Citation Nr: 21026475 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 13-04 758 DATE: May 3, 2021 ORDER Entitlement to a rating in excess of 20 percent for a lumbar spine disability, over the entire appeal period, is denied. Entitlement to a compensable rating for hemorrhoids, over the entire appeal period, is denied. FINDINGS OF FACT 1. Over the entire period on appeal, the Veteran's lumbar spine disability was manifested by an abnormal gait or by forward flexion of less than 60 degrees but not less than 30 degrees; there was no limitation of forward flexion to less than 30 degrees, no spinal ankylosis; and, there was no physician prescribed bed rest. 2. Over the entire period on appeal, the Veteran's hemorrhoids have been mild or moderate and have not been large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, presented with persistent bleeding and secondary anemia, or with fissures. CONCLUSIONS OF LAW 1. Over the entire appeal period, the criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237-5243. 2. The criteria for a compensable rating for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.20, 4.114, Diagnostic Code 7336. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2009, January 2013, June 2015, and April 2020 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing before the undersigned in April 2018 . The Board remanded the claim for additional development in July 2018. As this development is now completed, the claims are returned to the Board for continued appellate review. The Board notes the June 2015 rating decision established service connection for bilateral lower extremity radiculopathy. The April 2020 rating decision provided an increased rating and earlier effective dates for these disabilities. The Veteran has not filed any appeals as to these rating decisions and no claims related to lower extremity radiculopathy are now before the Board. A July 2020 rating decision granted entitlement to service connection for a traumatic brain injury (TBI). This represent a total grant of the benefit sought on appeal with respect to this issue. It is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The Board notes the Veteran meets the schedular criteria for a total disability rating based on individual unemployability (TDIU). However, the evidence of record indicates that the Veteran is employed as a bookkeeper/accountant. Therefore, the Board finds that the issue of TDIU is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran has requested a hearing to address the outstanding claims of entitlement to service connection for tinnitus, hearing loss, and dysmenorrhea and for an increased rating for depression. These issues will be addressed in a separate decision after the requested hearing is held. INCREASED RATING Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005). If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 1. Entitlement to an initial rating in excess of 20 percent for a lumbar spine disability 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 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 evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Diagnostic Code 5243 provides that IVDS (intervertebral disc syndrome) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25 . The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 20 percent rating is warranted 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 is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to DC 5243 provides that, for purposes of ratings under DC 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. Id. at Note 1. Here, the Veteran seeks an increased initial rating for her lumbar spine disability, which is identified as lumbosacral strain and intervertebral disc syndrome. This condition is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237-5243. Currently, a 20 percent disabling is applied from November 4, 2008, the date the Veteran filed a claim seeking service connection. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Accordingly, the Veteran's lumbar spine condition is evaluated under the rating criteria applicable to Diagnostic Code 5243. An initial VA examination of the Veteran's spine was provided in August 2009. She reported constant moderate back pain. The pain was exacerbated by physical activity and sitting too long. During flare ups, she experienced pain, weakness, and limited motion in her lower back. The examiner documented muscles spasms, tenderness, and guarding. The Veteran's gait was normal. On initial range of motion testing, the Veteran was able to move in forward flexion to 70 degrees. With repetitive motion, flexion was reduced to 65 degrees. The examiner noted spine function was limited by pain, fatigue, weakness, lack of endurance, and incoordination. The Veteran was limited in her ability to push, pull, and lift heavy objects. There was no spinal ankylosis. A second VA back conditions examination was provided in May 2015. The examiner diagnosed lumbosacral strain. The Veteran reported that her condition had worsened over the prior 18 months. She stated that her legs gave out and she had fallen. Her back pain increased with sitting longer than 5-10 minutes. She used a back brace and medications. Although she experienced increased pain with short periods of sitting, she did not report flares of her back condition. On initial range of motion testing, forward flexion, with objective evidence of pain, was noted to 70 degrees. After repetitive use testing (3 repetitions), flexion continued to 70 degrees. The examiner observed pain on palpation of the left lumbar area. Function was impaired by less movement than normal and pain on movement. Guarding and muscle spasms were not observed. There was no muscle atrophy. The Veteran reported that she was an accountant, which required her to sit and do paperwork. Her back condition impacted her ability to work because sitting for extended periods was painful. She also reported difficulty exercising. The examiner did not provide any estimates of additional limitations during flares or following repetitive use over time. In April 2018, the Veteran testified and described daily agonizing back pain. Her pain increased with weather condition. She used a back brace and pain medications. She stated that she received all back treatment through the VA. A third VA back conditions examination was provided in December 2018. The examiner diagnosed lumbosacral strain and IVDS. The Veteran reported her condition had worsened. She described flare ups, with the loss of feeling in her lower back and legs, during cold weather. She used a walker because she had occasional falls. Initial range of motion testing revealed normal motion in the lumbar spine. The Veteran was able to move in forward flexion to 90 degrees. Pain was noted with movement and there was evidence of pain with weight bearing. Following three repetitive motions, forward flexion was limited to 40 degrees. The examiner estimated, during flares and with repetitive use over time, forward flexion would continue be limited to 40 degrees. He noted pain, fatigue, weakness, and lack of endurance resulted in functional loss. Muscle spasm and guarding, resulting in abnormal gait or abnormal spine contour, were observed. Weakened movement, instability of station, disturbance of locomotion, and interference with standing limited the Veteran's lower back function. No ankylosis was observed. Although the examiner diagnosed IVDS, he found there had been no episodes requiring bedrest prescribed by a physician over the prior 12 months. The Veteran was unable to engage in physical activities requiring prolonged standing or walking. There was objective evidence of pain on passive range of motion testing and on non-weight bearing range of motion testing. This examination contains the evaluations required under Correia and Sharp. VA treatment records include the Veteran's consistent reports of chronic back pain. In May 2013, the Veteran's VA psychologist noted the Veteran's interest in obtaining additional back treatment, including back surgery or injections. However, there are no records documenting therapeutic injections or surgery for a back condition. The Board notes, a March 2015 Non-VA Care referral was entered for injections to treat an elbow condition. Over the entire appeal period, there is no evidence of any incapacitating episodes requiring bed rest prescribed by a physician. Accordingly, the Veteran's back disability is rated on the basis of limitation of motion using the general Rating Formula for Disease and Injuries of the Spine. The evidence shows the Veteran has experience back pain and weakness, muscle spasms, guarding, and an abnormal gait. She has difficulty sitting, standing, and walking for prolonged periods. However, there is no evidence that forward flexion of her spine has been limited to 30 degrees or less, including during flares or with repetitive use over time. There is no indication of ankylosis or a limitation of function that approximates ankylosis at any time. The preponderance of the evidence is against finding a rating in excess of 20 percent is warranted. The benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.71a, Diagnostic Code 5237-5243, 4.3, 4.7. 2. Entitlement to an initial compensable rating for hemorrhoids The rating criteria for hemorrhoids are set forth in 38 C.F.R. § 4.114, Diagnostic Code 7336. A noncompensable rating is warranted for mild or moderate hemorrhoids. A 10 percent rating is warranted where the hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent disability rating is warranted for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. An October 2011 VA rectal examination documented moderate external hemorrhoids. There were no internal hemorrhoids and the rectal exam was otherwise normal. In April 2018, the Veteran testified that her hemorrhoid condition had worsened because she delayed using the bathroom because of back pain. She had not sought treatment for her hemorrhoids. She purchased and used over the counter hemorrhoid medications. VA treatment records do not reflect any treatment for hemorrhoids over the appeal period. (Continued on the next page) An additional VA rectum and anal conditions examination was provided in December 2018. The Veteran reported that she did not have any current discomfort at the time of the examination. She declined to have a rectal examination performed. The examiner continued a diagnosis of mild or moderate external hemorrhoids. He observed the condition was in remission. He noted this condition limited the Veteran's ability to engage in physical activities requiring prolonged standing or walking. However, in an additional statement, the examiner explained that he had discussed the hemorrhoid condition with the Veteran. She did not have "any appreciable clinical manifestation of external or internal hemorrhoids at the present time." As there were no current manifestations, the examiner could not identify any symptoms or functional impairment associated with the hemorrhoid disability. The evidence, including VA examinations of October 2011 and December 2018, reflects the Veteran experienced mild or moderate hemorrhoids over the appeal period. She has treated them with over the counter medications. However, the preponderance of the evidence is against finding her hemorrhoids have met the criteria for a compensable rating at any time during the period on appeal. There is no evidence to suggest large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences. The record likewise fails to show fissures or persistent bleeding with secondary anemia linked to the Veteran's hemorrhoid condition. A compensable rating is not warranted. 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7336. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.