Citation Nr: 21029481 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 14-31 619A DATE: May 13, 2021 ORDER Entitlement to an increased rating for degenerative disc disease of the lumbar spine greater than 20 percent prior to April 11, 2019, and from July 1, 2019, through September 27, 2020, and greater than 40 percent from September 28, 2020, is denied. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected degenerative disc disease of the lumbar spine is denied. REMANDED Entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) prior to July 1, 2019, to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. Prior to April 11, 2019 and from July 1, 2019 through September 27, 2020, the Veteran's degenerative disc disease of the lumbar spine was manifested by orthopedic impairment with pain and limitation of motion most nearly approximating forward flexion to 40 degrees or better and a combined range of motion of 110 degrees or better without ankylosis or intervertebral disc syndrome (IVDS). 2. From September 28, 2020, the Veteran's degenerative disc disease of the lumbar spine has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or IVDS. 3. The Veteran's cervical spine disorder was first demonstrated many years after service, is not etiologically related to any incident of active military service, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Prior to April 11, 2019 and from July 1, 2019 through September 27, 2020, the criteria for entitlement to an increased rating greater than 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Code 5242. 2. From September 28, 2020, the criteria for entitlement to an increased rating greater than 40 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Code 5242. 3. The Veteran's cervical spine disorder was not incurred in or aggravated by active service and is not proximately due to or the result of a service-connected disability, nor may its incurrence or aggravation be presumed. 38 U.S.C. §§ 1110, 1112, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1990 to January 1992. The Veteran testified at a hearing before the undersigned Veterans Law Judge in October 2017. A transcript of that hearing is associated with the claims file. The Board has considered the Veteran's claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 1. Entitlement to an increased rating for degenerative disc disease of the lumbar spine greater than 20 percent prior to April 11, 2019 and from July 1, 2019 through September 27, 2020, and greater than 40 percent from September 28, 2020 Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where the Rating Schedule does not provide for a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for degenerative disc disease of the lumbar spine was granted in a February 1992 rating decision, and a 10 percent disability rating was assigned, effective January 16, 1992, under 38 C.F.R. § 4.71a, Diagnostic Code 5295. In a December 1998 rating decision, the Agency of Original Jurisdiction (AOJ) granted an increased rating of 20 percent, effective June 16, 1998, under Diagnostic Code 5295. In an October 2000 rating decision, the AOJ awarded a temporary total disability rating for the lumbar spine disorder based on treatment requiring convalescence, effective September 26, 2000. A 20 percent rating was assigned, effective November 1, 2000 under 38 C.F.R. § 4.71a, Diagnostic Code 5293. A July 2001 rating decision assigned another temporary total evaluation for the lumbar spine disorder, effective September 26, 2000, based upon surgical or other treatment requiring convalescence. A 20 percent rating was assigned, effective March 1, 2001, under 38 C.F.R. § 4.71a, Diagnostic Code 5293. A July 2009 rating decision denied an increased rating greater than 20 percent for the lumbar spine disorder, but reflects that the disability was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243. A July 2019 rating decision assigned a temporary total evaluation for the lumbar spine disorder based upon surgical or other treatment requiring convalescence, effective April 11, 2019. A 20 percent rating was assigned, effective July 1, 2019, under 38 C.F.R. § 4.71a, Diagnostic Code 5243. In a November 2020 rating decision, the AOJ awarded an increased rating of 40 percent for the lumbar spine disorder, effective September 28, 2020, under 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran contends that an increased disability rating greater than 20 percent is warranted for his lumbar spine disability prior to prior to April 10, 2019 and from July 1, 2019 to September 27, 2020, and that an increased rating greater than 40 percent is warranted from September 28, 2020. The Veteran's service-connected lumbar spine disability is rated under the general rating formula for diseases and injuries of the spine under Diagnostic Code 5242 for degenerative arthritis of the spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the general rating formula, a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if 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. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5242. In applying these regulations, VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS), a 40 percent evaluation is for application when there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A maximum 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past twelve months. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board notes that, effective February 7, 2021, the rating schedule for evaluating musculoskeletal disabilities was amended in parts. 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 clarify 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 regulations, as amended in February 2021, make the definition of incapacitating episodes even more restrictive than the former criteria, the Board will evaluate the thoracolumbar spine disability under the former, more liberal, criteria. After thorough review of the evidence of record, the Board concludes that the preponderance of the evidence is against the assignment of ratings higher than 20 percent prior to April 10, 2019 and from July 1, 2019 through September 27, 2020, and greater than 40 percent from September 28, 2020, for the lumbar spine disability. Prior to April 10, 2019 and from July 1, 2019 through September 27, 2020, the pertinent evidence includes a December 2011 VA examination, an August 2016 VA examination, a May 2019 VA examination, VA treatment records, and lay statements from the Veteran. The Veteran's range of motion of the thoracolumbar spine was most restricted at the August 2016 VA examination. At that time, forward flexion was measured to 60 degrees, with a combined range of motion of 160. These findings are contemplated by the current 20 percent evaluation. While the Veteran experienced pain during motion testing, there was no additional loss of motion upon repetitive testing. At no time during the claims period did the Veteran demonstrate forward flexion limited to 30 degrees or ankylosis of the spine as required for an increased 40 percent evaluation under the general rating formula. Rather, the Veteran's flexion and combined range of motion was similar or better at examinations conducted throughout the claims period, to include the December 2011 and August 2016 VA examinations. The Board notes that no range of motion findings were reported during the May 2019 VA examination because the Veteran had not yet been released from his recent lumbar spine surgery. Although the Veteran was unable to perform repetitive use testing due to pain during the December 2011 VA examination and the examiner stated that the Veteran did have functional loss and/or functional impairment of the lumbar spine, the VA examiner concluded that there was no additional limitation in range of motion. The medical evidence therefore establishes that the Veteran manifested symptoms and impairment that most nearly approximate the current 20 percent rating prior to April 10, 2019 and from July 1, 2019 through September 27, 2020. The Board has also considered the lay statements that the Veteran experienced symptoms and flare-ups that limited his ability to function. However, as noted above, the objective evidence, including the results of repetitive motion testing, does not indicate a loss of motion consistent with a higher evaluation under the general rating formula. The Board concludes that the Veteran's reported impairments were contemplated by the current 20 percent evaluation. Thus, even with consideration of all relevant functional factors, the Board finds that a rating more than 20 percent for orthopedic impairment of the lumbar spine is not warranted prior to April 10, 2019 or from July 1, 2019 through September 27, 2020. Additionally, an increased rating greater than 20 percent is not warranted under the criteria pertaining to intervertebral disc syndrome. The evidence does not show that the Veteran experienced intervertebral disc syndrome or incapacitating episodes requiring bedrest prescribed by a physician having a total duration of at least four weeks during the claims period. None of the VA examiners found that the Veteran experienced incapacitating episodes and none of the Veteran's treating physicians prescribed bedrest in response to exacerbations of back pain. The Board finds that the lumbar spine disability did not manifest incapacitating episodes having a total duration of at least four weeks prior to prior to April 10, 2019 or from July 1, 2019 through September 27, 2020. Therefore, an increased rating is also not warranted under the criteria pertaining to intervertebral disc syndrome. From September 28, 2020, an increased rating greater than 40 percent is not warranted for the Veteran's lumbar spine disability. In that regard, the evidence does not demonstrate unfavorable ankylosis of the entire thoracolumbar spine. The September 2020 VA examination reported that there was no ankylosis of the spine. With respect to intervertebral disc syndrome, there is no evidence of IVDS or that the Veteran experienced incapacitating episodes sufficient to warrant an increased evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The September 2020 VA examination report specifically notes that the Veteran did not have IVDS. Consequently, the Veteran is not entitled to a higher rating under the general rating formula for IVDS. Under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities are to be evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). While the evidence of record documents findings of right and left lower extremity radiculopathy, the Veteran is already service-connected for neuropathy affecting the femoral and sciatic nerves of both lower extremities. Accordingly, separate ratings are not warranted. In sum, the Veteran's orthopedic impairment of the service-connected lumbar spine disability is appropriately rated as 20 percent disabling prior to April 11, 2019 and from July 1, 2019 through September 27, 2020, and 40 percent disabling from September 28, 2020. The Board has considered whether there is any other schedular basis for granting higher ratings for the orthopedic impairment resulting from the Veteran's lumbar spine disability, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the grant of a higher schedular rating. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. 2. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected degenerative disc disease of the lumbar spine Service connection may be established for a disability resulting from disease or injury which was clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability which is shown to be proximately due to, the result of, or chronically aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The record establishes current diagnoses of degenerative disc disease, intervertebral disc syndrome, and spinal stenosis of the cervical spine. A current disability of the cervical spine is therefore demonstrated. However, the weight of the probative evidence of record does not show that the Veteran's cervical spine arthritis was caused or aggravated by his service-connected degenerative arthritis of the lumbar spine. The Veteran underwent a VA examination in December 2011. After reviewing the claims file and performing a physical examination, the examiner opined that the Veteran's cervical spine disorder was not proximately due to or the result of his lumbar spine disability. The examiner explained that degenerative arthritis of the lumbar spine is not a risk factor for degenerative arthritis in the cervical spine, and that the spine segments are anatomically independent of each other. The examiner noted that the cervical spine is not influenced by misalignment or degenerative changes in the lumbar region, and that the Veteran's magnetic resonance imaging (MRI) scans clearly identified changes caused by bony overgrowths and arthritis. The Veteran underwent another VA examination in May 2019. The May 2019 VA examiner also opined that the Veteran's cervical spine disorder was not proximately due to or the result of his service-connected lumbar spine disorder. The examiner noted that the cervical and lumbar spine conditions were separate and distinct; that lumbar spine disorders do not usually result in cervical spine stenosis as those disorders are usually a result of direct overuse or injury to the respective area; and that the Veteran was in his usual state of health until April 2007 when he injured his right neck after stepping off of the back of a pick-up truck, jarring his body. The examiner noted that the opinion was based upon review of the evidence in the claims file, physical examination of the Veteran, and consideration of the Veteran's lay statements. In a September 2020 opinion, the VA examiner opined that the Veteran's cervical spine disorder was not aggravated by his service-connected lumbar spine disorder, noting that the two spine disorders were in "two areas of the body" that "are not in close proximity with one another and function independently." In a January 2021 VA opinion, the examiner opined that the Veteran's cervical spine disorder was not caused or aggravated by his service-connected lumbar spine disability. The examiner explained that the medical literature did not support a conclusion that an injury to one joint would have any significant or permanent impact or aggravation on another uninjured joint or limb unless the injury resulted in major muscle or nerve damage causing partial or complete paralysis or shortening of an injured limb. The examiner acknowledged the positive medical opinion submitted by the Veteran, but explained that use of an associated body component as a result of avoiding use of a painful or limited component is a natural compensation, and that whether the associated body part is capable of the increased load is a property of the associated part. He further noted that the medical literature shows that "one joint's disease does not 'spread' to it or cause damage to it" and that the "condition of the cervical spine is due to something intrinsic to the cervical spine and not the lumbar spine." Although S.K., M.D., concluded in a December 2017 opinion that the service-connected low back problem "as likely as not" caused the current neck disorder, the only rationale provided was that "vulnerability of cervical spine may well have been due to problems in lower spine . . . ." The rationale provided the Dr. S.K. is speculative, noting only that the lower spine disability "may well" have caused a vulnerability in the cervical spine. See Morris v. West, 13 Vet. App. 94, 97 (1999) (diagnosis that appellant was "possibly" suffering from schizophrenia deemed speculative); Hogan v. Peake, 544 F.3d 1295, 1298 (Fed. Cir. 2008) (the Board may discount the value of competent medical evidence based on factors including the lack of a definitive statement as to etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Further, the Board affords more probative weight to the January 2021 VA opinion, which provided significantly more rationale and cites to medical literature in support of the opinion. Additionally, the January 2021 VA opinion was based upon a review of all evidence in the claims file, while the December 2017 opinion states that only the Veteran's VA treatment records were considered. In light of the above, the Board finds the January 2021 VA opinion to be of greater probative value. Ultimately, the weight of the probative evidence of record does not show that the Veteran's cervical spine disorder was caused or aggravated by his service-connected lumbar spine disability. The Board has also considered whether service connection is warranted for a cervical spine disorder on a direct basis. However, the record does not establish in-service incurrence, as the Veteran's service treatment records are negative for any complaints of or treatment for neck pain. Further, a May 2019 VA examiner opined that the Veteran's cervical spine disorder was not caused by or incurred during his active duty service. The examiner accurately noted that the service treatment records did not reflect complaints of neck pain during service and that no neck symptoms were documented until 2007, when the Veteran sustained an injury after jumping from a pick-up truck. The examiner also explained that the Veteran's cervical spine disorder was not incurred as a result of the in-service event which caused his service-connected lumbar spine disorder because activities which usually affect and increase the risk of developing lumbar spine conditions differ from those that cause injury to the neck, and because the Veteran had a separate and distinct injury to his cervical spine in 2007, which caused his current neck condition. Similarly, an October 2020 VA examiner concluded that the Veteran's cervical spine disorder was not related to service, noting a lack of symptoms and injuries during service and for approximately 15 years after service discharge. The October 2020 VA examiner also pointed to the 2007 "acute injury to the cervical spine" as the onset of the Veteran's cervical spine symptoms. Last, the January 2021 VA examiner found that it was less likely than not that the Veteran's cervical spine disorder was caused by or incurred during his active duty service based upon a lack of in-service symptoms and within one year of service discharge. The Veteran did not provide any lay statements suggesting that he experienced neck pain continuously since service discharge. Additionally, there is no competent and credible evidence linking the Veteran's cervical spine disorder to any incident of service or to a service-connected disability. Therefore, in-service incurrence of the cervical spine disorder is not established and the claim for service connection is denied. 38 U.S.C. § 5107(b). Service connection is possible for arthritis on a presumptive basis as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309, but the condition must manifest to a compensable degree within one year of separation. The absence of any clinical evidence for many years after service weighs the evidence against a finding that the Veteran's cervical spine arthritis was present in service or the year immediately after. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran also did not contend that his cervical spine arthritis was present in service or in the year immediately after his discharge. Therefore, service connection on a presumptive basis is not warranted for degenerative disc disease of the cervical spine. Finally, service connection is possible for arthritis under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, as noted above, the Veteran did not report experiencing continuous symptoms of neck pain since service, and the first documented evidence of cervical spine symptoms is shown in 2007, after the Veteran feel off of his pick-up truck, 15 years after service discharge. In light of the evidence described above, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a cervical spine disorder. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that the evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). REASONS FOR REMAND Entitlement to a TDIU prior to July 1, 2019, to include on an extraschedular basis, is remanded. The Veteran's claim for entitlement to a TDIU was raised in connection with his October 2011 claim for an increased rating for a lumbar spine disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU was awarded by the Agency of Original Jurisdiction (AOJ) in a November 2020 rating decision, effective July 1, 2019. The Veteran does not meet the schedular rating criteria for a TDIU under 38 C.F.R. § 4.16 (a) prior to July 1, 2019. However, there is medical evidence of record suggesting that the Veteran was unemployable prior to July 1, 2019. In that regard, an October 2017 medical opinion from D.S.-C., DNP CRNP, states that the Veteran was "not able to secure gainful employment" due, in part, to his service-connected lumbar spine disability. In light of the evidence of record suggesting that the Veteran was unemployable prior to July 1, 2019 based on his service-connected lumbar spine disability, the Board finds that the issue of entitlement to a TDIU prior to July 1, 2019 on an extraschedular basis has been raised. Accordingly, the AOJ must refer the Veteran's claim to the VA Director of Compensation and Pension Services for an opinion as to entitlement to a TDIU on an extraschedular basis prior to July 1, 2019. (Continued on the next page) The matters are REMANDED for the following action: Refer the issue of entitlement to a TDIU prior to July 1, 2019 to the VA Director of Compensation and Pension Services for extraschedular consideration in accordance with 38 C.F.R. § 4.16(b). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.