Citation Nr: 21024789 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 13-31 963 DATE: April 26, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for osteoarthritis with residuals, compression fracture T10 and L2, is denied. REMANDED Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for headaches, to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for a left hip disability, to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disease or injury is remanded. FINDING OF FACT The Veteran’s osteoarthritis with residuals, compression fracture T10 and L2, is manifested by combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, with painful motion and no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or incapacitating episodes of IVDS. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for osteoarthritis with residuals, compression fracture T10 and L2, have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1974 to May 1976. These matters came before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2016, a hearing was held before the undersigned Veterans Law Judge (VLJ). The VLJ clarified the issues on appeal; clarified the concept of service connection and increased rating claims; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran's claim and inquired as to the existence of potential outstanding records. Thus, the actions of the VLJ comply with 38 C.F.R. § 3.103. The Board remanded the matters to the RO in March 2018. They have been returned to the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. This disability is rated 10 percent under DC 5237 pursuant to the General Rating Formula for Diseases and Injuries of the Spine at 38 C.F.R. § 4.71, with consideration of DC 5003 for degenerative arthritis, consistent with the current diagnosis of osteoarthritis with residuals, compression fracture T10 and L2 identified in the most recent VA examination. The 10 percent rating has been in effect since May 22, 1976. A disability which has been continuously rated at or above any evaluation for 20 or more years cannot be reduced except upon a showing that such rating was based on fraud. The evaluation of this disability is protected under this provision of the law. 38 C.F.R. § 3.951. Higher ratings available under the General Formula include a 20 percent rating, warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, 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 rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, a 100 percent rating for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237 (the General Rating Formula for Diseases and Injuries of the Spine is used for conditions which result in symptoms such as pain (with or without radiation), stiffness, or aching of the area of the spine affected by residuals of injury or disease). VA regulations define normal range of motion of the lumbar spine as flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees, and rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Entitlement to a disability rating in excess of 10 percent for osteoarthritis with residuals, compression fracture T10 and L2, is denied. Initially, the Board notes that there are no associated objective neurological abnormalities at any time throughout the period on appeal, nor is there any ankylosis of the spine or intervertebral disc syndrome (IVDS) and thus no incapacitating episodes of IVDS. For the following reasons, the preponderance of the evidence is against a rating in excess of 10 percent for the osteoarthritis with residuals, compression fracture T10 and L2. This claim was remanded for an examination to assess current manifestations of the disability based on the Veteran’s hearing testimony of worsening. The prior most recent VA examination for this disability was in October 2011. He testified in 2016 that he began pain stimulator treatment as well as use of a cane for assistance with balance. His claim for increased rating for this disability was filed in August 2011. VA examination pursuant to the Board remand resulted in the recharacterization of the disability as osteoarthritis with residuals, compression fracture T10 and L2, whereas previously it was residuals, compression fracture T10 and L2. In pertinent part, the October 2011 VA examination reflects complaints of chronic lower back pain. Physical examination revealed no evidence of postural or muscle abnormality. Range of motion was 70 degrees of flexion without pain, 20 degrees of extension without pain, 20 degrees of right lateral flexion without pain, 20 degrees of left lateral flexion without pain, 20 degrees of right rotation without pain, and 20 degrees of left rotation without pain. There was no evidence of increased pain, fatigability, lack of endurance, or incoordination with repeated motion. There was no reflex, sensory, or motor defects involving the lower extremities. The examiner diagnosed fractured vertebra, T-10 and L2. VA Outpatient treatment records around the time of the 2011 exam showed continued treatment for lower back pain in the form of medication management, facet injections, and epidural blocks. Non-VA outpatient treatment reports show treatment for complaints of lower back pain with occasional radiation into the lower extremities. MRI conducted in June 2010 revealed facet arthroplasty at L2-3 with mild disc bulging. Diagnosis provided was lumbar disc bulge with protrusion. Social Security Administration (SSA) disability claim related records are in the claims folder and reflect that he was found to be disabled by that agency’s rules based on osteoarthritis and back disorders in December 2007. He has had continued treatment through VA and non-VA sources for chronic back pain. The VA examination conduced pursuant to the Board remand was accomplished in July 2020 by an examiner who interviewed the Veteran and reviewed the claims folder. The pertinent diagnoses were degenerative arthritis of the spine from 2008 and vertebral fracture from 1974. The Veteran stated that in 1974 he went hunting while in service when he fell off a cliff and broke his back. His current symptoms were back pain at all times, muscle spasm and inability to bend over. He takes Lortab. He reported no flare-ups. Forward flexion was to 50 degrees, extension to 20 degrees, bilateral flexion to 20 degrees, and bilateral rotation to 20 degrees. Pain was noted on exam but does not result in/cause functional loss. There was objective evidence of localized tenderness or pain on palpation of the low back. There was no evidence of pain with weight bearing. There was no additional loss of range of motion on repetitive use. Pain, weakness, fatigability or incoordination does not significantly limit functional ability with repeated use over a period of time. While there was no guarding, there was muscle spasm but not resulting in abnormal gait or abnormal spinal contour. The low back disorder interfered with sitting and standing as well as laying down. Reflex and sensory were normal. There was no ankylosis. Assistive devices noted included a cane used constantly for the hip fracture as well as the low back residuals. His inability to sit and stand for long period of time were predicted to impact his ability to work. The examiner noted that there was the history of mild functional limitation with development of lumbar spondylosis/bulge at L2 -L3. The new diagnosis of degenerative arthritis is an additional condition directly due to or related to the service connected diagnosis (i.e. a progression). An addendum dated in November 2020 reflects that the Veteran’s lumbar arthritis is at least as likely than not due to or the result of fractured vertebra T-10 and L2 but the bilateral hip condition is due to avascular necrosis of hip diagnosed in 2004 and not related to the back injury in 1974. The examiner explained that the Veteran's limited range of motion as noted on the examination is due to the bilateral hip condition. The examiner explained that the Veteran is status post left total hip replacement in June 2004 and right total hip replacement in 2005 due to avascular necrosis which is most often cause due to injury to blood supply and to corticosteroid use. The Veteran's bilateral hip condition was due to avascular necrosis of hip 3 decades after the Veteran's original diagnosis of fractured vertebra at T10 and L2 lumbar which was described as resolved as 1975. The Veteran has since underwent right total hip replacement and his limited range of motion is most likely due to residual from the hip condition and not related to the back injury in 1974. Based on the above opinion from the November 2020 VA examiner, the preponderance of the evidence is against finding that the current limitation of motion, most notably forward flexion limited to 50 degrees, is attributable to anything other than the hip condition. Thus, it is not attributable to the low back disability. The November 2020 medical opinion of the VA physician is well-supported and uncontroverted by any other medical opinion evidence on this point. See 38 C.F.R. § 4.14. It is more probative than the lay opinion of the Veteran on this matter requiring medical expertise. Thus, the current back disorder is not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Here, we emphasize that the reported muscle spasm was specifically found to not to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Also, there was no guarding. VA and non-VA treatment records are not inconsistent with these findings. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). As required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint. Correia v. MacDonald, 28 Vet. App. 158 (2016). See DeLuca. This was accomplished in the 2020 examination. The Veteran described his pain of the thoracolumbar spine as noted above, and the functional impact described does not warrant a higher rating based on the current record, and it is encompassed in the current rating. Again, we note that the limited movement has been clearly attributed to the severe hip issues as opposed to the low back disorder. The effect of the back pain on function must be discussed; as he clearly meets no objective criteria for a rating in excess of 10 percent for this disability for the period. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. Here, we find that the effect of pain on function has been clearly and adequately addressed in the 2020 examination and that the actual limitation fits squarely within the 10 percent rating for that time period. The preponderance of the evidence is against a rating in excess of 10 percent throughout the appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007). While we note that there have been changes to the Schedule of Ratings for the Musculoskeletal System effective February 7, 2021, these changes would not result in any higher ratings for this disability. The relevant criteria, the General Rating Formula for Diseases and Injuries of the Spine remained substantively unchanged with regard to the specific disability in this case.   REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected disease or injury is remanded. 2. Entitlement to service connection for headaches, to include as secondary to service-connected disease or injury is remanded. 3. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disease or injury is remanded. 4. Entitlement to service connection for a left hip disability, to include as secondary to service-connected disease or injury is remanded. 5. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disease or injury is remanded. These claims were remanded by the Board in March 2018 primarily to obtain VA examination and etiology opinions, supported by adequate rationale, including on whether these were aggravated by the back disorder now-characterized as service-connected osteoarthritis with residuals, compression fracture T10 and L2. The Veteran’s attorney argues in January 2021 that the VA opinions obtained in July and November 2020 are inadequate in their present state on this matter. We agree. As to aggravation, the Veteran’s attorney points out that the VA examiner provided the same verbatim rationale listed under her opinion for direct service connection. Moreover, the attorney points out that while the examiner identified lumbar arthritis as caused by the compression fracture in November 2020, it is unclear whether the arthritis was considered when rendering the opinions as to aggravation in July 2020. We do not find there to be an opinion as to aggravation supported by a complete rationale. We also note that the AOJ coded the arthritis as 5003 rather than traumatic, 5010. Under the circumstances, an addendum medical opinion should be obtained. The matters are REMANDED for the following actions: 1. Return the claim to the examiner who authored the July 2020 and November 2020 VA examination reports, or an appropriate substitute clinician, for an addendum opinion regarding the nature and likely etiology of his cervical spine, headache, right hip, left hip and ED disabilities. The claims file, including a copy of this REMAND, must be made available to the examiner for review. The examiner should address whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has cervical spine disability, headache disability, left hip, right hip or ED disabilities that are caused or aggravated (i.e., permanently worsened) by his service-connected disability now characterized as osteoarthritis with residuals, compression fracture T10 and L2. If the examiner finds that the cervical spine disability is aggravated by the service-connected disability, then he/she should quantify the degree of aggravation, if possible.   2. The AOJ should consider whether the service connected disease is correctly coded under Code 5003. If correctly under Code 5003, the AOJ must consider whether there are subsequent manifestations of the same disease process in other locations. We refer the AOJ to 38 U.S.C. § 1101; 38 C.F.R. § 3.303 and the M21-1 provisions addressing arthritis. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.