Citation Nr: 21028117 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-11 776 DATE: May 10, 2021 ORDER Entitlement to an increased evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder and major depressive disorder, as secondary to degenerative disc disease of the lumbar spine and tinnitus is granted. FINDINGS OF FACT 1. During the entire period on appeal, the Veteran's degenerative disc disease of the lumbar spine was not manifested by forward thoracolumbar flexion of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or by incapacitating episodes having a total duration of at least four weeks but less than six weeks. 2. The evidence is in equipoise as to whether the Veteran's acquired psychiatric disorder, to include adjustment disorder and major depressive disorder, was either proximately caused or aggravated by service-connected degenerative disc disease of the lumbar spine and tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met.38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.59, 4.71a, Diagnostic Code (DC) 5243. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder and major depressive disorder, have been met. 38 U.S.C. § 1110, 1131, 1154, 5107; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1982 to June 1995 with additional service in the National Guard. In April 2007, VA granted service connection for degenerative disc disease lumbar spine claimed as back pain and assigned a 20 percent rating from October 2, 2006. The Veteran did not timely disagree with this decision nor submit new and material evidence within one year. In a July 2013 decision, the Regional Office (RO) continued the 20 percent evaluation for degenerative disc disease lumbar spine claimed as back pain. New and material evidence was received within the one-year appeal period and in March 2014, VA continued the 20 percent rating assigned. In October 2014, the RO denied service connection for depression. The Veteran timely appealed this decision. The Veteran's appeal has previously been before the Board. In November 2018 and March 2020, the Board remanded the Veteran's degenerative disc disease of the lumbar spine and acquired psychiatric disorder claims to the Agency of Original Jurisdiction (AOJ) for additional development. 1. An increased evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine. The Veteran contends that his degenerative disc disease of the lumbar spine is more severely disabling than represented by the currently assigned 20 percent rating. The period on appeal begins on May 10, 2012, the date of the Veteran's claim for an increased rating for his back disability. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown,7 Vet. App. 55 (1999). Nevertheless, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods within the period on appeal. Where there is a question as to which of the 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention 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. The appellant's degenerative disc disease of the lumbar spine is rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DC 5243. The General Rating Formula provides a 20 percent rating when forward thoracolumbar flexion is greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted when forward thoracolumbar flexion is 30 degrees or less; or there is favorable ankylosis of the entire thoracolumbar spine. Id. There are alternative rating criteria for the spine available under DC 5243, for an intervertebral disc syndrome, which allows for the assignment of rating criteria based on the frequency and extent of incapacitating episodes. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is defined as "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). A 20 percent rating is warranted where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. A 40 percent rating is warranted where incapacitating episodes have a total duration of four weeks but less than six weeks during the past twelve months. Id. Turning to the evidence, the Veteran complained in January 2013 of increased back pain that worsened over the past six months. A scan of the lumbar spine showed no acute abnormality and slight degenerative changes. An MRI that months showed multilevel disc bulges and mild disc desiccation from L3 through S1 compatible with degenerative disc disease. In March 2013, the Veteran was seen for pain in his back. He stated that if he tried to walk very far, he got pain down into his hips but not any true pain that increased if he tried to walk on the left leg. A medical treatment record, also that month, noted that the Veteran presented for a follow-up of lower back pain. He complained of continued increased back pain that had worsened over the past six months. He rated pain at a seven to eight out of 10 at times. On VA examination in July 2013, the Veteran did not report that flare-ups impacted the function of his back. Forward flexion was recorded as 90 degrees or greater. There was no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. He did not have pain, muscle spasm, or guarding. He did not have IVDS. In a July 2013 statement in support of claim, the Veteran's physician wrote, [The Veteran] presents with complaints of lower back pain that has worsened over the last six to eight months. [He] reports having back pain since military service. Rated pain at seven to eight or greater on pain scale. Has tried several different NSAIDs and muscle relaxers which help for short duration for pain. MRI January 17, 2013 revealed multilevel disk bulging, DDD and foraminal stenosis of the lumbar spine. [He] reports he is unable to do normal household chores due to pain is able to perform basic ADL by self. He is able to ambulate without assistive devices. Pain is constant and chronic. At a March 2014 VA examination the Veteran reported that since the time of service connection, "I think that it's gotten worse." He also noted that "just about anything aggravates it." He gave examples of worsening with "sitting, standing, moving wood." He did not report that flare-ups impacted the function of the back. Forward flexion was 85 degrees. There was no objective evidence of painful motion. There was not additional loss of range of motion after repetitive use. He described flare-ups, stating "the pain comes and goes" and was worsened by standing. There was no ankylosis. The examiner noted that the Veteran did not have IVDS of the thoracolumbar spine. There was no objective evidence or documentation of loss of range of motion, pain, weakness, fatigability, or incoordination of the Veteran's affected lumbar spine joint(s) during repeated flare-ups (if any) or when the joint(s) is/are used repeatedly over a period of time. Therefore, the examiner noted that she would have to resort to mere speculation to provide an opinion as to whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the lumbar spine joint(s) is/are used repeatedly over a period of time and furthermore and for the same reason, the examiner noted that she would also have to resort to mere speculation to describe any such additional limitation due to pain, weakness, fatigability, or incoordination. On VA examination in April 2016, the Veteran stated that since his last VA examination his back pain had increased. He stated that anytime he did anything it got aggravated. He took several medications daily. He stated that he also had a TENS unit he would use this whenever his back flared, which seemed to help some. He reported flare-ups of the back and stated his back would flare with any prolonged or repetitive activities. He stated these flares would last anywhere from a day to four days at a time. He stated during his flares he was unable to do any lifting, and that he could basically do whatever he needed to but had to slow down. He reported functional limitations described as unable to sit or stand in one place for more than 15 or 20 minutes at a time, unable to walk more than about 1/4 of a mile at a time, unable to lift, carry, push, pull or drag more than about 30 to 40 pounds at a time. Forward flexion was 0 to 70 degrees. There was pain noted on examination, but it did not result in/cause functional loss. There was evidence of pain on weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the back. There was no additional loss of function or range of motion after three repetitions. The VA examiner noted that she was unable to say if pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups. She wrote, "It is not possible without mere speculation to estimate either loss of ROM or describe loss of function during repeated use and/or flare-ups because there is no conceptual or empirical basis for making such a determination without directly observing function under these circumstances. It should also be noted that no scientific basis for this question has been provided and that there is generally no relationship between range of motion and functional loss with repeated use and/or flare-ups. Additional factors contributing to the disability included disturbances of locomotion and interference with sitting and standing. There was no ankylosis of the spine. The Veteran had IVDS but had no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. In an October 2017 medical treatment record, the Veteran shared that he had had a sore back for three days due to lifting boards for his deck. Muscle relaxers and medication was not helping at all. In a November 2018 BVA decision, the Board remanded the Veteran's claim for degenerative disc disease of the lumbar spine for a new VA examination as the March 2014 and April 2016 VA examinations did not comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017). In an October 2019 lay statement, the Veteran's wife provided, [He] complains regularly about his back hurting him and causes him to lose sleep. Sometimes he takes naps in the evenings, but he wakes up periodically throughout the night due to the severe pain he is in. Because he loses sleep over back pain, it makes him even more unpleasant to be around... [He] also has a hard time concentrating and meeting new people. I think his constant pain and lack of hearing cause him to be irritable, which makes it hard to meet new people and get used to being around them. Change is not something [he] gets used to very easily, and the back pain and hearing loss force him to adapt daily, further causing him to be more irritable. In a March 2020 BVA decision, the Board remanded the Veteran's claim for a new VA examination as the Veteran had provided good reason for not attending his previously scheduled examination. In a March 2020 VA examination, the Veteran stated that over time his low back pain had worsened. He also had increased stiffness at times. He had radiating pain down his left leg at times. He reported flare-ups of the back that occurred weekly. The flare-ups were moderate and lasted up to one week. They were precipitated by activity and alleviated by rest and pain medication. He reported having functional loss or impairment of the back described as with flares he could not lift over 20 pounds and problems with bending and twisting. Forward flexion was noted as 0 to 80 degrees. There was pain noted on examination during forward flexion and extension which caused functional loss. There was no evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the back. There was no additional loss of function or range of motion after three repetitions. Pain significantly limited functional ability with repeated use over a period of time. This was described in range of motion as 0 to 60 degrees for forward flexion. The examination was not conducted during a flare-up but was medically consistent with the Veteran's statements describing functional loss during a flare-up. Pain significantly limited functional ability with flare-ups described in terms of range of motion as 0 to 60 degrees for forward flexion. He did not have guarding or muscle spasm of the back. He had less movement than normal due to ankylosis, limitation or blocking, adhesions, etc. He did not have muscle atrophy. There was no ankylosis of the spine. He did not have IVDS of the thoracolumbar spine. There was objective evidence of pain on passive range of motion testing of the back. There was no evidence of pain on non-weight bearing testing of the back. The Board finds that this examination complies with the directives of the November 2018 BVA decision, as the examination complies with the requirements articulated in Sharp. The foregoing evidence preponderates against granting a rating in excess of 20 percent for degenerative disc disease of the lumbar spine. In this regard, the evidence preponderates against finding 30 degrees or less of thoracolumbar forward flexion, favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes with a total duration of at least four weeks. The evidence discussed above reveals no less than 60 degrees of forward flexion, no indication of ankylosis and no reports of incapacitating episodes requiring prescription of bedrest by a physician. All of the Veteran's additional reported symptoms have been considered, to include his reports of low back pain, stiffness, weakness and flare-ups. The Board is sympathetic to the pain experienced by the Veteran. However, these symptoms do not reveal forward thoracolumbar flexion of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least four weeks but less than six weeks, and therefore do not approximate the criteria for a higher rating. Regarding relevant neurological findings, the Board notes that the Veteran is already service connected for radiculopathy of the left lower extremity, the rating for which, as well as the effective date, were previously challenged by the Veteran but denied by the Board in November 2018. These denials were not appealed. Medical evidence has been negative for any objective finding of radiculopathy in the Veteran's right lower extremity. Based on the foregoing, the preponderance of the evidence is against finding that a rating in excess of 20 percent for degenerative disc disease of the lumbar spine is warranted. The claim is denied. 2. Service connection for an acquired psychiatric disorder. The Veteran claims entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder and major depressive disorder, as secondary to degenerative disc disease of the lumbar spine and tinnitus. Following a thorough review of the Veteran's medical records, the Board finds that he is entitled to an award of service connection as the evidence is in equipoise. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. 38 C.F.R. § 3.310; Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Veteran has asserted that he should be awarded service connection for his acquired psychiatric disorder secondary to his service-connected disabilities. See Third Party Correspondence dated October 2019. Additionally, as the evidence is against a finding of entitlement to service connection based on a direct service connection theory but is in favor of a finding of entitlement to service connection based on a secondary service connection theory, the Board will limit its analysis to the secondary service connection theory advanced by the Veteran and the record. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). As an initial matter, the Board finds that the Veteran has satisfied the first element of secondary service connection, a current disability. A review of the Veteran's April 2016 VA examination shows the Veteran has adjustment disorder with mixed anxious and depressed mood. See VA Examination dated April 2016. Therefore, the Board finds that the Veteran has satisfied the first prong of service connection, the existence of a current disability. As to evidence of a service-connected disability, the Veteran is service-connected for degenerative disc disease of the lumbar spine and tinnitus, among other disabilities. Therefore, the Board finds that the Veteran has satisfied the second prong of service connection on a secondary basis: evidence of a service-connected disability. Turning next to evidence of a causal relationship between the service-connected disability and the current disability, the Board finds that the evidence is at least in equipoise. In determining this, the Board finds the medical opinions of the May 2015 and November 2020 private physician and the April 2020 and May 2020 examiner to be probative and entitled to equal weight. A January 2007 depression screen was negative. In a May 2015 assessment, a private physician provided, "This expert believes his depressive disorder secondary to medical condition and social impairment are emotionally debilitating. The DSM states individuals with this symptomology typically have few friends and inability to maintain a job. Upon Mental Status Examination and clinical interview, this evaluator notes occupational and social impairments." She provided activities of the Veteran's daily living, a psychiatric symptom statement, employability review, medical journal articles supporting the Veteran's claim, and supportive medical documentation. She concluded by stating, "It is the belief of this examiner, based on interview and the C-File that [his] degenerative disc disease lumbar spine and tinnitus are more likely than not aggravating his depressive disorder due to another medical condition." A December 2015 mental health note recorded a diagnosis of other specified problems related psychosocial circumstances. A January 2016 mental health note recorded a DSM-V diagnosis of adjustment disorder with anxious and depressed mood. A November 2016 depression screen was negative. In a November 2016 GAD test, the Veteran had a high score which indicated the presence of anxiety symptoms. A March 2017 medical treatment record showed a GAD-7 score of 19, which indicated a low level of anxiety. A suicide risk screen was negative. In a June 2017 medical treatment record, when asked if he had been feeling depressed, the Veteran responded, "you might say that." In July 2017, when asked about his depression symptoms, the Veteran reported he had been taking it one day at a time. In a September 2017 medical treatment record, when asked if he had been feeling depressed, the Veteran reported every now and then. In an October 2017 medical treatment record, the Veteran denied feeling depressed. At the time, care management for depression symptoms was ended. In a November 2018 BVA decision, the Board remanded the Veteran's claim for a medical opinion as to whether any current psychiatric disorder was proximately due to or aggravated by a service-connected disability. In a January 2019 mental health note, the Veteran had a depression scale score showing minimal depression. An April 2019 depression screen was negative. In an October 2019 lay statement, the Veteran's wife provided, I have noticed a lot of changes in him since his time in the Coast Guard. In 1992 his oldest son was severely burned in an accident. Because of [his] placement on the ship, his son was placed into temporary foster care...Since this incident, he has become an emotional rollercoaster and experiences extreme mood swings...Because he loses sleep over back pain, it makes him even more unpleasant to be around. He is very hard of hearing and complains about the ringing in his ears. If I ask him a question or ask him to repeat something I may not have heard, he sometimes flies off the deep end. [He] also has a hard time concentrating and meeting new people. I think his constant pain and lack of hearing cause him to be irritable, which makes it hard to meet new people and get used to being around them. Change is not something [he] gets used to very easily, and the back pain and hearing loss force him to adapt daily, further causing him to be more irritable. In a March 2020 BVA decision, the Board again remanded the Veteran's claim for a new VA examination as the Veteran had provided good reason for not attending his previously scheduled examination. In an April 2020 DBQ, a diagnosis of recurrent, mild major depressive disorder was noted. The examiner noted that this diagnosis was best described as an extenuation of the previously diagnosed adjustment disorder with depressed mood. Given the fact that his symptoms had persisted for such a period, as adjustment disorder diagnosis was no longer clinically appropriate. Symptoms he experienced included depressed mood, anxiety, mild memory loss, such as forgetting names, directions or recent events, flattened affect, speech intermittently illogical, obscure, or irrelevant, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. The examiner concluded that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. In the rationale section, the examiner provided some of the Veteran's prior medical history. Following this, he wrote, upon reviewing the medical records, it is less likely that the psychiatric disorder diagnosed with either caused by the Veteran's service-connected disabilities or aggravated by his service-connected disabilities. In a May 2020 addendum opinion, the VA examiner provided, Based upon the previous evaluations and medical records, there does not appear to be sufficient supporting evidence to allow this examiner to state that the diagnosed disorder (major depressive disorder) was aggravated beyond its natural progression by the service connected disability. From as far back as 1989, medical records indicate some recognition of depressive symptoms impacting decision making and personality concerns. Given the presence of concerns for over 30 years, and the pattern of behaviors and experiences, his depression does not appear to be caused by or aggravated beyond its natural progression by service connected disabilities. In a November 2020 private evaluation, the Veteran's physician provided, I find it is as likely as not [his] depressive disorder began during his period of active duty service and has continued uninterrupted to present to be aggravated by his service connected lumbar spine condition as well as nonservice connected conditions. It cannot be determined which of these conditions is the bigger aggravator but all work together to worsen [his] depressive disorder in tandem. The physician discussed the Veteran's familial history and events that caused his depression to worsen over the years. She then wrote, There is nothing in the record to suggest [he] was disturbed with any mental health problems prior to service. He reports a rather unremarkable childhood, had no mental health treatment or diagnosis before service, and entered the military without any reservation. According to [his] report he began to experience depression associated with his back pain while in active duty and his depression was compounded when he had a tragic near loss of his son. He was drinking heavily during this time as a coping mechanism for his depression. His chronic back pain and depression have continued to present day, records reflect, and he acknowledges his depression has been aggravated by extenuating circumstances over the years. The Board finds that the May 2015 and November 2020 private physician's and April 2020 and May 2020 examiner's medical opinions provide clear and well-reasoned explanations with supporting data, and reasoned medical explanations connecting the two. Thus, the Board finds these opinions to be adequate as well as probative. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Because the private physician's and the VA physician's opinions are specific to the Veteran's case, fully articulated, and supported by well-reasoned analyses, they are entitled to equal probative value. Accordingly, the evidence is in equipoise as to whether the Veteran's acquired psychiatric disorder, to include adjustment disorder and major depressive disorder, was proximately caused or aggravated by a service-connected disability. The claim is granted. ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bristor 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.