Citation Nr: 21042365 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-30 681 DATE: July 12, 2021 ORDER Entitlement to a rating of 40 percent, but no higher, for the Veteran's service-connected lumbar strain with degenerative arthritis of the spine, from September 19, 2016, is granted. Entitlement to a rating in excess of 20 percent for the Veteran's service-connected lumbar strain with degenerative arthritis of the spine, prior to September 19, 2016, is denied. Entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for a left hip disorder, claimed as left leg arthritis, as secondary to the Veteran's service-connected right hip condition, is remanded. FINDINGS OF FACT 1. From September 19, 2016, the Veteran's lumbar spine disability manifested as, at worst, limitation of forward flexion to 40 degrees, with limitation to 25 degrees after three repetitions, after repetitive use, and during flare-ups, but without ankylosis or incapacitating episodes. 2. Prior to September 19, 2016, the Veteran's lumbar spine disability manifested as, limitation of forward flexion to 70 degrees, without ankylosis or incapacitating episodes. 3. The Veteran's hypertension had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent for the Veteran's service-connected lumbar spine disability, from September 19, 2016 and continuing thereafter, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for a rating in excess of 20 percent for the Veteran's service-connected lumbar spine disability, prior to September 19, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 3. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1981 to November 2001. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. 1. Entitlement to a rating of 40 percent, but no higher, for the Veteran's service-connected lumbar strain with degenerative arthritis of the spine, from September 19, 2016, is granted. 2. Entitlement to a rating in excess of 20 percent for the Veteran's service-connected lumbar strain with degenerative arthritis of the spine, prior to September 19, 2016, is denied. In December 2014, the Veteran filed a claim for a rating in excess of 20 percent for his service-connected lumbar spine disability. An August 2015 rating decision denied the claim. The Veteran contends that he is entitled to a higher rating due to the severity of symptoms related to his back disability. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999), Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's lumbar strain with degenerative arthritis of the spine has been assigned a 20 percent rating under Diagnostic Code 5010-5237. During the pendency of the appeal, VA promulgated new regulations governing ratings for musculoskeletal system, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). The rating criteria for the spine were amended. Diagnostic Code 5010 was amended to make clear that it applied only to post-traumatic arthritis and should be rated as limitation of motion, dislocation, or instability. Diagnostic Code 5237 was not changed. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for 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, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reserved lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Turning to the evidence, a January 2015 VA physical medicine rehabilitation note reported that the Veteran exhibited lumbar flexion to 70 degrees and lumbar extension to 20 degrees. The Veteran was provided a VA examination of his thoracolumbar spine in March 2016. The Veteran reported experiencing lower back pain every day, which was made worse with prolonged walking, driving, sleeping, and bending. He reported that he did not experience flare ups. A review of range of motion testing showed forward flexion of 0 to 70 degrees, extension from 0 to 30 degrees, right lateral flexion from 0 to 30 degrees, left lateral flexion from 0 to 30 degrees, right lateral rotation from 0 to 10 degrees, and left lateral rotation from 0 to 30 degrees. Pain was noted on the examination with flexion and extension that did not result in functional loss. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions that did not result in additional functional loss. The examiner reported that the examination was conducted immediately after repetitive use over time that did not cause pain, weakness, fatigability, or incoordination that significantly limited functional ability with repeated use over a period of time. The examiner reported the Veteran did not have intervertebral disc syndrome (IVDS) or ankylosis of the spine. No guarding or muscle spasms were exhibited. The examiner concluded that the Veteran's back disability impacted his ability to work, as he noted the following restrictions: no prolonged walking, no frequent bending, and no heavy lifting. The Veteran was provided another VA examination of his thoracolumbar spine in September 2016. The Veteran reported experiencing numbness, tingling, and sharp pain to the right leg on certain position and movement. He reported experiencing flare ups, which he described as daily low back pain from picking up objects from the floor, leaning on the chair, and lifting. He described experiencing functional loss as difficulty with lifting and bending. A review of range of motion testing showed forward flexion of 0 to 40 degrees, extension from 0 to 10 degrees, right lateral flexion from 0 to 10 degrees, left lateral flexion from 0 to 5 degrees, right lateral rotation from 0 to 10 degrees, and left lateral rotation from 0 to 10 degrees. Pain was noted on the examination in all movements that caused functional loss. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions. The examiner reported that there was functional loss with three repetitions. She reported the range of motion after three repetitions as the following: forward flexion of 0 to 25 degrees, extension from 0 to 5 degrees, right lateral flexion from 0 to 10 degrees, left lateral flexion from 0 to 5 degrees, right lateral rotation from 0 to 10 degrees, and left lateral rotation from 0 to 10 degrees. The examination was not conducted immediately after repetitive use over time. The examiner stated that pain, fatigue, and lack of endurance caused functional loss with repetitive use over time. She estimated the range of motion with repetitive use over time as the following: forward flexion of 0 to 25 degrees, extension from 0 to 5 degrees, right lateral flexion from 0 to 10 degrees, left lateral flexion from 0 to 5 degrees, right lateral rotation from 0 to 10 degrees, and left lateral rotation from 0 to 10 degrees. The examiner reported that the examination was conducted during a flare up. The examiner stated that pain, fatigue, and lack of endurance caused functional loss with flare ups. She estimated the range of motion during a flare up as the following: forward flexion of 0 to 25 degrees, extension from 0 to 5 degrees, right lateral flexion from 0 to 10 degrees, left lateral flexion from 0 to 5 degrees, right lateral rotation from 0 to 10 degrees, and left lateral rotation from 0 to 10 degrees. The examiner reported the Veteran had IVDS but did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. No ankylosis of the spine was noted. The examiner reported that the Veteran had muscle spasms that did not result in abnormal gait or abnormal spine contour. The examiner concluded that the Veteran's back disability impacted his ability to work, as she noted his back disability would limit prolonged sitting, standing, bending, and lifting. After consideration of the entire record and relevant law, the Board finds that a rating in excess of 20 percent for the Veteran's service-connected lumbar spine disability under Diagnostic Code 5003-5237, prior to September 19, 2016, is not warranted. During his March 2016 VA examination, range of motion testing reflected forward flexion of the Veteran's thoracolumbar spine to 70 degrees. Moreover, the examiner reported the Veteran did not have IVDS or ankylosis of the spine. The Board notes that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, the Board carefully considered whether a remand to ensure compliance was necessary. To the extent that examination findings of record relative to the low back are not completely in compliance with Correia, the Board finds that remand for additional examination would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Current examination findings would not be useful in adjudicating the ratings assigned for the rating period prior to September 19, 2016 and any retrospective opinion would merely impose additional burdens on VA with no benefit flowing to the Veteran, as VA would be asking an examiner to resort to speculation as to a description of the motion, in non-weight-bearing and passive range of motion, prior to September 19, 2016. The Board notes that the March 2016 examiner reported that there was no evidence of pain with weight bearing. There is no indication of record that non-weight-bearing or passive range of motion findings would be more limited so as to warrant a remand for a retrospective medical opinion. The Board had considered the Veteran's lay statements of record that he experienced back pain every day, which was made worse with prolonged walking, driving, sleeping, and bending. The Veteran is clearly competent to report observable symptomatology. However, as to the specific issue in this case, questions of nature and medical severity fall outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the current severity of the Veteran's lumbar spine disability is a matter suited to the realm of medical expertise. As such, to the extent the Veteran is addressing questions of the medical nature and severity of his lumbar spine disability, the Board finds that the probative medical evidence of record outweighs the Veteran's lay statements. In consideration of the above, the Board finds that the preponderance of the evidence weighs against a disability rating in excess of 20 percent for the Veteran's lumbar strain with degenerative arthritis of the spine prior to September 19, 2016. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to an increased rating as described above, is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For the period from September 19, 2016, the Board finds that the Veteran's lumbar spine disability is consistent with a rating of 40 percent, but not higher. The September 2016 VA examination report indicates that the examiner estimated the Veteran's forward flexion with repetitive use over time and during a flare up was 0 to 25 degrees. As the Veteran now has been granted a 40 percent rating for his lumbar spine disability, for the period from September 19, 2016, he is in receipt of the maximum rating allowed based range of motion. The only ratings available are a 50 percent rating for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating for ankylosis of the entire spine. However, there is no medical evidence showing ankylosis and the Veteran has not argued to the contrary. Moreover, the September 2016 examination report indicates that the Veteran did not have IVDS of the thoracolumbar spine. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). However, where, as here, a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Accordingly, for the period from September 19, 2016, a 40 percent disability rating, but no higher, for the Veteran's lumbar spine disability is granted. 3. Entitlement to service connection for hypertension is granted. The Veteran contends that he has hypertension that is related to an in-service event, illness, or injury, as the condition began in service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Presumptive service connection may be established for certain chronic diseases, including hypertension, which manifest to a compensable degree within one year of separation from active service. 38 C.F.R. §§ 3.307, 3.309. When a disease is not shown to be chronic during service or within the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board acknowledges that, prior to issuance of the August 2015 rating decision that is currently on appeal, the RO issued a rating decision in May 2009 that denied entitlement to service connection for hypertension. Although this decision became final and would ordinarily require the Veteran to reopen the claim by submission of new and material evidence, additional relevant service treatment records have been associated with the claims file since that prior final denial. 38 C.F.R. § 3.156(a). Although service treatment records were previously included in the claims file, in November 2015, the RO obtained additional relevant service treatment records that were not part of the claims file when the case was adjudicated in 2009. Therefore, in accordance with 38 C.F.R. § 3.156(c), the Veteran's current claim of entitlement to service connection for hypertension will be evaluated de novo as an original claim. For VA purposes, hypertension means that diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. A diagnosis must be confirmed by readings taken two or more times on at least three different days. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). A September 1998 report of medical examination documented a blood pressure reading of 190/92. The examiner reported as a diagnosis "r/o HTN," which is a medical abbreviation for rule out hypertension. An April 1999 service treatment record reported the Veteran had a history of hypertension and being treated with medication. He was referred for evaluation. It was reported that he had the following blood pressure readings: 142/102, 156/102, 174/114. An April 1999 service treatment record from the Veteran's primary care physician reported that the Veteran was referred by "Dental" for elevated blood pressure. It was reported that the Veteran had a past history of hypertension treatment but stopped taking medication on his own. He did not realize he was supposed to continue treatment. He was diagnosed with essential hypertension and prescribed medication. A June 2001 separation report of medical history reported as a defect that the Veteran was "borderline systolic." The examiner recommended that the Veteran follow up with his primary care manager for hypertension. A July 2001 service treatment record reported blood pressure readings of 159/95 and 154/95 and a diagnosis of hypertension. A March 2002 VA examination reported blood pressure readings of 138/90 (sitting), 140/90 (standing), and 138/90 (lying). A March 2008 VA treatment record reported a blood pressure reading of 138/89 and a diagnosis of elevated blood pressure without diagnosis of hypertension. elevated blood pressure without diagnosis of hypertension A September 2008 VA treatment record reported a blood pressure reading of 144/97 and a diagnosis of elevated blood pressure without diagnosis of hypertension. In October 2013, the Veteran submitted a Hypertension Disability Benefits Questionnaire completed by a private physician. The physician reported that the Veteran has been dealing with hypertension and elevated blood pressure since 1999 and has been on medication since that time. A May 2019 VA primary care note reported a diagnosis of hypertension as a chronic condition for which the Veteran was taking medication. The Veteran was provided a VA medical opinion in February 2015 along with an addendum in May 2015. The examiner opined that the Veteran's hypertension was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. As rationale, the examiner provided the following: "Hypertension can either be primary or have secondary causes. In this patient, he has primary hypertension therefore it is genetic in origin. Therefore, this [Veteran's] hypertension is not due to service." The Board affords this opinion no probative value as the examiner reported that he did not review the Veteran's claims folder or conduct a full examination. Notwithstanding the February 2015 opinion, the record reasonably supports a finding of continuity of symptomatology under 38 C.F.R. § 3.303(b), which "relaxes" the evidentiary requirements for establishing service connection for chronic diseases like hypertension. Walker v. Shinseki, 708 F.3d 1338 (Fed. Cir. 2012). In this case, the record shows a consistent pattern of elevated blood pressures and diagnoses of hypertension during and after the Veteran's active service. Accordingly, resolving any reasonable doubt in the Veteran's favor, the Board finds that he has experienced continuous hypertension symptoms since service and service connection for hypertension is granted. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Entitlement to service connection for a left hip disorder, claimed as left leg arthritis, as secondary to the Veteran's service-connected right hip condition, is remanded. In December 2014, the Veteran filed a service connection claim for his left hip as secondary to his service-connected right hip condition. An August 2015 decision denied the claim. A February 2015 VA examination diagnosed bilateral hip osteoarthritis. The examiner opined that the Veteran's left hip disorder is less likely than not proximately due to or the result of the Veteran's service-connected condition. As rationale, the examiner provided the following: "Given the patient does not have a current diagnosis of a chronic [right] hip sprain, a medical opinion regarding his [left] hip condition is not possible. In May 2015, the examiner provided an addendum opinion. The examiner provided the following: "This patient's [left] hip pain is from osteoarthritis. This condition is NOT related to his symptoms during service. It is more likely than not due to his elderly age." The Board finds that the February 2015 opinion and the May 2015 opinion are inadequate as the examiner did not provide an opinion on whether the Veteran's left hip disorder was caused by or aggravated by the Veteran's service-connected right hip disability. Therefore, a remand is warranted to obtain an addendum opinion to address whether the Veteran's left hip disorder was caused by or aggravated by the Veteran's service-connected right hip disability. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. Forward the claims file and a complete copy of this remand to an appropriate examiner to provide an addendum opinion. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. The examiner must independently review the electronic claims folder. If the examiner determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. 4. The examiner should set forth all examination findings and a complete rationale for any opinion expressed should be provided. Following a review of the claims file and examination of the Veteran, if deemed necessary, the examiner is then requested to respond to the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's left hip disorder was caused by the Veteran's service-connected right hip disability? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's left hip disorder was aggravated (any increase in disability beyond the natural progression) by the Veteran's service-connected right hip disability? (c.) If aggravation is found, the examiner is asked to state the baseline level of severity of his left hip disorder before the onset of aggravation, to discuss the earliest medical evidence establishing the current level of severity, and to discuss what level of increase in severity from the baseline was due to the natural progression of the left hip disorder and what level of increase was due to aggravation by the service-connected right hip disability. 5. If any determination remains unfavorable to the Veteran, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore, 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.