pain had gotten worse and he had quit his job in April 2017 due to his condition. The Veteran showed forward flexion of the thoracolumbar spine of 45 degrees, extension to 15 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 20 degrees for a total range of motion of 140 degrees; painful motion was noted with all motion but did not further limit the Veteran’s range of motion. The examiner indicated pain, fatigue and weakness limited functional ability with repeated use resulting forward flexion of the thoracolumbar spine of 40 degrees, extension to 15 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 20 degrees for a total range of motion of 135 degrees. There was evidence of pain with weight bearing and non-weight bearing, but no additional limitation of motion was noted. The Veteran reported having daily flare-ups, but the examiner was unable to provide an estimate of functional loss without speculation. There was evidence of muscle spasm and guarding resulting in abnormal gait and/or spinal contour. The Veteran had decreased muscle strength, reflexes, and sensory testing, however there was no evidence of ankylosis. The VA examiner opined that the Veteran’s spine condition would impact his ability to work due to limitations with lifting, carrying, or moving heavy objects. Further, the Veteran could not stand for long periods of time or walk a long distance. Id. The Board remand the case in September 2018 for a new VA examination after finding the prior examination was inadequate for failing to provide estimates on functional loss with flare-ups and repetitive use. During an October 2019 VA examination the Veteran reported constant low back pain that had gotten worse over the years and that he used prescription medication to manage. He stated that he worked as a radiologic technician but left his employment in April 2017 because he could no longer stand for long periods of time and that made him unable to continue working. The Veteran was diagnosed with degenerative arthritis of the spine and spinal stenosis and showed forward flexion of the thoracolumbar spine of 15 degrees, extension to 5 degrees, bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 10 degrees for a total range of motion of 60 degrees and pain was noted with all motion. The Veteran was able to complete the repetitive-use testing without additional limitations to his range of motion. The Veteran reported having flare-ups at least 2 times per week, however the examiner indicated that pain, weakness, and fatigue did not limited functional ability during flare ups. There was evidence of muscle spasm, but it did not cause abnormal gait or spinal contour. The Veteran had normal reflexes and a normal sensory examination and there was no evidence of ankylosis or IVDS. A July 2018 MRI of the lumbar spine indicated congenital lumbar spinal stenosis with moderate superimposed degenerative changes and severe spinal canal stenosis and foraminal narrowing at the lumbosacral junction. The VA examiner opined the Veteran’s spine had continued to degenerate, less space was available for the spinal cord, and therefore he had spinal stenosis which was a progression of the prior spinal diagnosis. The examiner stated the Veteran’s condition would impact his ability to work because degenerative arthritis of the lumbar spine causes pain and difficulty of movement and spinal stenosis causes pain and numbness of the extremities. The Veteran is unable to fully bend over, twist side to side, or lift heavy objects. Id. In an April 2020 VA addendum opinion, the VA examiner opined that pain, weakness, and fatigue did not significantly limit functional ability with repeated use over time or during flare-ups. The Board finds that during the period of appeal the Veteran had forward flexion of the thoracolumbar spine of 15 degrees and a combined range of motion of 60 degrees. The Veteran had functional loss due to limitations of motion and pain but there was no evidence of ankylosis. The currently assigned 40 percent rating is the maximum for limitation of motion of the lumbar spine. Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston, 10 Vet. App. at 85. Applying the most favorable rating criteria under diagnostic code 5242, a rating in excess of 40 percent for degenerative arthritis of the spine is not warranted. 38 C.F.R. § 4.71a. For the foregoing reasons, the preponderance of the evidence is against the claim for a rating in excess of 40 percent for degenerative arthritis of the spine with degenerative disc disease. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 3. Entitlement to an initial compensable rating for Wolff Parkinson White Syndrome The Veteran contends that he should be granted an initial compensable rating for his Wolff Parkinson White Syndrome (WPWS) due to his current symptoms of rapid heartbeat, dizziness, chest palpitations and periods of atrial fibrillation. The Veteran’s service-connected heart condition, diagnosed as WPWS, is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7010, for supraventricular arrhythmias. Under Diagnostic Code 7010, a 10 percent rating is assigned for permanent atrial fibrillation (lone atrial fibrillation), or; one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by ECG or Holter monitor. A 30 percent rating is assigned for paroxysmal atrial fibrillation, or other supraventricular tachycardia, with more than four episodes per year documented by electrocardiogram or Holter monitor. The Veteran was diagnosed with WPWS after an EKG in 1989 during active service. During his October 2008 VA examination, the Veteran denied having any cardiac event during service. The Veteran denied hypertension, myocardial infraction, palpitations, tachycardia, congestive heart failure, passing out, or stroke. The Veteran reported chest pain and pressure, lightheadedness, and dizziness. Id. The Veteran’s EKG during his examination indicated a normal sinus rhythm and there was no evidence of WPWS. The examiner stated that the Veteran’s WPWS was an incidental finding during his 1989 EKG as there was no corresponding cardiac event including palpitation or tachycardia. The examiner opined the Veteran’s WPWS was asymptomatic. Id. During a May 2012 medical appointment, the Veteran reported having palpitations and his physician ordered an event monitor to evaluate his WPWS. See July 2012 VA Medical Treatment Records. The Veteran wore the monitor for 30 days, however it only showed sinus tachycardia without any arrhythmias during that time. Id. During a July 2015 medical appointment, the Veteran reported that he was not doing anything to manage or treat his WPWS and denied tachycardia. See October 2015 VA Medical Treatment Records. During an April 2018 VA examination, the Veteran reported palpitations and lightheadedness now and then, but denied hypertension, myocardial infraction, congestive heart failure, passing out, or stroke. The examiner confirmed the Veteran did not have a myocardial infraction, congestive heart failure, heart valve condition, infectious heart condition, or pericardial adhesions, and medication was not required to control the Veteran’s heart condition. The examiner indicated the Veteran had intermittent supraventricular tachycardia documented by EKG. Id. The examiner also reported the Veteran’s interview based METs test in March 2018 indicated a workload greater than 5 METs but less than 7 METs resulted in dyspnea, fatigue and dizziness. The examiner did note that the METs estimation was subjective and also affected other body systems including the lungs, heart and musculoskeletal systems. Id. Although the April 2018 VA examiner indicated the Veteran had intermittent supraventricular tachycardia documented by EKG, there is no evidence of an EKG completed during, or prior to, the examination. Further, in July 2012, the Veteran wore a 30-day event monitor which was negative for any arrhythmias. There is no other evidence of record that supports a finding that the Veteran had documented intermittent supraventricular tachycardia. The Board finds that this entry in the 2018 VA examination report is a typographical error which is not referenced by any other comment in the report. The Board also finds the 2018 VA examination report adequate under the duty to assist as all parts which required the examiner’s judgment are correct and the error occurring only in the historical review and is easily remedied by reference to the record. The Board finds that the preponderance of the evidence demonstrates that the Veteran did not have permanent atrial fibrillation (lone atrial fibrillation), or one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by ECG or Holter monitor during the period on appeal. Therefore, applying the most favorable rating criteria under diagnostic code 7010, an initial compensable rating for WPWS is not warranted. 38 C.F.R. § 4.104. For the foregoing reasons, the preponderance of the evidence is against the claim for an initial compensable rating for WPWS. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 4. Entitlement to a rating in excess of 20 percent for degenerative lumbar arthritis with degenerative disc disease from August 2, 2016 to October 13, 2019 In a June 2016 decision, the Board remanded the case for a new VA examination after the Veteran reported that his spinal condition had worsened. The Veteran was afforded a new VA examination in August 2016. VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59 (2020). The spine has no opposite joint. The Board remanded the case again in January 2018 because the August 2016 VA examination failed to provide the joint testing as required. Correia, 28 Vet. App. 158 (2016). The Veteran underwent another VA examination for his spinal condition in April 2018. The Board remanded the case in September 2018 after finding the April 2018 examination was inadequate for failing to provide functional loss in terms of estimates of limited motion with repetitive use and flare-ups. Although the Veteran was afforded an October 2019 VA examination, the examiner indicated his condition had deteriorated and diagnosed him with an additional spinal condition. Therefore, the October 2019 VA examination is not an accurate depiction of the Veteran’s condition prior to October 14, 2019. Presently, there is insufficient medical evidence in the claim file necessary for the Board to adjudicate this issue prior to October 14, 2019. Therefore, remand for a retrospective medical opinion for the August 2016 and April 2018 VA examinations is necessary for the purpose of ascertaining the severity and manifestations of the Veteran’s service-connected lumbar spine disability. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a qualified clinician regarding the severity of the Veteran’s lumbar spine disability from August 2, 2016, and prior to October 14, 2019. The examiner should provide a full description of the disability. The examiner should review the August 2016 and April 2018 VA examinations of the lumbar spine. The examiner is asked to provide a retrospective opinion and comment as to whether the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing and the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups can be estimated for the period from August 2, 2016 to October 13, 2019. If it is not possible to provide such an estimate, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Aubee, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.