Citation Nr: 21040591 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-36 988 DATE: July 6, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for a lumbar spine strain with degenerative arthritis prior to August 10, 2020, and in excess of 20 percent thereafter is denied. Entitlement to service connection for vertigo is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to August 10, 2020, the Veteran's lumbar spine strain with degenerative arthritis does not limit forward flexion of the thoracolumbar spine to greater than 30 degrees but less than 60 degrees, or combined range of motion of the lumbar spine not greater than 120 degrees, muscle spasms, guarding, or localized tenderness. 2. After August 10, 2020, the Veteran's lumbar spine strain with degenerative arthritis does not limit forward flexion of the thoracolumbar spine of 30 degrees or less nor show the Veteran's spine exhibited any signs of ankylosis throughout the appeals period. 3. The Veteran does not have a current diagnosis of vertigo. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for lumbar spine strain with degenerative arthritis of the spine prior to August 10, 2020, and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1999 to November 2003. He served in combat in Iraq. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2019, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing. A transcript of the hearing is of record. This matter was previously remanded by the Board in August 2019 in order for the Veteran to be afforded additional VA examinations. Additional claims for service connection for cervical spine disability, traumatic brain injury (TBI), headaches, and upper left extremity radiculopathy were granted. The requested development has been completed and the remaining matters are again before the Board for additional appellate consideration. 1. Entitlement to an evaluation in excess of 10 percent for a lumbar spine strain with degenerative arthritis prior to August 10, 2020, and in excess of 20 percent thereafter. In this case, the Veteran seeks an increased rating in excess of 10 percent for a lumbar spine strain with degenerative arthritis of the spine prior to August 10, 2020, and in excess of 20 percent thereafter. By way of history, in August 2016, the Veteran's representative wrote that the Veteran's lumbar spine strain had worsened since his first June 2014 VA examination. A December 2017 private treatment record reflects that the Veteran reported that he had ongoing symptoms related to his back that had worsened. In January 2018, he underwent a microdiscectomy. In March 2019, the Veteran was afforded a Board hearing with the undersigned Veterans Law Judge where he indicated that his disability had worsened since the previous VA examination. Therefore, in an August 2019 decision, the Board remanded the issue in order to provide the Veteran with an additional VA examination. In a November 2020 rating decision, the Veteran was granted an increased rating of 20 percent for low back strain with degenerative arthritis, service connection for right paralumbar scar, and cervical strain with IVDS. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When an increase in the disability rating is at issue, generally, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in evaluating a claim for a higher initial rating or increased rating, staged rating is appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (for increased rating claims); Fenderson v. West, 12 Vet. App. 119, 126 (1999) (for initial rating claims). The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent rating for forward flexion of the lumbar spine greater than 30 degrees but less than 60 degrees, or combined range of motion of the lumbar spine not greater than 120 degrees, or muscle spasm, guarding or localized tenderness resulting in abnormal gait or an abnormal spinal contour. A 40 percent rating is warranted for forward flexion of the lumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent, the maximum available, is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. These ratings are made 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. Id. Note (2) of the General Rating Formula provides that, 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DC 5242. When rating degenerative arthritis of the spine (DC 5242), in addition to consideration of rating under the General Rating Formula for Diseases and Injuries of the Spine, rating for degenerative arthritis under DC 5003 should also be considered. 38 C.F.R. § 4.71a. DC 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Formula for Rating IVDS Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. As to a current diagnosis, the Board notes that the Veteran's disability has been diagnosed as lumbar spine strain with degenerative arthritis and is rated at 10 percent prior to August 10, 2020, and 20 percent thereafter under DC 5242. Turning to the medical evidence, the Veteran was afforded a VA examination in June 2014. The examiner diagnosed the Veteran with lumbosacral strain, degenerative arthritis of the spine, and intervertebral disc syndrome. During his examination, the Veteran stated that pain has increased and is most significant in the morning. On range of motion (ROM) testing, forward flexion was to 75 degrees (normal is to 90), extension was to 20 degrees (normal is 30), right lateral flexion was to 20 degrees (normal is 30), left lateral flexion was to 20 degrees (normal is 30), right lateral rotation was to 30 degrees (normal is 30), and left lateral rotation was to 30 degrees (normal is 30). His combined ROM was 195 degrees. The examiner noted there is no additional loss of ROM after three repetitions and repetitive use. With regard to flare-ups, the Veteran reported that flare-ups impact the function of his spine and they occur every other week lasting one to two days. The examiner stated they were unable to accurately determine additional loss of motion without resorting to mere speculation. The examiner noted the Veteran has localized tenderness or pain to palpation for joints. The Veteran did not have muscle spasms, guarding, or ankylosis. However, the examiner found the Veteran to have IVDS but no incapacitating episodes over the past 12 months. In December 2017, private medical treatment records indicate the Veteran was provided a lumbar transforaminal epidural steroid injection to help alleviate pain from his low back disability. Private medical records from January 2018 show the Veteran presented with chronic back pain and an MRI showing spinal stenosis. Two weeks later, the Veteran presented to the emergency department with worsening back pain and was taken to the operating room for microdiscectomy. VA treatment records from May 2018 discussed the lumbar surgery he underwent in January 2018 and noted significant improvement. The Veteran later testified at a hearing in March 2019 where he stated he underwent surgery, developed "flat back syndrome," and experienced radiculopathy in his legs. Per the Board's remand directives, the Veteran was afforded an additional VA examination in August 2020. The examiner confirmed the diagnosis of lumbosacral strain, degenerative arthritis of the spine, and lumbar disc disease. On ROM testing, forward flexion was to 60 degrees, extension was to 15 degrees, right lateral flexion was to 20 degrees, left lateral flexion was to 30 degrees, right lateral rotation was to 30 degrees, and left lateral rotation was to 30 degrees. His combined ROM was 185 degrees. Pain was noted on examination for each ROM and causes functional loss. The examiner noted there is no additional loss of ROM after three repetitions and repetitive use. With regard to flare-ups, the examiner did not find evidence of pain, weakness, fatiguability, or incoordination limit functional ability. The examiner found the Veteran's ROM to not reduce during a flare-up. There is no evidence of guarding, muscle spasm, ankylosis, or IVDS. The Board finds the Veteran's disability has remained consistent with his assigned disability ratings through the appeals period and that an increase above 10 percent prior to August 10, 2020, and in excess of 20 percent thereafter is not warranted. After a review of the record, the Board finds the most probative evidence of record are the results from the Veteran's VA examinations. Prior to August 10, 2020, VA examinations and medical notes did not show the Veteran had forward flexion greater than 30 degrees but less than 60 degrees, or combined range of motion of the lumbar spine not greater than 120 degrees, or muscle spasm, guarding or localized tenderness resulting in abnormal gait or an abnormal spinal contour. Specifically, the Veteran's forward flexion ROM was measured to be 75 degrees with a combined ROM of 195 degrees. Additionally, there is no evidence of muscle spasms, guarding, or tenderness. Therefore, an increased rating of 20 percent is not warranted. After August 10, 2020, VA examinations and medical records do not show the Veteran had forward flexion of the thoracolumbar spine of 30 degrees or less nor did these examinations show that the Veteran's spine exhibited any signs of ankylosis. Specifically, the Veteran's forward flexion ROM was measured to be 60 degrees with a combined ROM of 185 degrees. Moreover, the record did not reflect that the Veteran had incapacitating episodes of IVDS that required physician prescribed bedrest. Therefore, an increased rating of 40 percent is not warranted. The Board has also considered the Veteran's reports of pain on motion and his symptoms during any flare-ups; however, the Board does not find that the Veteran's symptomatology, even when considering pain on motion, demonstrates that his disability results in lost thoracolumbar range of motion which warrants a rating in excess of 10 percent prior to August 10, 2020, and in excess of 20 percent thereafter. Specifically, the Board notes that the repetitive testing that was conducted at the examinations did not show lost range of motion that met the criteria for an increased rating. The examiner did not estimate that there was any further loss of motion with repetitive use over time or with flare-ups. In addition, the Veteran's medical records do not show any reports that the Veteran experiences flare-ups that result in lost range of motion that meet the criteria for an increased rating. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 20 percent for his lumbar spine disability is denied. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59, and the holdings in DeLuca. DeLuca v. Brown, 8 Vet. App. 202. However, the Board finds the medical evidence reflects that the Veteran's 10 percent rating prior to August 10, 2020, and 20 percent rating thereafter properly compensates the Veteran for the extent of functional loss resulting from any such symptoms. 2. Entitlement to service connection for vertigo. In this case, the Veteran has recently been service connected for TBI but had also sought service connection for vertigo. During an October 2012 private neuropsychological evaluation, the examiner opined that the Veteran had a history consistent with post-concussion syndrome (mild traumatic brain injury) (TBI). The Veteran believed he lost consciousness during a battle in Iraq. The Veteran underwent a VA examination for TBI in April 2015. The examiner opined that the Veteran never had a TBI or residuals. The Veteran reported having been knocked out for at least five minutes while pulling his buddy away from a mortar explosion in Iraq. He was checked out and immediately back in action. Since then, the Veteran said he has had memory and concentration problems. The April 2015 examiner noted that on a September 2003 medical history report the Veteran check no regarding whether her had a head injury resulting in concussion, loss of consciousness, headaches, double vision, or fainting spells. The October 2012 private examination report was submitted after the April 2015 VA examination. Therefore, the examiner's opinion did not consider it. As such this issue, to include entitlement to service connection for TBI were remanded by the Board in order to afford the Veteran with an additional VA examination. The Board notes the Veteran was granted service connection for TBI with a 10 percent disability rating in a November 2020 rating decision. However, this rating decision did not consider vertigo and the issues were separately adjudicated on appeal. As such, the Board will now consider entitlement to service connection for vertigo as separate from TBI. In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran was afforded a VA ear disability to include vestibular and infections conditions examination and was examined for vertigo. The examiner noted the Veteran does not have a current diagnosis of an ear or peripheral vestibular condition to include vertigo. As the examiner explained, the Veteran's symptoms of dizziness are not consistent with a diagnosis of vertigo. The examiner noted the Veteran's history, examination, and medical records do not correlate with the diagnosis of vertigo. The examiner acknowledges his complaints of intermittent dizziness, the examiner notes it is not what is customarily known as vertigo. Therefore, given the lack of a current diagnosis of vertigo, and that the Veteran has otherwise been service connected for residuals of TBI, the Board finds that entitlement to service connection for the separately identified disability of vertigo is not warranted. REASONS FOR REMAND Entitlement to a TDIU is remanded. TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2015). Although the Veteran did not submit a formal claim for TDIU, a TDIU claim can be considered part and parcel of the Veteran's increased rating claim for his low back disability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (the issue of entitlement to TDIU takes its place as part of an increased rating claim where a claimant or the evidence reasonably raises the possibility that the relevant disability causes or contributes to a claimant's unemployability). A TDIU claim has been reasonably raised as part of his increased rating claims. Specifically, during private neuropsychological evaluation in October 2012, under the "Review of Records" it was indicated that the Veteran was "subsequently identified as a veteran who is unemployable." In his June 2014 VA back examination, the examiner noted his back disability impacts the ability to work and recommended light physical employment. Psychiatry consultation notes from July 2014 discussed his problems with employment noting "his current job is shaky" and noting he has been employed at various gyms and cabinet/granite stores. Most recently, in his June 2019 PTSD VA examination, the Veteran noted he last worked in October 2017. In his August 2020 VA back examination, the examiner noted the Veteran would have difficulty bending at the waist. The Veteran has met the schedular criteria for a TDIU since September 26, 2011, where he was assigned a 90 percent disability rating. The Veteran has been in receipt of a 100 percent rating since June 26, 2018. However, the Board finds that further development regarding his employment and income history is necessary. Therefore, on remand the agency of original jurisdiction (AOJ) should obtain employment and income information from the Veteran for the entire appeals period. The matters are REMANDED for the following actions: Ask the Veteran to complete and return a VA Form 21-8940 (an official TDIU application), providing his updated employment history complete with his wages and earnings, average hours worked, education, etc. Based on this additional information, determine whether the Veteran's annual income exceeds the poverty threshold according to the U.S. Department of Commerce, Bureau of the Census. Then readjudicate the remaining claim for TDIU in light of all additional evidence. If the claim is denied, or is not granted to the Veteran's satisfaction, send the Veteran and his representative another SSOC and give them time to respond to it before returning the file to the Board for further appellate consideration of the claim. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.