Citation Nr: 21029662 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 15-12 134A DATE: May 14, 2021 ORDER An initial disability rating greater than 10 percent prior to January 17, 2015 and greater than 20 percent on and thereafter for service-connected degenerative disc disease of the lumbar spine with intervertebral disc syndrome (IVDS) is denied. REMANDED Service connection for a right knee disability is remanded. Service connection for a right foot disability is remanded. An initial disability rating greater than 50 percent for posttraumatic stress disorder (PTSD) prior to January 27, 2015 is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 27, 2015 is remanded. FINDINGS OF FACT 1. Prior to January 17, 2015, the Veteran's low back disability was not manifested by 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 not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or IVDS with incapacitating episodes having a total duration of at least 2 weeks during any 12 month period. 2. From January 17, 2015, the Veteran's lumbar spine disability has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or IVDS with incapacitating episodes having a total duration of at least 4 weeks during any 12 month period. CONCLUSION OF LAW The criteria for an initial disability rating greater than 10 percent prior to January 17, 2015 and greater than 20 percent on and thereafter for degenerative disc disease of the lumbar spine with IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 1982 to September 1985. In June 2019, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In December 2019, the Board dismissed other issues then on appeal and remanded the remaining issues for further development and adjudication, to include issuance of a statement of the case on the issue of an earlier effective date for the award of service connection for PTSD. In January 2021, the Agency of Original Jurisdiction (AOJ) issued a statement of the case on the earlier effective date issue. In February 2021, the Veteran filed a substantive appeal on which he requested a Board hearing by video-conference. Thus, that issue will be the subject of a later decision after the requested Board hearing has been provided. Increased RatingLumbar Spine Disability Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's degenerative disc disease of the lumbar spine with IVDS has been rated under Diagnostic Code 5243. 38 C.F.R. § 4.71a. The following ratings are available for Diagnostic Code 5243 under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: 100 percent for unfavorable ankylosis of the entire spine; 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; 40 percent for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; and 20 percent 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 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. 38 C.F.R. § 4.71a. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Plate V, 38 C.F.R. § 4.71a. Under Diagnostic Code 5243 for IVDS, such disability may also be rated under The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 20 percent rating when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) defines an incapacitating episode 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. 38 C.F.R. § 4.71a. Effective February 7, 2021, VA revised the regulations pertaining to the evaluation of disabilities of the musculoskeletal system, including those of the spine. 85 Fed. Reg. 76460 (Nov. 30, 2020). While a change was made to Diagnostic Code 5243 for IVDS, it was only to clarify that this diagnostic code would only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root, and that Diagnostic Code 5242 would be assigned for all other disc diagnoses. Thus, with no substantive changes in the evaluation of the disability itself, the revision has no effect in this case. Effective August 14, 2012, the Veteran's degenerative disc disease of the lumbar spine with IVDS has been rated 10 percent. From January 17, 2015, his disability has been rated 20 percent. At a July 2013 VA examination, the Veteran reported low back pain that worsened with prolonged sitting and standing. He denied flare-ups. Range of motion testing revealed forward flexion to 70 degrees, extension to 25 degrees, right and left lateral flexion to 25 degrees each, and right and left lateral rotation to 30 degrees each. Range of motion remained the same on repetitive use testing. The examiner indicated that there was functional loss due to less movement than normal, excess fatiguability, pain on movement, and interference with sitting and standing. The examiner indicated that there was no guarding or muscle spasm of the back. The examiner indicated that the Veteran has IVDS but has not had any incapacitating episodes in the past 12 months. The examiner indicated that the Veteran's lumbar spine disability does not impact his ability to work. VA treatment records show complaints of low back pain but not complete range of motion or other pertinent findings. Given the above, prior to January 17, 2015, the Veteran's lumbar spine disability had not resulted in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Despite the pain, he was able to forward flex to 70 degrees, even after repetition. Thus, even considering functional loss due to pain and other factors, the Veteran's lumbar spine disability had not more nearly approximated forward flexion of the thoracolumbar spine to greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The evidence of record simply does not support such findings. There is also no evidence that his disability had been manifested by 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 is competent to give evidence about observable symptoms such as low back pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, the objective evidence fails to show that he had the necessary limitation of range of motion to warrant a higher 20 percent rating. Thus, a higher rating based on limitation of motion is not warranted. There is also no evidence that the Veteran's lumbar spine disability had resulted in IVDS with incapacitating episodes having a total duration of at least 2 weeks during any 12-month period. He did not report having incapacitating episodes at the examination, and the other medical evidence of record does not show any such episodes. A higher evaluation based on incapacitating episodes is not warranted. Accordingly, the Board concludes that an initial disability rating greater than 10 percent prior to January 17, 2015 for the service-connected degenerative disc disease of the lumbar spine with IVDS is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). At a January 17, 2015 VA examination, the Veteran reported low back pain but denied flare-ups. Range of motion testing revealed forward flexion to 60 degrees, extension to 20 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, and right and left lateral rotation to 25 degrees each. Range of motion remained the same on repetitive use testing. The examiner indicated that pain would significantly limit functional ability with repeated use over a period of time or during a flare-up and estimated range of motion during such times as forward flexion to 50 degrees, extension to 20 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, and right and left lateral rotation to 25 degrees each. The examiner indicated that the Veteran has IVDS but has not had any incapacitating episodes in the past 12 months. The examiner indicated that the Veteran's lumbar spine disability results in mild limitations in his ability to lift and carry heavy objects repeatedly. At a January 2021 VA examination, the Veteran reported intermittent low back pain but denied flare-ups. Range of motion testing revealed forward flexion to 85 degrees, extension to 25 degrees, right and left lateral flexion to 30 degrees each, and right and left lateral rotation to 30 degrees each. Repetitive use testing revealed no additional loss of function or range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over a period of time or during a flare-up. The examiner indicated that the Veteran does not have IVDS with incapacitating episodes. The examiner indicated that the Veteran's lumbar spine disability does not impact his ability to work. VA treatment records show complaints of low back pain but not complete range of motion or other pertinent findings. Given the above, from January 17, 2015, the Veteran's lumbar spine disability has not resulted in forward flexion of the thoracolumbar spine to 30 degrees or less. Despite the pain, he was able to forward flex to at least 60 degrees, even after repetition. Even the January 2015 examiner's estimated range of motion with repeated use over a period of time or during a flare-up revealed forward flexion to 50 degrees. There is also no evidence of ankylosis. Thus, even considering functional loss due to pain and other factors, the Veteran's lumbar spine disability has not more nearly approximated forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The evidence of record simply does not support such a finding. The Veteran is competent to give evidence about observable symptoms such as low back pain. Layno, 6 Vet. App. 465. However, the objective evidence fails to show that he has the necessary limitation of range of motion to warrant a higher 40 percent rating. A higher rating based on limitation of motion is thus not warranted. There is a question as to whether the Veteran actually has IVDS. Regardless, there is no evidence that his lumbar spine disability has resulted in incapacitating episodes having a total duration of at least 4 weeks during any 12-month period. The Veteran did not report having incapacitating episodes at the examinations, and the other medical evidence of record does not show any such episodes. Thus, a higher evaluation based on incapacitating episodes is not warranted. Accordingly, the Board concludes that a disability rating greater than 20 percent from January 17, 2015 for the service-connected lumbar spine disability is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. In reaching these decisions, the Board has also considered whether separate compensable ratings are warranted for other neurological abnormalities (e.g., radiculopathy, or bowel or bladder abnormalities) associated with the service-connected lumbar spine disability. However, no such abnormalities associated with this service-connected disability have been shown. Accordingly, separate compensable ratings based on such associated problems are not warranted. REASONS FOR REMAND Service connection for a right knee disability In the December 2019 remand, the Board indicated that the Veteran has a right knee disability (as VA treatment records show mild narrowing of the medial compartment on August 2011 X rays). The Board asked for a relevant examination, to include an opinion as to whether his right knee disability is related to service, to include parachute jumps. At a January 2021 VA examination, the Veteran reported a history of intermittent right knee pain that he related to jumping out of airplanes. Examination revealed no abnormalities, and the examiner indicated that the Veteran had a normal right knee. In a separate medical opinion, the examiner stated that there is no diagnosis of a right knee disability, that the Veteran's symptoms were subjective, and that a nexus is not established. However, as previously noted herein, the record had already established the presence of current disability. Thus, the AOJ should obtain a supplemental opinion that addresses the Veteran's assertions and the radiographic evidence of a current right knee disability. Service connection for a right foot disability Also in the prior remand, the Board acknowledged the Veteran's testimony that his right great toe would cramp up in service especially during distance marches and that VA treatment records show that he had an arthrodesis of his right great toe. [VA treatment records also show a diagnosis of hallux valgus of the right foot.] The Board requested an examination to obtain an opinion as to whether his right foot disability is related to service. At the January 2021 VA examination, the Veteran reported a history of intermittent right foot pain that he related to ruck marches in service. The examiner diagnosed post-surgical hallux valgus of the right foot. In a separate medical opinion, the examiner stated that hallux valgus is a result of tight shoes or bone deformity and not the result of a particular activity. The examiner then opined that the Veteran's hallux valgus was not incurred in, or caused by, service. While not specifically asserted by the Veteran, the record reasonably raises the question of whether the service-issued bootstight or otherwise ill-fittingled to his hallux valgus, especially as service treatment records show that he had calluses between his toes in November 1982 and corns between his toes in December 1984. Thus, the AOJ should obtain a supplemental opinion that addresses these matters. Initial disability rating greater than 50 percent for PTSD prior to January 27, 2015 Also in the prior remand, the Board requested that the AOJ obtain any outstanding VA and private medical records as well as an opinion from a qualified examiner of the symptoms associated with the Veteran's service-connected PTSD prior to January 27, 2015. The examiner was asked to determine whether, prior to January 27, 2015, the Veteran's substance abuse and associated inpatient treatment can be extracted from his PTSD symptoms, i.e., whether his PTSD caused his substance abuse relapses or whether these conditions are intertwined in nature so that distinguishing the symptoms of one diagnosis is not possible. The examiner was also asked to discuss the impact of the Veteran's PTSD symptoms on his ability to obtain and maintain gainful employment prior to January 27, 2015. After obtaining all adequately identified medical records pertinent to the appeal period, the AOJ provided the Veteran with a new examination in September 2020. The examiner stated that the Veteran was previously diagnosed with PTSD and alcohol use disorder, but, as he has not used alcohol in the past 3 years, the latter diagnosis was being removed. However, the examiner did not fully address the questions posed by the Board. Thus, the AOJ should obtain a supplemental opinion that addresses the above, in compliance with the prior remand. TDIU prior to January 27, 2015 As the remand of the above claims could affect the claim for a TDIU prior to January 17, 2015, the Board finds that the claims are inextricably intertwined and that a decision on the TDIU claim at this time would be premature. Accordingly, these matters are REMANDED for the following action: 1. Obtain a supplemental opinion from the examiner who conducted the January 2021 VA knee examination. The examiner is advised that the presence of a current right knee disability has been established, as August 2011 VA X rays show mild narrowing of the right medial compartment. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee disability onset during active service or within one year thereafter, or is otherwise causally related to such service, to include parachute jumps. In answering this question, the examiner should discuss the Veteran's service treatment records and VA medical recordsand the Veteran's lay statements regarding the history and chronicity of symptoms. Complete rationale for all conclusions should be provided. 2. Also obtain a supplemental opinion from the examiner who conducted the January 2021 VA foot examination. The examiner is advised that service treatment records show that the Veteran had calluses in November 1982 and corns in December 1984. The examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right hallux valgus onset during active service or within one year thereafter, or is otherwise causally related to such service, to include as due to wearing service-issued boots especially on distance marches. In answering this question, the examiner should discuss the Veteran's service treatment records and VA medical recordsand the Veteran's lay statements regarding the history and chronicity of symptoms. The examiner should provide a complete rationale for all conclusions. 3. Obtain a supplemental opinion from the examiner who conducted the September 2020 VA PTSD examination. The examiner is asked to render an opinion on the appropriate symptoms associated with the Veteran's service-connected PTSD prior to January 27, 2015. The examiner should determine whether, prior to January 27, 2015, the Veteran's substance abuse and associated inpatient treatment can be extracted from his PTSD symptoms. In other words, did the Veteran's PTSD cause his substance abuse relapses or are these conditions intertwined in nature so that distinguishing the symptoms of one diagnosis is not possible. Also, the examiner should also discuss the impact of the Veteran's PTSD symptoms on his ability to obtain and maintain gainful employment prior to January 27, 2015. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.