Citation Nr: 21022750 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-53 973 DATE: April 19, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected degenerative arthritis and intervertebral disc syndrome (IVDS) of the thoracolumbar spine prior to September 21, 2020 is denied. Entitlement to a disability rating in excess of 20 percent for service-connected degenerative arthritis and IVDS of the thoracolumbar spine from September 21, 2020 is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD), claimed as acid reflux, is granted. Entitlement to service connection for hypertension is granted. FINDINGS OF FACT 1. The most probative evidence of record does not reach the level of equipoise as to whether, prior to September 21, 2020, the Veteran’s degenerative arthritis and IVDS of the thoracolumbar spine manifested in forward flexion limited to greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine limited to 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. 2. The most probative evidence of record does not reach the level of equipoise as to whether, from September 21, 2020, the Veteran’s degenerative arthritis and IVDS of the thoracolumbar spine manifested in limitation of forward flexion to 30 degrees or less or in favorable ankylosis of the entire thoracolumbar spine. 3. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s GERD was at least as likely as not incurred while on active duty military service. 4. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s hypertension is at least as likely as not etiologically related to his active duty military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for service-connected degenerative arthritis and IVDS of the thoracolumbar spine prior to September 21, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243. 2. The criteria for entitlement to a disability rating in excess of 20 percent for service-connected degenerative arthritis and IVDS of the thoracolumbar spine from September 21, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for GERD have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1991 to February 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The matters were previously before the Board in January 2020, at which time the Board remanded the claims to the agency of original jurisdiction (AOJ) for further development. The claims have now been returned to the Board. The Board finds that there has been substantial compliance with its January 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As an initial matter, the Board observes that the Veteran currently has two additional issues on appeal in the legacy appeals system that are not addressed in this decision. Because the Veteran’s representative requested a hearing before the Board with respect to the Veteran’s claims for entitlement to service connection for a cardiac condition and for a temporary total disability rating for convalescence following an October 2017 cardiac procedure, the Board will offer the Veteran and his representative the opportunity to testify at a hearing before rendering a decision on the merits of the appeal. Criteria for Evaluating Musculoskeletal Disabilities Disability evaluations are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt that may remain is to be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when assigning a disability evaluation. See 38 C.F.R. § 4.1; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be “staged.” Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating any musculoskeletal disability based upon range of motion, consideration is given to the degree of any additional limitation of motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated, involving such factors as painful motion, weakness, incoordination, fatigability, etc., particularly during times when these symptoms “flare up,” assuming these factors are not already contemplated in the governing rating criteria. Id.; see also 38 C.F.R. §§ 4.40, 4.45, and 4.59. Disabilities of the spine, including lumbosacral strain and degenerative disc disease, are rated under the General Rating Formula for Diseases and Injuries of the Spine, 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 an injury or disease. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides that a 10 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; for a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or for vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Code 5242. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; for a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or for 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 for favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Notably, normal ranges of motion of the thoracolumbar spine are flexion from 0 degrees to 90 degrees, extension from 0 degrees to 30 degrees, lateral flexion from 0 degrees to 30 degrees bilaterally, and lateral rotation from 0 degrees to 30 degrees bilaterally. 38 C.F.R. § 4.71, Plate V; see also 38 C.F.R. § 4.71, General Rating Formula for Diseases and Injuries of the Spine, Note 2. An alternative Formula for Rating is available for intervertebral disc syndrome (IVDS) based upon incapacitating episodes. A 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the last 12 months of the applicable rating period. 38 C.F.R. § 4.71a, Code 5243. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the last 12 months of the applicable rating period. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the last 12 months of the applicable rating period. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the last 12 months of the applicable rating period. 1. Entitlement to a disability rating in excess of 10 percent for service-connected degenerative arthritis and IVDS of the thoracolumbar spine prior to September 21, 2020 The Veteran asserts that the severity of his service-connected degenerative arthritis and IVDS warrants a disability rating in excess of 10 percent prior to September 21, 2020. See, e.g., VA Form 9, Appeal to Board of Veterans’ Appeals, dated October 31, 2016. The record reflects that the Veteran underwent a VA examination for his back disorders in June 2015. See VA examination dated June 24, 2015. At that time, a physician noted that the Veteran’s degenerative arthritis and IVDS caused abnormal range of motion of the thoracolumbar spine, manifested by forward flexion limited to 70 degrees; extension limited to 20 degrees, right lateral flexion limited to 20 degrees; left lateral flexion limited to 20 degrees; right lateral rotation limited to 25 degrees; and left lateral rotation limited to 25 degrees. There was no evidence of pain with weight bearing or of localized tenderness or pain on palpation of the soft tissue of the back. The medical report indicates that the Veteran was able to perform repetitive use testing and did not experience additional loss of function or range of motion after three repetitions. Although the Veteran was not evaluated immediately after prolonged repetitive use over time, the clinician concluded that the Veteran’s statements regarding functional loss with repetitive use over time were medically consistent with the examination’s findings. Pain, weakness, fatigability or incoordination were not noted to significantly limit functional ability with repeated use of the thoracolumbar spine. The Veteran reported experiencing flare-ups of his back disabilities, which he described as causing more pain upon bending and less pain after resting his back. Although the Veteran’s back was not examined during a flare-up, the clinician observed that the Veteran’s statements concerning the severity of his flare-ups were medically consistent with the findings of the examination. The Veteran relayed that he did not experience pain, weakness, fatigability, or incoordination significantly limiting the functional ability of his back during flare-ups. The physician noted that the Veteran’s thoracolumbar spine did not exhibit guarding or muscle spasms; and ankylosis of the spine observed was not observed. The Veteran’s IVDS did not result in any episodes of acute signs or symptoms requiring bed rest prescribed by a physician in the twelve months prior to the date of examination. The Veteran reported using a back brace in order to achieve a normal mode of locomotion. The physician concluded that the Veteran’s back disorders did not cause functional impairment such that no effective function remains other than that which would be equally well-served by an amputation with prothesis. Diagnostic testing demonstrated that the Veteran’s arthritis of the thoracolumbar spine did not result in a thoracic vertebral fracture with loss of 50 percent or more of height. Finally, regarding functional impact, the clinician concluded that the Veteran’s back disabilities impacted his ability to work, insofar as they caused the Veteran difficulty bending and lifting. Turning to application of the appropriate rating criteria, the Board concludes that the evidence of record does not support finding that the Veteran’s degenerative arthritis and IVDS warrant a rating in excess of 10 percent disabling prior to September 21, 2020. Specifically, a rating of 20 percent is not warranted because the evidence of record, lay and medical, does not indicate that the Veteran’s back disability resulted either in limitation of motion of forward flexion of the thoracolumbar spine to greater than 30 degrees but less than 60 degrees; a 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. Additionally, the Veteran’s IVDS is not eligible for a rating under Diagnostic Code 5243 because the record indicates that, prior to September 21, 2020, he has not experienced incapacitating episodes requiring bed rest. The Veteran’s lay statements have been considered. However, disability ratings are determined by the application of the rating schedule which does not support a higher rating in this case even considering the lay evidence of record. The Board has also considered whether there is any other basis for granting further increased and/or additional ratings based on the evidence of record but has found none. In sum, as the most probative evidence does not reach the level of equipoise, the claim for entitlement to a disability rating in excess of 10 percent, prior to September 21, 2020, for the Veteran’s service-connected degenerative arthritis and IVDS may not be granted. 2. Entitlement to a disability rating in excess of 20 percent for service-connected degenerative arthritis and IVDS of the thoracolumbar spine from September 21, 2020 The Veteran contends that he is entitled to a disability rating in excess of 20 percent for his service-connected degenerative arthritis and IVDS from September 21, 2020, due to the severity of the disorders. Pursuant to the Board’s January 2020 remand, the Veteran was afforded another VA examination in September 2020 to assess the current severity of his service-connected degenerative arthritis and IVDS. See VA examination dated September 21, 2020. Upon conducting a physical evaluation of the Veteran, an examiner noted that the Veteran’s back disabilities resulted in range of motion limited to forward flexion of 50 degrees; extension of 10 degrees; right lateral flexion of 20 degrees; left lateral flexion of 20 degrees; right lateral rotation of 20 degrees; and left lateral rotation of 20 degrees. The range of motion testing for all aforementioned exercises caused pain and functional loss. The abnormal range of motion was noted to contribute to functional loss in that the Veteran reported difficulty squatting. The examiner further documented objective evidence of localized tenderness or pain on palpation of the soft tissue of the back manifesting in a moderate lumbosacral strain; and the examiner further found evidence of pain with weight bearing. At the time of examination, the Veteran was able to perform repetitive-use testing with at least repetitions, although such testing caused additional loss of function or range of motion after three repetitions. Following testing, the Veteran’s thoracolumbar spine range of motion was limited to forward flexion of 35 degrees; extension of 10 degrees; right lateral flexion of 10 degrees; left lateral flexion of 10 degrees; right lateral rotation of 15 degrees; and left lateral rotation of 15 degrees. The functional loss was caused by pain, fatigue, weakness, and lack of endurance. Although the Veteran was not evaluated immediately after prolonged repetitive use of the thoracolumbar spine over time, the examiner concluded that the Veteran’s statements regarding functional loss were medically consistent with his clinical findings. He further determined that pain, weakness, fatigability, or incoordination significantly limit the functional ability of the Veteran’s back following repeated use over time; specifically, pain, fatigue, and lack of endurance were noted to contribute to such functional loss. In describing the functional limitation in terms of range of motion, the examiner estimated that, upon repeated use over time, the Veteran’s back would result in limitation of range of motion to the same extent observed following the repetitive-use testing. The Veteran’s back was not evaluated during a flare-up, but the examiner reported that the Veteran’s statements regarding the functional loss during his flare-ups were medically consistent with the findings of the examination. Pain, fatigability, and lack of endurance were noted to significantly limit the Veteran’s functional ability with such flare-ups. The clinician estimated that the Veteran’s back manifested in limited range of motion to the same degrees as described above, following repetitive-use testing. Guarding and/or muscle spasms of the back were observed upon examination. Muscle spasms caused by IVDS were documented to result in abnormal gait or abnormal spine contour; and guarding caused by IVDS was documented to result in abnormal gait or abnormal spine contour. Additional factors noted to contribute to the Veteran’s back disability include less movement than normal, disturbance of locomotion, and interference with both sitting and standing. No ankylosis of the spine was observed. Although the examiner reported that the Veteran experiences IVDS, he noted that, for the twelve months prior to the examination, the Veteran had not suffered any episodes of acute signs and/or symptoms due to IVDS that required bed rest prescribed by a physician. The Veteran relayed to the examiner that his degenerative arthritis of the spine necessitates that he occasionally uses a back brace in order to achieve a normal mode of locomotion. Functional impact of an extremity such that no effective function remains other than that which would be equally well-served by an amputation with prothesis was not noted upon examination. Diagnostic testing confirmed the Veteran’s degenerative arthritis of the spine. Although the arthritis did not cause a thoracic vertebral facture with loss of 50 percent or more of height, the examiner remarked that August 2018 imaging indicated the presence of degenerative arthritis in the Veteran’s lumbar spine. The Veteran reported that the functional impact of his service-connected back disabilities results in “difficulty with prolonged sitting, squatting, and standing” as well as difficulty getting in and out of chairs and lifting objects. Finally, the examiner found objective evidence of pain when the Veteran’s back was used in non-weight bearing. The examiner noted that the Veteran’s passive range of motion was the same as his active range of motion. Turning to application of the appropriate rating criteria, the Board concludes that the evidence of record does not support finding that the Veteran’s thoracolumbar spine disabilities warrant a rating in excess of 20 percent disabling from September 21, 2020. Specifically, a rating of 40 percent is not warranted because the evidence does not indicate that the Veteran’s back disabilities result either in limitation of motion of forward flexion of the thoracolumbar spine to 30 degrees or less or in favorable ankylosis of the entire thoracolumbar spine. Additionally, the Veteran’s IVDS is not eligible for consideration under the rating criteria of Diagnostic Code 5243 because the record indicates that, in the twelve months prior to the date of examination, he did not experienced incapacitating episodes that required bed rest. The Veteran’s lay statements have been considered. However, disability ratings are determined by the application of the rating schedule which does not support a higher rating in this case. 38 C.F.R. § 4.2. The Board has also considered whether there is any other basis for granting further increased and/or additional ratings based on the evidence of record but has found none. In sum, as the most probative evidence does not reach the level of equipoise, the claim of entitlement to a disability rating in excess of 20 percent for the Veteran’s service-connected degenerative arthritis and IVDS of the thoracolumbar spine, from September 21, 2020, may not be granted. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits [...]”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). Criteria for Service Connection Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active duty service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Alternatively, a veteran can receive compensation via secondary service connection, which can be established when a disability is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To be awarded secondary service connection, there must be evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to service connection for GERD, claimed as acid reflux The Veteran asserts that his GERD, claimed as acid reflux, was incurred while on active duty service. See, e.g., Board Hearing Transcript dated August 9, 2019 at 11-12. He further states that he has experienced a continuity of symptomatology since separation from service. Id. After a review of the Veteran’s claims file, the Board finds that the evidence of record supports a grant of service connection for GERD. First, there is evidence of a current disability. The evidentiary record contains a diagnosis of GERD by multiple healthcare professionals. See, e.g., VA examination dated September 25, 2020. Furthermore, the Board finds that the Veteran’s lay statements regarding continuous gastrointestinal symptoms from active duty service to the present are sufficient evidence to demonstrate a continuity of symptomatology, as the Veteran is competent to attest to symptoms he has experienced firsthand when those symptoms are later supported by a medical diagnosis. See, e.g., Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Second, there is evidence of an in-service event, disease, or injury. The Veteran asserts that he experienced symptoms of the gastrointestinal condition in service; and a review of his service treatment records (STRs) confirm that he sought treatment for symptoms such as stomach cramps and diarrhea. See, e.g., Service Treatment Records dated July 24, 1991. Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s GERD is related to his service. In that regard, the law is clear. Pursuant to the “benefit-of-the-doubt” doctrine, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b). To the extent that there is evidence against the claim, the Veteran furnished VA with a private medical opinion in which a physician concluded that the Veteran’s GERD is related to his service, as demonstrated by the symptoms documented in his STRs. See private medical opinion dated January 5, 2021. Because the physician personally examined the Veteran and reviewed the Veteran’s relevant medical history, the Board finds the opinion to be probative. Accordingly, the Board finds that, with the benefit of the doubt resolved in the Veteran’s favor, a grant of service connection for GERD is warranted. 4. Entitlement to service connection for hypertension The Veteran contends that his hypertension was incurred in or caused by his military service, to include as secondary to his service-connected bronchial asthma. After a review of the Veteran’s claims file, the Board finds that the evidence of record supports a grant of service connection for hypertension. First, there is evidence of a current disability. Multiple healthcare providers have diagnosed the Veteran with hypertension; and the Veteran takes prescription medication for the condition. See, e.g., VA examination dated September 21, 2020. Second, there is evidence of an in-service event, disease, or injury. The Veteran’s STRs indicate multiple readings of elevated blood pressure throughout the Veteran’s time on active duty service. See, e.g., Service Treatment Records dated August 19, 1991. As explained further below, such symptomatology is indicative of a cardiovascular disorder. Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s hypertension is related to his service. Again, the law is clear. Pursuant to the “benefit-of-the-doubt” doctrine, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b). To the extent that there is evidence against the claim, the record also contains a positive nexus opinion for service connection on a direct basis. In a January 2021 medical opinion, a physician opined that the Veteran’s hypertensive cardiovascular disease was more likely than not caused by “uncontrolled and prolonged elevation of blood pressure that started when [the Veteran] was in the U.S. Army.” See medical opinion dated January 5, 2021. The physician supported his opinion by a sound rationale and explained the association between demanding physical challenges such as those presented in the military, prolonged elevated blood pressure, and the subsequent, eventual buildup of plaque in the cardiovascular system. The Board finds the positive nexus opinion to be particularly probative. Therefore, the Board finds that, with the benefit of the doubt resolved in the Veteran’s favor, entitlement to service connection for hypertension is warranted. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.