Citation Nr: 21026841 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-40 757 DATE: May 4, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for chronic diarrhea is denied. Entitlement to an initial disability rating in excess of 10 percent for cervical spondylosis with degenerative arthritis is denied. REMANDED Entitlement to service connection for acid reflux is remanded. Entitlement to a disability rating in excess of 20 percent prior to February 27, 2015, in excess of 10 percent prior to October 15, 2020, and in excess of 30 percent thereafter for open angle glaucoma is remanded. FINDINGS OF FACT 1. The Veteran's chronic diarrhea is not manifested by diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. 2. The Veteran's cervical spondylosis with degenerative arthritis is manifested by combined active range of motion of the cervical spine no worse than 285 degrees, with forward flexion no worse than 40 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for chronic diarrhea have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.114, Diagnostic Codes 7399-7319. 2. The criteria for a rating in excess of 10 percent for cervical spondylosis with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the United States Army from August to December 1991; from February 1992 to February 2002; and from April 2002 to March 2012. These matters are on appeal from June 2015, April 2016 and July 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). They were most recently before the Board in April 2020, at which time they were remanded for additional development. The issues have since returned to the Board for appellate consideration. In a December 2020 rating decision, the RO granted the Veteran's claim of service connection for erectile dysfunction, which the Board had remanded in April 2020. As this represents a full grant of the benefit sought, that issue is no longer on appeal and will not be discussed further herein. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated based on specific criteria identified by Diagnostic Codes. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where there is a question as to which of two ratings should be applied, the higher rating 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. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 1. Entitlement to an initial disability rating in excess of 10 percent for chronic diarrhea The Veteran's service-connected chronic diarrhea is currently rated 10 percent disabling under 38 C.F.R. § 4.114. Chronic diarrhea is not specifically listed in the rating schedule, so it is rated by analogy to irritable colon syndrome under Diagnostic Code 7319. Under that Diagnostic Code, moderate irritable colon syndrome with frequent episodes of bowel disturbance and abdominal distress warrants a 10 percent evaluation. Severe colon syndrome with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, warrants a 30 percent evaluation. 38 C.F.R. § 4.114, Diagnostic Code 7319. Turning to the evidence, the Board notes that in a June 2015 addendum submitted in connection with his original claim, the Veteran described his diarrhea as "frequent." The Veteran was afforded a VA examination in connection with his claim in April 2016. The Veteran reported that he started having intermittent diarrhea in 2008, but that it had was now more constant. He reported bowel movements twice per day. He reported that his private doctor performed a stool sample, and it came back normal. He reported diarrhea and gas gestation that "comes and goes." The examiner indicated that the Veteran had "near constant" diarrhea with abdominal distention that "comes and goes." The Veteran did not have episodes of bowel disturbance with abdominal distress, or exacerbations or attacks of an intestinal condition. There was no malnutrition, serious complications, or other general health effects attributable to the intestinal condition. The examiner indicated that the Veteran's condition impacted his ability to work in that he must be near a restroom at all times. VA treatment records are silent for reports or complaints of diarrhea. An October 2019 VA treatment shows the Veteran denied a recent history of diarrhea, constipation, or abdominal pain. Overall, after careful review of the record, the Board finds that a disability rating in excess of 10 percent is not warranted at any point during the period on appeal. As previously discussed, a higher rating of 30 percent under Diagnostic Code 7913 requires symptoms of diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. In this case, the Veteran reported diarrhea with abdominal distention that "comes and goes." The examiner indicated that the Veteran's diarrhea was "near constant" but that he did not have episodes of bowel disturbance with abdominal distress. Moreover, VA treatment records throughout the period on appeal are silent for reports of constant diarrhea or abdominal distress. The Board notes that the requirement under Diagnostic Code 7319 of diarrhea or alternating diarrhea and constipation "with" more or less constant abdominal distress means that both factors are required. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); cf Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). As the evidence does not show that the Veteran has more or less constant abdominal distress, the Board finds that his symptoms are contemplated by the currently assigned 10 percent disability rating, and that a higher rating is not warranted. 2. Entitlement to an initial disability rating in excess of 10 percent for cervical spondylosis with degenerative arthritis The Veteran seeks a higher rating for his cervical spine disability, for which he has been assigned a 10 percent disability rating for the entire period on appeal under 38 C.F.R. § 4.71a, Diagnostic Code 5242. In a June 2015 addendum submitted in support of his claim, the Veteran wrote that he had tightness, stiffness, and discomfort in his neck. The Board notes that, during the pendency of the appeal, the rating criteria for evaluating certain musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes (including DC 5242) "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, then the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. See 38 U.S.C. § 5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. See 38 U.S.C. § 5110. Therefore, where applicable, the Board will consider the Veteran's currently appealed claims under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Under the revised criteria, effective February 7, 2021, Diagnostic Code 5243 for Intervertebral Disc Syndrome (IVDS) is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. All other disc diagnoses are assigned under Diagnostic Code 5242. Under the former criteria, Diagnostic Code 5242 evaluates degenerative arthritis of the spine (see also Diagnostic Code 5003). Under the revised criteria, effective February 7, 2021, Diagnostic Code 5242 evaluates degenerative disc disease other than IVDS (see, also either Diagnostic Code 5003 or 5010). Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating 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. 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 U.S. Court of Appeals for Veterans Claims (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 question of whether a particular medical issue is beyond the competence of a laypersonincluding both claimants and Board membersmust be determined on a case-by-case basis." Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). In this case, the Board is competent to observe that voluntary range of motion testing is going to be more favorable to the Veteran than involuntary range of motion testing. In DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1592 (32nd ed. 2012), range of motion redirects the reader to "exercise." Passive exercise "is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient's own body." Id. at 658. Active exercise is "motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part." It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran's joint farther than he would be able to move it on her own. Therefore, active motion is more favorable to the Veteran, and the results of active motion testing were provided. Similarly, it is reasonable to conclude that non-weightbearing motion is less difficult than weightbearing motion. The competent evidence of record does not tend to indicate that the structural integrity of the Veteran's cervical spine is compromised in such a way that passive range of motion would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing, or failure to provide specific measurements for such testing, is not prejudicial. The Board will therefore evaluate the Veteran's range of motion using the available findings of active range of motion and looking at all the relevant medical and lay evidence. Turning to the evidence, the Board observes that the Veteran was afforded a VA Neck Conditions examination in April 2016. The Veteran reported stiffness and pain: "I can sneeze wrong and my neck will lock up[.]" He described "regular" pain as a "3" but worse pain if sneezing or moving the neck wrong"about an 8." The Veteran reported that the condition was better, but that he still experienced stiffness and decreased range of motion. He reported no medication or treatment for the condition. The Veteran described flare-ups as not being able to move his neck while driving. He described functional loss as an inability to turn his neck to the side, and that he could not check his mirrors while driving. Range of motion testing showed forward flexion to 40 degrees, extension to 25 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 80 degrees, and left lateral rotation to 80 degrees. The Veteran's combined range of motion was 285 degrees. The examiner wrote that range of motion contributed to functional loss in that the Veteran had decreased extension. There was no pain noted on examination of range of motion testing, but the Veteran verbalized pain of mild severity on palpation. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or range of motion after three repetitions. The examination did not take place immediately after repetitive use over time, and the examiner wrote that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner indicated that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over a period of time. The examination likewise was not conducted during a flare up, and the examiner wrote that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare up. The examiner indicated that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with flare up. The Veteran did not have any muscle spasm or guarding, and no ankylosis was noted. The examiner also noted that the Veteran did not have IVDS. The examiner determined that the Veteran's cervical spine disability did not impact his ability to work. The Veteran was afforded another VA examination in November 2020. The Veteran reported having neck pain "on and off" and that it "flares up sometimes." He reported that his neck was especially painful if moved the wrong way. He reported experiencing flare-ups of moderate severity approximately once per month, lasting about a day at a time. He described the flare-ups as being precipitated by quick movements and alleviated by ice, Motrin, and rest. He described functional impairment consisting of difficulty checking his blind spot while driving. Range of motion testing showed forward flexion to 45 degrees, extension to 45 degrees, right lateral flexion to 45 degrees, left lateral flexion to 45 degrees, right lateral rotation to 70 degrees, and left lateral rotation to 80 degrees. The Veteran's combined range of motion was 330 degrees. The examiner wrote that range of motion did not contribute to functional loss. Pain was noted on examination of left lateral flexion and right lateral rotation, but it did not result in or cause functional loss. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or range of motion after three repetitions. The examination did not take place immediately after repetitive use over time, and the examiner wrote that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner indicated that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over a period of time. The examination likewise was not conducted during a flare up, and the examiner wrote that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare up. The examiner indicated that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with flare up. The Veteran did not have any muscle spasm or guarding, and no ankylosis was noted. The examiner also noted that the Veteran did not have IVDS. The examiner determined that the Veteran's cervical spine disability did not impact his ability to work. There was no evidence of pain on passive range of motion testing of the neck, nor with non-weight bearing testing of the neck. VA treatment records show the Veteran complained of chronic neck pain throughout the period on appeal. In October 2020, the Veteran reported using lidocaine patches to manage pain. Overall, the Board finds that the evidence shows that the currently assigned 10 percent rating adequately contemplates the Veteran's cervical spine disability symptoms throughout the period on appeal. Throughout the period, the Veteran's combined active range of motion of the cervical spine was no worse than 285 degrees. Forward flexion of the cervical spine was no worse than 40 degrees. Even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements concerning increased stiffness and periodic locking up would not result in limitation of motion more nearly approximating forward flexion of 15 degrees but not greater than 30 degrees or the combined range of motion of the cervical spine not greater than 170 degrees. Additionally, the Veteran did not have 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 Veteran was not found to have IVDS. In reaching this conclusion, the Board acknowledges that the Veteran reported flare-ups during the period, and neither examiner attempted to estimate additional loss of function during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, the Veteran indicated that flare-ups occurred approximately once per month and lasted about a day at a time. The Court has found that increasing a rating based on symptoms two to four times per month would violate the rule regarding stabilization of ratings, which directs rating officials to effect the "greatest degree of stability of disability evaluations" when faced with fluctuating conditions. Tatum v. Shinseki, 23 Vet. App. 152, 158 (2009) (quoting 38 C.F.R. § 3.344). Given the reported frequency of flare-ups during this period, the Board finds that the currently assigned 10 percent rating adequately contemplates the Veteran's symptoms. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for cervical spondylosis with degenerative arthritis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Regrettably, for the reasons discussed below, the remaining issues on appeal must be remanded for additional development. 1. Entitlement to service connection for acid reflux is remanded. In accordance with the Board's April 2020 remand instructions, the Veteran was afforded a VA examination in September 2020, during which the Veteran was diagnosed with gastroesophageal reflux disease (GERD). Unfortunately, the Board finds that the examiner's opinions as to whether the Veteran's GERD is etiologically related to service or a service-connected disability are inadequate. For instance, in determining that the Veteran's GERD was less likely than not proximately due to or the result of a service-connected condition, the examiner wrote, "unable to determine above service connected condition and medication for the service connected condition." Moreover, the examiner indicated that she was able to determine a baseline level of severity of GERD and that the current severity of the condition was not greater then the baseline, but she then wrote, "unable to speculate on current severity[.]" The examiner did not mention articles submitted by the Veteran suggesting a relationship between GERD and mood and anxiety disorders, as well as GERD and sleep disorders. Instead of providing detailed, well-reasoned medical findings, the examiner largely stated conclusions without explanation, or her explanations seemed to conflict with her conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) ("the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion"). 2. Entitlement to a disability rating in excess of 20 percent prior to February 27, 2015, in excess of 10 percent prior to October 15, 2020, and in excess of 30 percent thereafter for open angle glaucoma is remanded. VA treatment records associated with the claims file since the Board's April 2020 decision show the Veteran had a retinal nerve fiber layer (RNFL) optical coherence tomography (OCT) scan in November 2019, the results of which were sent to Vista Imaging. The scan is not otherwise associated with the claims file. Closer inspection of other VA treatment records associated with the claims file show that additional treatment records associated with non-VA eye care are visible in Vista Imaging but are not associated with the claims file and are therefore unavailable for review by the Board. These includes records of treatment through the Berkeley Eye Center. As these records are relevant to the Veteran's claim on appeal, remand is necessary to attempt to obtain them and associate them with the claims file. The matters are REMANDED for the following actions: 1. Obtain the Veteran's non-VA eye treatment records that are scanned into Vista Imaging but not associated with the Veteran's claims file, including records of treatment through the Berkeley Eye Center. All efforts to obtain these records must be documented in the claims file. 2. Return the claims file, along with a copy of this remand order, to the examiner who completed the September 2020 VA examiner (or suitable alternative) for an addendum opinion concerning the etiology of the Veteran's GERD. The entire claims file must be provided to the examiner for review, and the opinion should reflect that such a review was accomplished. The need for another examination is left to the discretion of the practitioner offering the addendum opinion. Following a review of the claims file and examination of the Veteran, the examiner is to address the following questions: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's GERD was incurred during active service? (b.) If the disability is not found to be directly related to service, is it at least as likely as not (50 percent probability or more) that the Veteran's GERD was caused or aggravated by a service-connected disability, including mood disorder and obstructive sleep apnea, to include medication used to treat such disabilities? The examiner is asked to address articles submitted by the Veteran in July 2019 suggesting a connection between the conditions. The examiner should note that in answering this question, two opinions are required: one for proximate causation and a second for aggravation. Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. Ward v. Wilkie, 31 Vet. App. 233 (2019). (Continued on the next page) A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 3. Readjudicate the claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. T. Raftery, 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.