Citation Nr: 21030011 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 13-20 036 DATE: May 17, 2021 ORDER A disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine status post laminectomy and decompression surgeries with scar is denied. REMANDED Entitlement to service connection for a right knee disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for diabetes mellitus (DM), as due to chemical exposure, is remanded. Entitlement to service connection for ischemic heart disease (IHD), as due to chemical exposure, is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's lumbar spine degenerative disc disease status post laminectomy and decompression surgeries with scar was productive of forward flexion limited to 30 degrees or less, but unfavorable ankylosis of the entire thoracolumbar spine was not shown. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine status post laminectomy and decompression surgeries with scar have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active naval service from October 1963 to May 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2012 and September 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran was scheduled for a hearing before a member of the Board on May 14, 2019. However, the Veteran failed to appear. Without good cause shown, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (e). This case was previously before the Board in July 2015, at which time the issues currently on appeal were remanded for additional development. It has since been returned to the Board for appellate review. In November 2019, the Veteran's former attorney filed a motion to withdraw representation because of factors which would make continuation of representation impossible, impractical, or otherwise unethical. The Veteran was notified of the motion to withdraw and, to date, has not responded or objected. Good cause being shown, the motion is granted. See 38 C.F.R. § 20.608. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. 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. §§ 4.7 and 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has contended that his lumbar spine degenerative disc disease status post laminectomy and decompression surgeries with scar (hereinafter, "back disability") is worse than that contemplated by the currently assigned rating. In October 2010, the Veteran was afforded a VA examination. He reported constant and severe pain, stiffness, fatigue, spasms, decreased motion, and paresthesia. He described flare-ups of pain. He stated that his back pain was exacerbated by physical activity. He denied any incapacitation in the past twelve months. He could not lift anything due to weakness. He was limited in walking and required a cane. Upon physical evaluation, flexion was 20 degrees, extension was 0 (zero) degrees, and bilateral lateral flexion and rotation were 5 degrees. There was objective evidence of pain at all ranges of motion. Following repetitive use, he did not have any additional loss of function or range of motion. Further, the examiner indicated that pain, weakness, fatigue, lack of endurance or incoordination did not additionally limit the Veteran's functional ability after repeated use. There was no evidence of guarding, muscle spasm, muscle weakness, muscle atrophy, ankylosis, or radiculopathy. The Veteran did have tenderness along his spine. Additionally, the examiner observed that the Veteran had a post-surgical scar located over the lumbar spine which was unremarkable. The Veteran had a VA examination in October 2011. He reported constant and severe pain, stiffness, fatigue, spasms, and decreased motion. He described flare-ups of pain. Occasionally, he had to lay down because of the pain. He stated that his back pain was exacerbated by physical activity. He denied any incapacitation in the past twelve months. He could not lift more than ten pounds and was limited in walking. Upon physical evaluation, flexion was 80 degrees, extension was 20 degrees, and bilateral lateral flexion and rotation were 20 degrees. There was objective evidence of pain at all ranges of motion. Following repetitive use, he did not have any additional loss of function or range of motion. Further, the examiner indicated that pain, weakness, fatigue, lack of endurance or incoordination did not additionally limit the Veteran's functional ability after repeated use. There was no evidence of tenderness, guarding, muscle spasm, muscle weakness, muscle atrophy, ankylosis, or radiculopathy. Additionally, the examiner observed that the Veteran leaned slightly forward and required a cane. The Veteran's post-surgical scar was unremarkable. In March 2018, the Veteran was provided an additional VA examination. The examiner rendered an additional diagnosis for intervertebral disc syndrome (IVDS). The Veteran reported that his back disability was significantly worse. He described flare-ups pain and radiating pain. He experienced episodes of bedrest due to severe pain. He was unable to walk without a walker or occasionally perform activities of daily living. Upon physical evaluation, flexion was 30 degrees, extension was 5 degrees, bilateral lateral flexion were 5 degrees, and bilateral lateral rotation were 10 degrees. There was objective evidence of pain at all ranges of motion, including passive range of motion, which contributed to functional loss. There was evidence of pain with weight bearing and non-weight bearing. Following repeated use, there was no additional loss of function and range of motion. Pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability with repeated use over time and during a flare-up. There was evidence of tenderness. The Veteran had guarding and muscle spasm resulting in abnormal gait or spine contour. Additional factors contributing to the Veteran's back disability include less movement that normal, weakened movement, disturbance of locomotion, and interference with sitting and standing. There was no evidence of ankylosis. The Veteran's IVDS was not incapacitating. A review of medical records showed that the Veteran has received additional treatment for a back disability. However, there is no indication from the record that his symptoms are manifestly different than those reported above. Based on the foregoing evidence, the Board finds a higher rating is not warranted throughout the appeal period. In this regard, there is no indication from the record that the Veteran has or has had unfavorable ankylosis of the spine. Although the Veteran has IVDS, it is not considered incapacitating. 38 C.F.R. § 4.71a. Further, his post-surgical scar was asymptomatic. 38 C.F.R. § 4.118, Diagnostic Codes 7804 and 7805. The Board acknowledges the Veteran's severe pain and limited mobility due to pain; however, pain does not warrant a higher rating unless there is functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Moreover, the effect of the Veteran's back pain is already contemplated by the assigned rating. Therefore, a rating in excess of 40 percent for a back disability with scar is not warranted. 38 U.S.C. § 5107(b) (2020). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board acknowledges the Veteran's sincere belief that his back symptomatology is more severe than as reflected by the currently assigned rating, and notes he is competent to describe his symptoms and their effects on his daily life and occupation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board finds the medical evidence in which professionals with medical expertise examined the Veteran, completed necessary testing, acknowledged his reported symptoms, and described the manifestations of his back disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of the disability. In sum, the Board finds that the preponderance of the evidence is against an increased rating for the Veteran's back disability; thus, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra. The claim is denied. REASONS FOR REMAND Service Connection Right and Left Knee Disabilities The Veteran has contended that he developed bilateral knee disabilities as a result of his service-connected back disability and/or service-connected left and right hip strain. Specifically, he explained that he placed greater pressure on his knees because of his back and/or hips, causing disabilities to occur. In March 2017, the Veteran was afforded a VA examination. However, the resulting opinion did not address secondary service connection opinion as it pertains to the Veteran's service-connected left and right hip strain. Further, the examiner did not provide the requisite secondary aggravation opinions. Therefore, the opinions are inadequate for adjudication purposes and a remand is warranted for addendum opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). IHD and DM The Veteran has asserted that his IHD and DM are related to his active service. Specifically, he reported that he was exposed to herbicides and hazardous material such as benzene and methyl ethyl ketone (MEK) while serving aboard the U.S.S. America from February to December 1968. In March and April 2017, a VA examiner opined that the Veteran's IHD and DM were less likely than not incurred in or caused by his active service, to include exposure to herbicides, benzene, and MEK. The examiner stated that he reviewed MEK and benzene effect on human health and found IHD and DM were not listed. The Board finds that the opinions are inadequate for adjudication purposes. In this regard, the examiner's opinions are not supported by a sufficient rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion); Barr, supra. As such, a remand is warranted for addendum VA medical opinions. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Provide the claims file to a VA examiner with sufficient expertise for an addendum opinion to determine the nature and etiology of the Veteran's right and left knee disabilities. The claims file must be made available to and reviewed by the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the opinion. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's right and left knee disabilities were caused or aggravated by his service-connected a) right hip strain; b)left hip strain; and c) back disability. The examiner is advised that aggravation is defined as a chronic worsening of the underlying condition rather than a temporary flare-up of symptoms. The examiner is advised that both causation and aggravation must be addressed. The rationale for all opinions expressed must be provided. 3. Provide the claims file to a VA examiner with sufficient expertise for an addendum opinion to determine the nature and etiology of the Veteran's ischemic heart disease. The claims file must be made available to and reviewed by the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the opinion. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present heart disease is etiologically related to the Veteran's active service, to include exposure to benzene and/or methyl ethyl ketone. The rationale for all opinions expressed must be provided. 4. Provide the claims file to a VA examiner with sufficient expertise for an addendum opinion to determine the nature and etiology of the Veteran's diabetes mellitus. The claims file must be made available to and reviewed by the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the opinion. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present diabetes mellitus is etiologically related to the Veteran's active service, to include exposure to benzene and/or methyl ethyl ketone. The rationale for all opinions expressed must be provided. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.