Citation Nr: 21025029 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-28 809 DATE: April 27, 2021 ORDER A disability rating in excess of 40 percent for degenerative disc disease (DDD), kyphoscoliosis with limited motion of the dorsal spine, is denied. REMANDED Entitlement to service connection for headaches, to include as secondary to lumbar and cervical spine disabilities, is remanded. Entitlement to an initial disability rating in excess of 10 percent for right hip strain (adduction) is remanded. Entitlement to an initial disability rating in excess of 10 percent for left hip strain (adduction) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.   FINDING OF FACT Throughout the entire appeal period, the Veteran’s DDD has been characterized by forward flexion of the thoracolumbar spine 30 degrees or less. It has not been characterized by unfavorable ankylosis of the entire thoracolumbar spine. He has never been prescribed bed rest. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for DDD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1989 to October 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2014 and August 2015 rating decisions by the Department of Veteran Affairs (VA) Regional Office (RO). In December 2014 and August 2015, the Veteran disagreed with these decisions. The Veteran was scheduled for a hearing in March 2019. However, he did not report for the hearing. He was then scheduled for a second hearing in July 2019. However, the Veteran did not report for that hearing either. He is deemed to have waived his hearing request. See 38 C.F.R. §§ 20.703, 20.704. Therefore, the Board may proceed to adjudicate this appeal. During the period of the appeal, in a February 2020 Rating Decision, the RO granted service connection for right and left lower extremity radiculopathy. The Veteran has not filed a notice of disagreement (NOD) disagreeing with any appealable determination made in the February 2020 rating decision, such as the schedular rating or effective date assigned by the RO. Therefore, those claims for service connection have been resolved and are no longer before the Board on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The Board notes that in an August 2015 rating decision, the Veteran was granted service connection for right and left hip strain (adduction), evaluated at 10 percent, effective December 8, 2014. Additionally, he was granted service connection for right and left hip strain (flexion), evaluated as noncompensable, effective December 8, 2014. On his August 2015 Notice of Disagreement (NOD), the Veteran wrote that he disagreed with the issue of “Bilateral hip strain in excess of 10 percent” and requested a rating higher than the 10 percent. Because only the adduction hip strains were granted 10 percent and due to the specificity of his NOD, the Board finds that the Veteran did not disagree with the noncompensable ratings assigned for his right and left hip strain (flexion), and they are not on appeal. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Entitlement to a disability rating in excess of 40 percent for DDD. The Board notes that effective November 15, 1998, to May 9, 2014, the Veteran was service connected for limitation of motion of the dorsal spine under Diagnostic Code 5291. 38 C.F.R. § 4.71a, DC 5291. In a July 2014 rating decision, the RO increased the Veteran’s back disability from 10 percent to 40 percent, and recharacterized it under Diagnostic Code 5242. 38 C.F.R. § 4.71a, DC 5242. The Veteran appealed the 40 percent rating assigned. The Veteran contends that his DDD is more severe than the 40 percent assigned, effective May 9, 2014, the date of his increased rating claim. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s spine disability has been assigned a disability rating under DC 5242 of 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The applicable rating schedule is as follows: The Spine Rating General Rating Formula for Diseases and Injuries of the Spine (For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): 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 injury or disease Unfavorable ankylosis of the entire spine 100 Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40 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 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 10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Disabilities of the spine involving intervertebral disc syndrome (IVDS) are assigned under DC 5243, which provides that the disability is to be rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher evaluation. See 38 C.F.R. § 4.71a, Note. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See id. at Note (1). Effective February 7, 2021, the DCs pertaining to the lumbar spine were amended. For purposes of this decision, the applicable rating criteria for those DCs did not materially change. See 85 Fed. Reg. 76453 (Nov. 30, 2020) (as corrected at 85 Fed. Reg. 85523 (Dec. 29, 2020), as corrected at 86 Fed. Reg. 8142 (Feb. 4, 2021)). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Analysis The Board notes that the June 2014, November 2017, and August 2019 VA examination reports do not conform with the requirements of Correia v. McDonald and Sharp v. Shulkin. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, because the Veteran is currently assigned a 40 percent rating for his service-connected back disability, a higher rating can only be assigned if there is ankylosis of the spine or if he was prescribed bed rest by a physician in the past 12 months. 38 C.F.R. § 4.71a, DCs 5235 to 5243. In all three examination reports, the Veteran was not diagnosed with ankylosis or prescribed bed rest by a physician. He does not argue that there was functional ankylosis. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660, at *23 (Vet. App. Apr. 16, 2021). Hence, any deficiency in the VA examinations is nonconsequential and nonprejudicial. Based on the evidence, the assigned 40 percent rating for the Veteran’s DDD fully contemplates his range of motion and all muscle spasm and gait symptoms. Throughout the period on appeal, the Veteran had three VA examinations to evaluate his service-connected back disability. In the first examination, in June 2014, the Veteran was diagnosed with limitation of motion of the dorsal spine, muscle spasm, and kyphoscoliosis and associated DDD. The Veteran’s range of motion was able to be tested initially and after repetitive-use. The examiner noted that pain, weakness, and fatigability significantly limited the Veteran’s functional ability during flare-ups. The VA examiner noted that the Veteran had additional pain on use, but no additional loss of range of motion at the onset. However, the Veteran reported that as his increased pain continued, the spasms in the paraspinal region worsened, making his range of motion more difficult and limited. The examiner could not estimate the degree of additional range of motion loss because the Veteran was unable to replicate the estimated limitation at the time of the examination. The Veteran was not diagnosed with ankylosis or IVDS. In the second VA examination that evaluated the Veteran’s back, in November 2017, the Veteran was diagnosed with a lumbosacral strain, degenerative arthritis of the spine, IVDS, spinal stenosis, and kyphoscoliosis. The Veteran reported flare-ups of his back characterized as being unable to breath when the pain came. He noted that he could not stand up straight. The VA examiner noted that the examination was not conducted during a flare up and that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare up. The examiner found that there was not ankylosis. While the Veteran was diagnosed with IVDS, he was not prescribed bed rest by a physician. In the third VA examination, in August 2019, the Veteran was diagnosed with DDD, kyphoscoliosis with limited motion of the dorsal spine, and IVDS. The examiner found that there was not ankylosis. While the Veteran was diagnosed with IVDS, he was not prescribed bed rest by a physician. The Veteran received medical treatment for his back. These treatment reports did not evaluate the nature, extent, and severity of his back disability during the appeal period. While not discussed specifically, the Board has reviewed them and taken them into consideration. Overall, this evidence shows that the Veteran’s range of motion was characterized by, at greatest, forward flexion of the thoracolumbar spine 30 degrees or less. 38 C.F.R. § 4.71a, DC 5242. The Veteran’s back disability is affirmatively shown to have not involved unfavorable ankylosis of the entire thoracolumbar spine. Additionally, he has never been prescribed bed rest. Id. His symptoms do not approximate a disability rating in excess of 40 percent and the claim must be denied. In his August 2015 VA Form 9, the Veteran argued for a higher rating under DC 5002, regarding rheumatoid arthritis. Because he does not have rheumatoid arthritis and because his disability is specifically listed in the rating schedule, this diagnostic code is not applicable to his case. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (When a condition is specifically listed in the rating schedule, it may not be rated by analogy under a different diagnostic code). The Board acknowledges the reports of constant pain associated with the Veteran’s back disability. The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 concerning functional loss due to pain, fatigue, weakness, lack of endurance, incoordination, and flare-ups have been considered in this analysis. See DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995), 38 C.F.R. § 4.71a, DC 5237-5243. However, even considering his statements, the 40 percent disability level is not demonstrated. Otherwise, it is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Moreover, the Veteran’s condition manifests with some symptoms readily observable by a lay person. Accordingly, the lay evidence is competent evidence to this extent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015); Fountain, 27 Vet. App. at 274-75. However, the rating schedule for evaluating the spine requires precise medical findings, including findings as to limitation of motion in degrees and ankylosis. It does not appear that the Veteran has a background in medicine, or a related field, such that he can be recognized as having the medical expertise needed to make such medical findings. Accordingly, his testimony is useful in understanding those symptoms he is competent to identify and the effect of the disability on his daily life, but does not provide a basis for assigning a higher rating. See Petitti, 27 Vet. App. at 427-28. In an August 2018 rating decision, the Veteran was granted service connection for radiculopathy of his bilateral upper extremities. In a February 2020 rating decision, he was granted service connection for bilateral lower extremity radiculopathy of the sciatic and femoral nerves. At present, those issues are not within the scope of this appeal. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660, at *33-34 (Vet. App. Apr. 16, 2021). There is no indication of neurologic abnormalities apart from those already service-connected. To conclude, the preponderance of the evidence is against a finding that the Veteran’s DDD warrants a rating in excess of 40 percent. Hence, the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for headaches, to include as secondary to lumbar and cervical spine disabilities, is remanded. In a July 2015 VA examination report, the Veteran was diagnosed with migraines, including migraine variants. The Veteran noted that he started having headaches in 2013. Initially, he was having them monthly, but he reported that he was having one or more a week. The VA examiner marked the box for the opinion that the claimed condition was at least as likely as not proximately due to or the result of the Veteran’s service-connected condition. However, in the rationale, the examiner discussed both the back condition and the migraines. As to migraines, the examiner commented that there was no objective evidence of record that the Veteran’s migraines were due to his back condition. Thus, it is not clear if the positive opinion was intended to apply to migraines. Based on an overall reading, it would appear it did not. Even if it did, the examiner’s opinion was conclusory as it provided no rationale as to why or how the opinion was reached. Additionally, the Board notes that in an August 2018 rating decision, the Veteran was granted service connection for his neck. In a February 2018 VA neck examination report, the Veteran noted that his neck caused him to get frequent headaches. An examination has not been conducted to address this new service-connected disability’s relationship to the headaches. Because of this, a new VA opinion is necessary to determine if the Veteran’s headaches are etiologically related to his service-connected DDD or neck disabilities. 2. Entitlement to an initial disability rating in excess of 10 percent for right hip strain (adduction) is remanded. 3. Entitlement to an initial disability rating in excess of 10 percent for left hip strain (adduction) is remanded. As there is considerable overlap in the applicable evidence for the Veteran’s claims, the Board will discuss them together. The Board finds that the current July 2015 and November 2017 VA examination reports are inadequate because they did not conform with the requirements of Correia v. McDonald and Sharp v. Shulkin. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Because of this, a new VA examination is necessary to determine the current severity of the Veteran’s bilateral hip disabilities. Additionally, a retrospective opinion is necessary to determine the severity of the Veteran’s hips from December 8, 2014 to the present. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The development and decision on the remanded issues will significantly impact a decision on the TDIU issue. Therefore, the issues are inextricably intertwined, and a remand of the TDIU issue is required. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate examiner in order to determine the nature and cause of the Veteran’s diagnosed headaches. The Veteran’s claims folder must be made available to the examiner. The scheduling of an examination is left to the discretion of the examiner. The examiner is asked to address each of the following: (a.) Whether a headache disorder at least as likely as not (1) began during active service, (2) manifested within 1 year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) , is otherwise related to an in-service injury, event, or disease. (b.) Whether the current condition is at least as likely as not (1) proximately due to, or (2) aggravated beyond its natural progression by a different medical condition, such as the service-connected lumbar spine or cervical spine disabilities. If so, the examiner is asked to identify the primary medical condition. 2. Schedule the Veteran for a VA examination to assess the severity of his hip disabilities. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (b.) In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). (c.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). (d.) Additionally, the examiner should provide a retrospective medical opinion concerning the severity of the Veteran’s hip disabilities from December 8, 2014 to the present. In doing so, the examiner must attempt to estimate the functional loss in range of motion, if any, for the hip disabilities from 2014 to present based on all available—or reasonably obtainable—data. If this is not possible, the examiner must explain why Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Abrams, 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.