Citation Nr: 21023191 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-28 730A DATE: April 20, 2021 ORDER An initial rating higher than 10 percent for a lumbar spine disability prior to August 5, 2016, is denied. An initial compensable rating for hiatal hernia and gastroesophageal reflux disease (GERD) is denied prior to August 5, 2016. A 10 percent rating, and no higher, is granted for hiatal hernia and GERD effective August 5, 2016. REMANDED An initial compensable rating for esophageal ring, status post multiple dilations, is remanded. FINDINGS OF FACT 1. The Veteran has reported treatment for spasms involving his lumbar spine disability prior to August 5, 2016, but there is no subjective or objective evidence that the spasms have resulted in an abnormal gait or abnormal spinal contour; there is no evidence of motion limited to at least 60 degrees or to at least 120 degrees; and there is no evidence intervertebral disc syndrome (IVDS) results in incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 2. The Veteran did not have any signs and symptoms attributable to hiatal hernia and/or GERD at the time of a November 2011 pre-discharge VA examination and the symptoms reported prior to August 5, 2016, do not more nearly approximate the criteria for a compensable rating under Diagnostic Code 7346. 3. During the August 5, 2016, VA examination, current symptoms attributed to the hiatal hernia and GERD included persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbance; dysphagia was found to be secondary to his esophageal stricture for which an esophageal ring was placed. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 10 percent for a lumbar spine disability prior to August 5, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. 2. The criteria for an initial compensable rating for hiatal hernia and GERD have not been met prior to August 5, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7346. 3. The criteria for a 10 percent rating, and no higher, for hiatal hernia and GERD have been met as of August 5, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from June 1985 to August 1986 and from May 1990 to December 2011. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for a lumbar spine disability (10 percent rating), hiatal hernia and GERD (zero percent rating), and esophageal ring, status post multiple dilations (zero percent rating), all effective January 2, 2012. The effective dates were subsequently amended to January 1, 2012, in a January 2020 rating decision. An April 2018 rating decision assigned a 40 percent rating for the lumbar spine disability effective August 5, 2016. The transcript of the Veteran’s September 2018 videoconference hearing before the undersigned Veterans Law Judge indicates that he is satisfied with the 40 percent rating for his lumbar spine disability but wants an initial rating higher than 10 percent prior to August 5, 2016. The issue has been amended accordingly. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The Board remanded the claims in June 2019. It also remanded claims for service connection for disabilities affecting the right and left knees, which were granted in an August 2020 rating decision and are no longer before the Board on appeal. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. An initial rating higher than 10 percent for a lumbar spine disability prior to August 5, 2016 Service connection for the lumbar spine disability was granted in the June 2012 rating decision that is the subject of this appeal. A 10 percent rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5237, effective January 2, 2012. The RO clearly noted that the provisions of 38 C.F.R. §§ 4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca had been considered and applied under 38 C.F.R. § 4.59. As noted above, an April 2018 rating decision assigned a 40 percent rating for the lumbar spine disability effective August 5, 2016, and the Veteran is only appealing the issue of whether he is entitled to an initial rating higher than 10 percent for the lumbar spine disability prior to August 5, 2016. Also noted above, the effective date assigned for the 10 percent rating was subsequently amended to January 1, 2012, in a January 2020 rating decision. Given the foregoing, the Board must determine whether the Veteran is entitled to an initial rating higher than 10 percent between January 1, 2012 and August 4, 2016. Disabilities of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they “are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.” 68 Fed. Reg. 51,454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1).   Ratings in excess of 10 percent pertinent to the lumbar spine are provided 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 (20 percent); forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); for unfavorable ankylosis of the entire thoracolumbar spine (50 percent); and for unfavorable ankylosis of the entire spine (100 percent). Id. For VA compensation purposes, unfavorable ankylosis is a condition in which 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. Id. at Note (5). Note (2) of the General Rating Formula provides 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. Alternatively, IVDS can be rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). This formula provides a 20 percent rating for IVDS with 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 for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). The rating criteria for the spine were amended on February 7, 2021. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to make clear that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242. The Veteran seeks an initial rating higher than 10 percent based on his assertion that he has had daily back problems since the L5-S1 microdiskectomy in 2007 that continue to this day. He asserts the in-service disc herniation was never fixed; that even after months of physical therapy the pain still travels down his left leg; and that he has had to have lidocaine injections and a cortisone epidural to stop spasms/pain. The Veteran has also reported that he can no longer run, stand or sit for extended periods. It is important to note at this juncture that the only pertinent medical evidence of record dated within the appeal period prior to August 5, 2016 is a November 2011 VA pre-discharge examination, which pre-dates the date on which service connection was established. The Veteran has denied VA treatment for his back. Since he submitted medical bills from NovaCare Rehabilitation dated between September 2010 and May 2013 (on which he handwrote that he was receiving physical therapy for his low back) and from Fox Chase Pain Management Associates, P.C. (on which he handwrote that he had lower back spasms in May 2013), the Board remanded this claim for the Veteran to provide the necessary release to obtain physical therapy records related from these providers. The Veteran did not respond to VA’s request for the necessary release, even though the actual records associated with this private treatment may have shown symptomatology on which to base a higher initial rating. In the absence of any VA or private records reflecting symptomatology and treatment related to the back disability, the only medical evidence on which the Board can rely to decide whether the Veteran is entitled to a higher initial rating are the pre-discharge VA examination. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). The preponderance of the evidence does not support the assignment of an initial rating higher than 10 percent for the lumbar spine disability at any time prior to August 5, 2016. To merit the assignment of the next highest (20 percent) rating provided under the General Rating Formula, the evidence must show that the Veteran had 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. The evidence in this case does not show any of these manifestations. Rather, the Veteran exhibited forward flexion to 90 degrees during the November 2011 pre-discharge examination and his combined thoracolumbar spine range of motion at that time was 240 degrees. The Board acknowledges the Veteran’s assertion that he was treated for back spasms and finds this assertion both competent and credible; minimal spasm was also objectively noted at the time of the November 2011 pre-discharge examination. However, the Veteran has not reported, and the available medical evidence does not show, that the spasms resulted in abnormal gait or abnormal spinal contour. Rather, gait was normal during the November 2011 pre-discharge examination even in the presence of minimal spasm. The assignment of an increased initial rating for the Veteran’s lumbar spine disability is also not warranted under the IVDS Formula at any time before August 5, 2016. This is so because there is no indication, and the Veteran has not reported, that any bed rest had been prescribed by a physician during the relevant timeframe to support a finding that there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during any 12-month period. Consideration has been given to any functional impairment and any effects of pain on functional abilities due to the Veteran’s service-connected lumbar spine disability prior to August 5, 2016. The Board acknowledges the Veteran’s subjective complaints related to functional loss and functional impairment made in written statements and during the November 2011 pre-discharge examination. The Board also acknowledges the objective evidence during that examination of pain with passive and active range of motion testing, minimal spasm, and minimal tenderness. In this case, however, the Board does not find any additional functional loss that is not contemplated by the currently assigned 10 percent rating. The Veteran has described additional motion loss or functional impairments but denied flare-ups during the November 2011 examination, and that examiner indicated that the Veteran was able to perform repetitive use testing without loss of motion due to pain, fatigue, weakness, or lack of endurance and that there was no additional loss of function on examination. Considering the foregoing, the Board finds that a rating higher than the 10 percent rating assigned for the Veteran’s lumbar spine disability is not warranted based on functional impairment prior to August 5, 2016. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. The Board also reiterates that the initial 10 percent rating was based on functional impairment due to pain. The Board has also considered whether the Veteran’s service-connected lumbar spine disability manifests any associated objective neurologic abnormalities at any time during the appeal period. However, the Veteran is already separately service connected for left lower extremity radiculopathy and the record does not reflect other neurological disabilities associated with the lumbar spine disability. The Veteran is also separately rated for a scar associated with this disability. In sum, the preponderance of the evidence supports the currently assigned 10 percent rating for the lumbar spine disability and the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. An initial compensable rating for hiatal hernia and GERD Service connection for hiatal hernia and GERD was established in the June 2012 rating decision that is the subject of this appeal. A noncompensable (zero percent) rating was assigned under 38 C.F.R. § 4.114, Diagnostic Code 7346, effective January 2, 2012. As noted above, the effective date assigned for the noncompensable rating was subsequently amended to January 1, 2012, in a January 2020 rating decision. Diagnostic Code 7346 provides the rating criteria for hiatal hernia. Compensable ratings are provided for hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity (10 percent); persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health (30 percent); and symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health (60 percent). The Veteran seeks an initial compensable rating based on his assertion that he continues to have trouble swallowing with pain, has been on 150 milligrams of Zantac since 1996, and was also taking 40 milligrams of Nexium. He testified that his symptoms included acid reflux and that the Nexium and Zantac had helped somewhat. He denied VA treatment for this disability. As noted in the Board’s June 2019 remand, the only pertinent medical evidence of record consists of the November 2011 and the August 2016 examination reports, and the claim was remanded to give the Veteran an opportunity to provide the names and addresses of all non-VA medical care providers who have treated his service-connected hiatal hernia and GERD disability. The Veteran did not respond to VA’s request, even though the actual records associated with any private treatment may have shown symptomatology on which to base a higher initial rating. In the absence of any VA or private records reflecting symptomatology and treatment related to the gastrointestinal disability, the only medical evidence on which the Board can rely to decide whether the Veteran is entitled to a higher initial rating are the VA examinations. See Wood, 1 Vet. App. at 193 (“The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). Upon review of the record, and after resolving all doubt in the Veteran’s favor, the Board finds that a 10 percent rating is warranted effective August 5, 2016, the date of the VA examination in which it was reported that the Veteran’s current symptoms associated with hiatal hernia and GERD included persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbance. These symptoms more nearly approximate the criteria for a 10 percent rating under Diagnostic Code 7346; a 30 percent rating is not warranted in the absence of evidence that the hiatal hernia and GERD is productive of considerable impairment of health, since the frequency of symptom recurrence noted at the time of the August 2016 examination was four or more per year with an average duration of symptom episodes of less than one day. The examiner also found the reported dysphagia to be secondary to his esophageal stricture for which an esophageal ring was placed. The preponderance of the evidence does not support the assignment of an initial compensable rating for the hiatal hernia and GERD prior to August 5, 2016. During the November 2011 pre-discharge examination, it was reported that the Veteran no longer had any signs and symptoms attributable to hiatal hernia or GERD and that his complaint of occasional difficulty swallowing food was because of his esophageal ring. While the Board acknowledges the Veteran’s subjective complaints of trouble swallowing with pain and minimal relief with medication made prior to August 5, 2016, there is no evidence of pyrosis, regurgitation, substernal or arm or shoulder pain, or any impairment of health. In other words, the symptoms reported prior to August 5, 2016, do not more nearly approximate the criteria for a compensable rating under Diagnostic Code 7346. In sum, the preponderance of the evidence supports the currently assigned noncompensable rating for hiatal hernia and GERD prior to August 5, 2016, and a 10 percent rating for hiatal hernia and GERD as of that date. REASONS FOR REMAND 3. An initial compensable rating for esophageal ring, status post multiple dilations, is remanded. This claim was remanded in June 2019 for the RO to issue a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). Since the action was not completed, another remand is needed.   The matters are REMANDED for the following action: Provide the Veteran a statement of the case with respect to the issue of entitlement to an initial compensable rating for esophageal ring, status post multiple dilations so that he may perfect the appeal by filing a timely substantive appeal. Thereafter, this issue is to be returned to the Board only if an adequate and timely substantive appeal is filed. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.