Citation Nr: 21042679 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 20-22 179 DATE: July 13, 2021 ORDER Entitlement to a disability evaluation in excess of 40 percent for a low back disability is denied. REMANDED Entitlement to a disability evaluation in excess of 50 percent for PTSD is remanded. Entitlement to service connection for a disability manifested by diffuse muscle and joint pain is remanded. FINDING OF FACT The Veteran's lumbar disability is not manifested by ankylosis at any level of the spine, and his IVDS has not resulted in incapacitating episodes having a total duration of at least 6 weeks during any relevant 12-month period. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 40 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Codes (DC) 5242, 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1990 to June 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a disability evaluation in excess of 40 percent for a low back disability 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. Back disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), specified in 38 C.F.R. § 4.71a. If there is intervertebral disc disease, the rating criteria specified in the Formula for Rating Intervertebral Disk Syndrome (IVDS) Based on Incapacitating Episodes may be applicable. In such cases, the adjudicated is directed to evaluate the condition under either the IVDS provisions or the General Rating Formula depending on which yields the higher evaluation. 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. Back disability is, as noted above, rated on limitation of motion, or may be rated based on subjective complaints of pain, if there is objective confirmation of arthritis on radiologic examination. DCs 5003, 5010. A 10 percent evaluation is the maximum schedular evaluation available for arthritis of one joint or group of joints under DCs 5003 or 5010, so application of these DCs would not result in a more favorable evaluation for the Veteran. 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 to 38 C.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). From November 15, 2017, the date of claim in this matter, the Veteran's low back disability has been evaluated under DC 5243 and assigned a 40 percent evaluation. He appeals for a higher evaluation. Initially, the Board observes that the 40 percent evaluation of which the Veteran is in receipt represents the highest available for limitation to range of motion under the General Rating Formula. A higher evaluation under the General Rating Formula requires a showing of ankylosis at some level of the spine, and no such showing has ever been made in this case, nor has the Veteran advanced argument that his spine is ankylosed at any level. As such, the only means by which a higher evaluation may be available is by a showing that IVDS has caused incapacitating episodes having a total duration of at least 6 weeks during a relevant 12 month period. Treatment records during the period herein on appeal do not reflect the presence of incapacitating episodes, defined as periods of prescribed or advised bedrest due to IVDS symptoms, approaching that duration. A VA examiner with whom the Veteran met in January 2018 indicated that the Veteran did not have a diagnosis of IVDS. In contrast, a March 2020 VA examiner indicated that an IVDS diagnosis was appropriate, and that the Veteran's IVDS had required a total of 1 week of bedrest during the prior 12 month period. There is no evidence of record indicating greater limitation than that represented by the March 2020 VA examiner's report. Thus, there is no basis in the record to find the criteria for a 60 percent evaluation under the IVDS provisions satisfied in this case, and accordingly, no basis for assignment of an evaluation in excess of the already assigned 40 percent evaluation for a lumbar spine disability. The appeal for increase is therefore denied. REASONS FOR REMAND 1. Entitlement to a disability evaluation in excess of 50 percent for PTSD is remanded. The Board observes that it has been nearly 4 years since the Veteran was afforded a VA examination to explore the nature and severity of his PTSD, and that the evidence of record, including the Veteran's lay statements, raise the likelihood that his symptoms may have increased in severity since that time. On remand, a new VA examination must be conducted that sheds light on the current manifestations of the Veteran's PTSD. 2. Entitlement to service connection for a disability manifested by diffuse muscle and joint pain is remanded. The Veteran's claim for service connection for muscle and joint pain to include as a result of environmental exposures in the Persian Gulf requires additional development before it can be finally adjudicated. A VA examiner with whom he met in April 2018 opined that the Veteran had a current disability to account for the diffuse muscle and joint pain of which he complained, and that the condition had a "clear and specific etiology" and thus was unrelated to any exposure to environmental hazards in the Persian Gulf, naming the diagnosis as "chronic musculoligamentous strain," adding that the because diagnostic imaging giving rise to that diagnosis was not conducted until many years after separation, the condition was unrelated to any environmental hazards encountered in service. A February 2020 VA examiner's opinion essentially reiterates the earlier opinion, explaining that diffuse muscle and joint symptoms, including those affecting the knees and hips, have a clear and specific etiology, and are unrelated to environmental exposures. However, the Veteran has consistently averred that he began noticing the symptoms shortly after deployment to the Persian Gulf and while still on active duty, that he initially sought chiropractic care for the symptoms, and that they have been present on a consistent basis since separation. Despite the Veteran's credible lay statements, the record remains bare of an adequate VA medical opinion respecting direct service connection for a disability manifested by diffuse muscle and joint pain. On remand, a new VA examination must be conducted, the Veteran's diagnosis or diagnoses confirmed, and an opinion obtained that considers the lay statements of record and addresses all raised theories of entitlement to service connection. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, obtain any outstanding VA and/or private treatment records relevant to the Veteran's claims. 2. Then, schedule the Veteran for a VA examination to explore the etiology of his diffuse muscle and joint pain. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. The examiner should state whether the Veteran's symptoms of diffuse muscle and joint pain can be attributed to a clear current diagnosis or diagnoses. If so, for each diagnosis identified the examiner should identify whether, on an at least as likely as not basis (50 percent or greater probability,) the condition had its onset in service or is etiologically related to service. In addressing the above opinion, the examiner should consider the Veteran's lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. If it is determined that no firm diagnoses are appropriate to account for symptoms of diffuse muscle and joint pain, the examiner should state whether, on an at least as likely as not basis, the symptoms constitute components of a chronic multisymptom illness associated with service in the Persian Gulf region. All findings should be reported in detail and all opinions must be accompanied by a clear rationale 3. Schedule the Veteran for a VA examination to assess the current nature and severity of his PTSD. The claims file must be made available to the examiner, and the examination report must reflect that such review occurred. All tests and studies deemed necessary must be performed. All pertinent symptomatology and findings should be reported in detail in accordance with VA rating criteria. 4. The AOJ should ensure that the examinations comply with the terms of the remand. Once that is accomplished, the AOJ should readjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.