Citation Nr: 21032715 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 14-04 526 DATE: May 27, 2021 ORDER Entitlement to a rating in excess of 20 percent for a low back disability is denied. REMANDED Entitlement to service connection for loss of balance secondary to tinnitus is remanded. FINDING OF FACT Throughout the appeal period the Veteran's forward flexion has been limited to 45 degrees at the worst, even when considering functional loss due to repetitive use over time or during flareups, and there is no evidence of ankylosis of the spine. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 20 percent for a low back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1989 to August 1989 and from October 1992 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Veteran testified before the undersigned in a video-conference hearing. A transcript of the hearing has been associated with the claims file. In December 2017, the Board, in relevant part, remanded the issues of entitlement to an increased rating for a low back disability and entitlement to service connection for an acquired psychiatric disorder, to include depression; loss of balance; and sleep apnea for further development. As to entitlement to an increased rating for the low back, the Board finds that the January 2020 examination was adequate. Thus, the Board determines that there has been substantial compliance with the December 2017 remand directives as to this claims, and further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). As to entitlement to service connection for loss of balance, the Board finds that the January 2020 examination did not substantially comply with the December 2017 remand directives requesting an adequate medical opinion. To the extent that the requested development was not substantially complied with, this claim is not ready for appellate review. The Board also notes that in February 2020, the RO granted entitlement to service connection for depression and sleep apnea. As these grants represent a full grant of benefits sought on appeal, these service connection claims are no longer before the Board. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). Lastly, in August 2019, the Veteran filed a VA Form 9 Substantive Appeal in response to a July 2019 Statement of the Case regarding entitlement to service connection for a left and right knee disorder. As the Veteran requested a hearing by videoconference in the Substantive Appeal, this issue will be addressed in a separate decision after a hearing has been held. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's back condition has been rated under Diagnostic Code 5242 governing degenerative arthritis of the back. 38 C.F.R. § 4.71a. Under this Diagnostic Code, the Veteran's back disability is under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), specified in 38C.F.R. §4.71a. The General Rating Formula provides for a 20 percent rating where there is 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 is not greater than 120 degrees, or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 40 percent evaluation is warranted for favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less. The only criterion which warrants an evaluation in excess of 40 percent for limitation of motion of the thoracolumbar spine is where there is unfavorable ankylosis of the thoracic spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankyloses of the entire spine warrants a 100 percent rating. For VA compensation purposes, 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. When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to38C.F.R. §§ 4.40 and 4.45. The diagnostic codes pertaining to range of motion do not subsume §§ 4.40 and 4.45. The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202(1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board notes that effective February 7, 2021, the spine regulations were amended to state that Diagnostic Code 5243 governing Intervertebral disc syndrome should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). However, the Board notes that this change does not impact the evaluation in this case as the Veteran does not have any evidence of an IVDS diagnosis, and the same has been ruled out by those VA examiners with whom the Veteran has met over the course of the appeal period. As such, the rating provisions applicable to IVDS before and after February 7, 2021, need not be further addressed. Entitlement to a rating in excess of 20 percent for a low back disability The Veteran's low back condition has been evaluated as 20 percent disabling based on limitation of motion. The record reveals consistent complaints of low back pain throughout the appeal period, with treatment including periodic use of pain medication, physical therapy, and the use of a lumbar brace. Also, during the June 2017 hearing, the Veteran testified that he believed that his low back condition worsened since his last examination. Additionally, the Veteran testified that he experiences numbness and pain which has interfered with his ability to do physical things. See June 2017 hearing transcript. The Veteran's VA treatment records reflect complaints of pain and a degree of lost range of motion. These records, however, do not demonstrate loss of range of motion approaching that degree required for even the minimum disability evaluation based on lost range of motion under the General Formula summarized above. The Veteran was afforded a VA examination in December 2013, at which time the examiner noted a diagnosis of a lumbar strain. Range of motion testing revealed forward flexion limited to 45 degrees, extension to 20 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees or greater, and right and left lateral flexion to 30 degrees, with pain on testing rising to such a level as to cause functional loss. There was no lost range of motion with repeated bouts of testing, nor pain with weight bearing. Specifically, after repeated use testing, forward flexion was limited to 55 degrees, extension to 20 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees or greater, and right and left lateral rotation to 30 degrees or greater. The Veteran did not have guarding or muscle spasms, atrophy, or ankylosis. Straight leg raise testing was negative bilaterally, and sensory and reflex testing was normal. The Veteran used a brace on a regular basis. The examiner opined that the Veteran's low back disorder impacted his ability to work, although no additional comment was provided as to this opinion. Another VA examination was conducted in January 2020, where forward flexion was limited to 65 degrees, extension to 20 degrees, right and left lateral flexion to 25 degrees, and right and left lateral rotation to 20 degrees each. The Veteran complained of pain on all maneuvers, and the examiner indicated that pain caused functional loss. There was a degree of additional lost range of motion on repeated bouts of testing, with forward flexion further limited to 55 degrees, right and left lateral flexion limited to 15 degrees, and right and left lateral rotation limited to 10 degrees each. There was no evidence of pain with weight bearing, no atrophy, and no ankylosis. The Veteran had guarding or spasm present resulting in abnormal gait or abnormal spine contour. Additional factors contributed to disability included disturbance of locomotion and interference with sitting and standing. Straight leg raise testing was negative bilaterally, sensory testing was normal. There was evidence of radicular symptoms bilaterally. The examiner indicated that passive range of motion was not performed as it was not feasible to do so in a safe and reasonable manner. Pain and lack of endurance limited functional ability with repeated use over a period of time, with forward flexion further limited to 55 degrees, right and left lateral flexion limited to 15 degrees, and right and left lateral rotation limited to 10 degrees each. A review of this evidence convinces the Board that a higher rating is not warranted for any portion of the period on appeal. Critically, the Veteran's range of motion in forward flexion has never been shown to be limited beyond 45 degrees, thus a higher rating for limitation of motion is not assignable as such would require limitation of forward flexion to 30 degrees or less. Additionally, the evidence does not show ankylosis, thus, a higher rating is not warranted on this basis either. 38 C.F.R. § 4.71a. With regard to additional compensation for functional loss, the Board finds that the 20 percent rating currently assigned adequately compensates the Veteran for his painful motion and weakness. In other words, even when considering additional functional loss due to flareups or repeated use of the joint over time, there is no evidence that the Veteran's loss of range of motion would approach the 30 degrees or less of forward flexion contemplated by a 40 percent evaluation. Thus, while the Board has considered additional functional loss due to flare-ups or repeated use of the low back over time, the Board notes that consideration of those factors already forms the basis for the assignment of the current 20 percent evaluation in this case. As a result, there remains no basis for assignment of a higher rating due to functional loss. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for a low back disability. REASONS FOR REMAND 1. Entitlement to service connection for loss of balance secondary to tinnitus is remanded. The Veteran contends that he has a loss of balance disorder that is related to his military service. Alternatively, the Veteran contends that his loss of balance disorder is secondary to tinnitus. See June 2015 DRO Conference Report. The Veteran was afforded a VA examination in July 2015, at which time the examiner noted a diagnosis of recurrent vertigo. At the time of the examination, the Veteran reported that he had episodes of vertigo since the 1990s, increasing in frequency over the years. The examiner opined that it was less likely than not that his disability related to loss of balance was proximately due to or the result of his tinnitus. The examiner reasoned that the Veteran had tinnitus for about 20 years and that his vertigo dated back to the 1990s, as well. The examiner noted that the Veteran's tinnitus was constantly present, whereas the vertigo occurred every few months. The examiner stated that since the tinnitus, vertigo, and reduced hearing do not occur simultaneously, Meniere syndrome is not present. The examiner also stated that while it was possible that the Veteran had benign positional vertigo and, if so, then the tinnitus was unrelated and not causative of the vertigo. During the June 2017 hearing, the Veteran testified that he believed that there was a relationship between his loss of balance and tinnitus. More specifically, the Veteran testified that "according to physicians and medical, it's a natural progression from tinnitus into vertigo or Meniere's syndrome." The Veteran also stated that over the past 20 to 30 years, he had been treated at multiple hospitals and received care from numerous physicians. Notably, the Veteran also stated that his physician, Dr. L., treated him for vertigo for the past 15 years and told him that it was due to his tinnitus. In December 2017, the Board granted service connection for tinnitus. The Veteran was afforded a VA examination in January 2020. The examiner noted a sole diagnosis of vertigo and ruled out Meniere's Disease. At the time of the examination, the Veteran stated that his condition onset in the 1990s. The Veteran also reported ongoing intermittent symptoms of dizziness and vertigo that occurs at random. The Veteran also reported that his current symptoms included constant bilateral tinnitus, constant mild dizziness with episodes of vertigo, and a staggering gait. The examiner opined that it was less likely than not that the Veteran's condition was related to service. The examiner reasoned that the Veteran's diagnosis was first noted in the record in 2008. The examiner also stated that the Veteran's new onset dizziness/vertigo is a condition that would be reasonably expected to be reported and investigated at onset and that vertigo had a variety of potential serious etiologies. The examiner noted that there was no evidence of vertigo prior to or during active service and that there was no evidence of vertigo for many years following separation. The Veteran also opined that it was less likely than not that the Veteran's vertigo was a direct result of his service-connected tinnitus. The examiner noted that the Veteran's tinnitus was reported to be continuous and was unchanged during episodes of vertigo. The examiner reasoned that although vertigo and tinnitus can share an association as symptoms occur together in some conditions, there is no physiological basis by which tinnitus causes or contributes to vertigo. The examiner also stated that a baseline of severity could not be determined and that it was les likely than not that the Veteran's vertigo was aggravated beyond its natural progression by tinnitus. The examiner rationed that a 2006 exam was negative for dizziness, ear complaints, and balance problems. The examiner also reasoned that the there was no evidence that the condition has worsened or been aggravated by any condition or event, nor is there evidence that the condition existed prior to active duty service. Further, the examiner stated that there is no physiological basis by which the Veteran's tinnitus can worsen or worsened his vertigo symptoms. The Board finds that the opinions of record are inadequate. Specifically, as to the January 2020 examination, the examiner stated that vertigo had a variety of potential serious etiologies, but then failed to identify any of such etiologies. Further, the examiner failed to adequately consider the Veteran's lay statements regarding continuity of symptomatology, to specifically include the Veteran's assertion that his symptoms manifested in the 1990s and continued since such time. On remand, a new examination should be afforded to the Veteran. The matters are REMANDED for the following action: 1. Make arrangements to obtain any relevant VA treatment records for the Veteran's loss of balance/vertigo dated from August 2016 to Present. 2. Ask the Veteran to identify any additional pertinent treatment records for his loss of balance/vertigo at any relevant time during the appeal. Make arrangements to obtain any records identified. 3. After completion of the above requested development, schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of a disability manifested by dizziness and loss of balance. The examiner should identify all disabilities of record manifested by dizziness and loss of balance, to include vertigo and any vestibular disabilities. For each condition identified, the examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that such disorder manifested during or is otherwise related to active service. The examiner must consider the Veteran's statements regarding symptomatology with an onset date in the 1990s. If it is determined that there is another more likely etiology for the disability manifested by dizziness and loss of balance, the examiner should explain why this etiology is more likely. The examiner should also provide an opinion as to whether the Veteran has disability manifested by dizziness and/or loss of balance that is proximately caused or aggravated by his service-connected tinnitus. **The Board notes that the Veteran's service treatment records are unavailable for review. Thus, for the purposes of the above opinion, the examiner should assume the Veteran's statements about his service injuries/symptomatology are credible, unless the statements are inconsistent with the medical evidence or with medical principles concerning his condition(s). If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson, 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.