Citation Nr: 21028330 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 06-34 607 DATE: May 11, 2021 ORDER Entitlement to rating in excess of 40 percent for degenerative disc and joint disease of the lumbar spine, from May 3, 2007 and continuing thereafter, is denied. REMANDED Entitlement to rating in excess of 20 percent for degenerative disc and joint disease of the lumbar spine, prior to May 3, 2007, is remanded. Entitlement to service connection for headaches is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT For the period from May 3, 2007, the Veteran's degenerative disc and joint disease of the lumbar spine has been manifested by forward flexion of the thoracolumbar spine of 20 degrees, without ankylosis or intervertebral disc syndrome (IVDS). CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for the Veteran's service-connected degenerative disc and joint disease of the lumbar spine, from May 3, 2007, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1969 to February 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from November 2005, June 2007, and June 2008 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board in January 2012 and May 2018. The Veteran's claims were remanded for additional development. The case is now again before the Board for further appellate action. In December 2020, the Veteran testified before the undersigned Veterans Law Judge, including as to the issue of entitlement to an increased rating for his service-connected back disability. The Veteran also previously provided testimony at a hearing in September 2011 before a second Veterans Law Judge of the Board. Transcripts of these hearings are of record. In March 2021 correspondence, the Veteran was afforded the opportunity to testify at a hearing before a third Veterans Law Judge who would also participate in deciding the appeal. See 38 U.S.C. § 7102; 38 C.F.R. § 20.707; Arneson v. Shinseki, 24 Vet. App. 379 (2011). He was afforded 30 days to provide a response indicating his desire to appear at a hearing before a third Veterans Law Judge. In this regard, he was advised that if a response was not received within the allotted 30 days, the Board would assume that he did not want a third hearing and would proceed accordingly. No response was received from the Veteran, and thus, a third hearing is not warranted. The Board notes that, in a June 2019 rating decision, the RO granted service connection for the Veteran's right and left shoulder disabilities. As these issues on appeal were granted, the issues are no longer before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Entitlement to rating in excess of 40 percent for degenerative disc and joint disease of the lumbar spine, from May 3, 2007 and continuing thereafter, is denied. In June 2005, the Veteran filed a claim for an increased rating for his service-connected back disability. By rating action of November 2005, the RO denied an increase in excess of 20 percent. By rating action of June 2007, the RO granted an increased rating of 40 percent for the Veteran's back disability, effective May 3, 2007. The Veteran contends that his back disability is more disabling than reflected by the current percent disability rating assigned. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999), Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's degenerative disc and joint disease of the lumbar spine has been rated under Diagnostic Code 5243, intervertebral disc syndrome (IVDS). 38 C.F.R. § 4.71a, Schedule of ratings musculoskeletal system. During the pendency of the appeal, VA promulgated new regulations governing ratings for musculoskeletal system, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). The rating criteria for the spine were amended. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to make clear that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242. As the evidence shows that the Veteran's current disability involves degenerative arthritis of the thoracolumbar spine without IVDS, the Board finds that Diagnostic Code 5242 for degenerative arthritis of the spine is more appropriate for evaluating his thoracolumbar spine disability. Under the General Rating Formula, which include criteria for both Diagnostic Codes 5242 and 5243, a 10 percent rating is warranted when the forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine is 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 when forward flexion of the thoracolumbar spine 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, 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 assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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. 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). In May 2018, the Board found that the Veteran's prior VA back examinations were inadequate and remanded the Veteran's increased rating claim for a new VA back examination that complies with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016). After the claim was remanded to the RO, the Veteran was provided a VA examination in March 2019. The Board finds that the March 2019 examination was inadequate as the examiner failed to estimate the degree of additional range-of-motion loss during flare-ups or after repeated use. If an examination does not take place during a flare-up or after repeated use, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran's lay statements. An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or after repeated use will be considered inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). There is no indication that the March 2019 examiner made any attempt to ascertain adequate information from relevant sources to provide the requested opinions. The Veteran was provided another VA examination of his thoracolumbar spine in June 2019. He was diagnosed with degenerative arthritis of the spine. The Veteran reported constant lower back pain that worsens with limited physical activity. The Veteran reported flare-ups of the back as increased lower back pain with prolonged sitting, standing, walking, bending, and lifting. He experienced flare ups two to three times a week. A review of range of motion testing showed forward flexion of 0 to 25 degrees, extension from 0 to 10 degrees, right lateral flexion from 0 to 25 degrees, left lateral flexion from 0 to 25 degrees, right lateral rotation from 0 to 25 degrees, and left lateral rotation from 0 to 25 degrees. The examiner reported that pain was noted on all movements during the examination that resulted in functional loss. The functional loss was described as decreased range of motion that interfered with bending and lifting. The Veteran was able to perform repetitive-use testing with at least three repetitions with no functional loss. The examination was not conducted immediately after repetitive use over time. The examiner stated that pain, fatigue, and weakness caused functional loss with repetitive use over time. He estimated the range of motion with repetitive use over time as the following: forward flexion of 0 to 20 degrees, extension from 0 to 7 degrees, right lateral flexion from 0 to 20 degrees, left lateral flexion from 0 to 20 degrees, right lateral rotation from 0 to 20 degrees, and left lateral rotation from 0 to 20 degrees. The examination was not conducted during a flare-up. The examiner stated that pain, fatigue, and weakness caused functional loss with flare-ups. He estimated the range of motion during flare-ups was the following: forward flexion of 0 to 20 degrees, extension from 0 to 7 degrees, right lateral flexion from 0 to 20 degrees, left lateral flexion from 0 to 20 degrees, right lateral rotation from 0 to 20 degrees, and left lateral rotation from 0 to 20 degrees. The examiner reported that the Veteran did not have IVDS of the thoracolumbar spine. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The examiner concluded that the Veteran's back disability impacted his ability to work. The impact was described as increased lower back pain with prolonged sitting, standing, walking, bending, and lifting. After consideration of the entire record and relevant law, the Board finds that a rating in excess of 40 percent for the Veteran's service-connected cervical spine disability under Diagnostic Code 5242 is not warranted. During the Veteran's June 2019 VA examination, range of motion testing reflected forward flexion of the Veteran's thoracolumbar spine of 0 to 25 degrees. The examiner stated that pain, fatigue, and weakness caused functional loss after repetitive use and during flare-ups, which was estimated in terms of range of motion as flexion of 0 to 20 degrees. However, the VA examiner found that the Veteran did not have ankylosis or IVDS of the thoracolumbar spine. The Board had considered the Veteran's lay statements of record that he experienced increased pain due to his spine disability. The Veteran is clearly competent to report observable symptomatology. However, as to the specific issue in this case, questions of nature and medical severity fall outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the current severity of the Veteran's spine disability is a matter suited to the realm of medical expertise. As such, to the extent the Veteran is addressing questions of the medical nature and severity of his spine disability, the Board finds that his statements are not competent lay evidence. Notwithstanding, the probative medical evidence of records outweighs the Veteran's lay statements. In consideration of the above, the Board finds that the preponderance of the evidence weighs against a disability rating in excess of 40 percent for degenerative arthritis of the spine from May 3, 2007. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to an increased rating as described above, is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to rating in excess of 20 percent for degenerative disc and joint disease of the lumbar spine, prior to May 3, 2007, is remanded. In June 2005, the Veteran filed a claim for an increased rating for his service-connected back disability. By rating action of November 2005, the RO denied an increase in excess of 20 percent. By rating action of June 2007, the RO granted an increased rating of 40 percent for the Veteran's back disability, effective May 3, 2007. The Veteran contends that, prior to May 3, 2007, his back disability was more disabling than reflected by the current percent disability rating assigned. The Veteran was afforded VA examination of his thoracolumbar spine in June 2005. The Veteran reported having daily flare-ups in which his pain gets as high as 8 to 9 on a 10-point pain scale. The Veteran reported his flare-ups were precipitated by prolonged sitting, bending, and moving that put pressure and stress on his lower back. The Board finds that the June 2005 examination was inadequate as the examiner failed to estimate the degree of additional range-of-motion loss during flare-ups. If an examination does not take place during a flare-up, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran's lay statements. An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups will be considered inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). There is no indication that the June 2005 examiner made any attempt to ascertain adequate information from relevant sources to estimate the degree of additional range-of-motion loss during flare-ups. The examination also not comply with the holding of the United States Court of Appeals for Veterans Claims in Correia v. McDonald, 28 Vet. App. 158 (2016), which held that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. The examiner failed to include range of motion testing in passive motion, weight-bearing, and non-weight-bearing circumstances. In consideration of the inadequacies of the June 2005 VA examination, the Board finds that a remand is warranted for a retrospective opinion, if possible, as to the severity of the Veteran's service-connected spine disability prior to May 3, 2007. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. 2. Entitlement to service connection for headaches is remanded. In May 2018, the Board found that a September 2016 VA examination to be inadequate. Therefore, the Board remanded the Veteran's service connection claim for headaches for an addendum opinion to provide more thorough opinion on the etiology of the Veteran's history of headaches. After the claim was remanded to the RO, the Veteran was provided a medical opinion in March 2019. The Veteran was diagnosed with lumbosacral strain, degenerative arthritis of the spine and intervertebral disc syndrome. The examiner opined that it is less likely as not that the Veteran's headaches had their onset or were otherwise related to his active duty service. The examiner's rationale stated that the onset of the Veteran's headaches was in 1999, almost three decades after his separation from service. The examiner stated that there is no direct or indirect relationship between Veteran's headaches in 1999 and any of the service events or activities. The examiner opined that it is less likely as not that the Veteran's headaches were caused by his service-connected low back disability. As rationale, the examiner stated there is no plausible medical nexus between the condition headaches and lumbar degenerative disc disease/IVDS. The examiner opined that it is less likely as not that the Veteran's headaches were aggravated by his service-connected low back disability. As rationale, the examiner stated there is no evidence in the medical file that Veteran's headaches were permanently altered, accelerated, or in any way adversely impacted by his low back disability. The examiner reported that the Veteran's treating neurologist described in his November 20, 2018 progress notes that the Veteran had tension type headaches requiring no specific medical interventions and made no connection between the headaches and the Veteran's back condition. Although the examiner reported that the onset of the Veteran's headaches was in 1999, the Veteran's claim file includes several records indicating an earlier onset. At his September 2011 Board hearing, the Veteran testified that he probably started experiencing migraine headaches after being hit by a truck in service. A July 1984 Social Security Administration (SSA) disability record reported the Veteran suffered from constant headaches. He reported that the pinched nerves in his neck and shoulders are painful and were constantly giving him headaches. An October 1984 EEG was conducted due to the Veteran's headaches. A June 1985 VA medical record reported that the Veteran complained of experiencing headaches. A June 1985 discharge summary from Riverside Methodist Hospital reported that the Veteran's past medical history was positive for migraine headaches. An October 1986 Social Security Administration record documented the Veteran's report that he stopped working in July 1984 due to back pain and severe migraine headaches. Because the March 2019 examiner's opinion was at least based in part on his conclusion that the onset of the Veteran's headaches was in 1999, the Board finds the examiner's opinion is inadequate, as the record shows the onset of the Veteran's headaches at a much earlier date. A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, a remand is warranted to obtain an addendum opinion that considers the complete history of the Veteran's headaches to fully address the etiology. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268 (1998). By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. 3. Entitlement to a TDIU due to service-connected disabilities is remanded. The July 2018 Board decision remanded the Veteran's claim for TDIU as being inextricably intertwined with the Veteran's service connection claim for headaches and increased rating claims for his service-connected back disability. Once again, the TDIU claim is remanded as intertwined with the Veteran's claims remanded herein. As such, the claim for a TDIU must be readjudicated on remand following the adjudication of the other claims remanded by the Board. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. Obtain an addendum retrospective medical opinion from the examiner who conducted the June 2019 VA back examination, if available, or another qualified medical professional. The examiner must review the entire claims file, to include this remand. 4. If possible, the examiner should provide a retrospective opinion regarding functional limitations of the Veteran's lumbar spine disability due to repetitive use and flare ups prior to May 3, 2007 based on the Veteran's lay statements of experienced symptomatology. 5. The examiner should also address, if possible, whether joint testing of the Veteran's thoracolumbar spine would have shown objective evidence of pain in passive motion and in non-weight-bearing motion. 6. If it is not possible to provide a retrospective opinion 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. 7. Return the claims file, including a copy of this remand, to the VA examiner who provided the March 2019 medical opinions, or to another appropriate VA examiner if that individual is unavailable, to provide an addendum opinion on the etiology of the Veteran's headaches. The Veteran's claims file, to include a copy of the remand, must be made available to the examiner along with any other information the medical professional deems pertinent. Any indicated evaluations, studies, and tests should be conducted. If the examiner determines that an addendum opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate examination. Based on the examination, if deemed necessary, and review of the record, the examiner is requested to address the following questions: (a.) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's diagnosed headaches had their onset in or were otherwise related to his active duty service, to include an October 1971 truck accident or a January 1970 fist fight? (b.) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's diagnosed headaches were caused by his service-connected low back disability, right shoulder disability, or left shoulder disability? (c.) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's diagnosed headaches were aggravated by his service-connected low back disability, right shoulder disability, or left shoulder disability? 8. Detailed rationale is requested for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 9. After the development described above, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of TDIU. If any determination remains unfavorable to the Veteran, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore, Associate 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.