Citation Nr: 22010845 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 18-05 856 DATE: February 24, 2022 ORDER The petition to reopen the claim of service connection for a left ankle disorder, to include tarsal tunnel syndrome, is granted. Entitlement to a 40 percent rating for the service-connected degenerative disc disease status post fusion, effective April 30, 2012, is granted. Entitlement to an increased rating higher than 40 percent for the service-connected degenerative disc disease status post fusion is denied. REMANDED Service connection for a left ankle disorder, to include tarsal tunnel syndrome, is remanded. Entitlement to an increased rating higher than 20 percent for the service-connected left lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) denied the Veteran's claim of service connection for a left ankle disorder in a June 2004 rating decision. He did not file a timely notice of disagreement, and new and material evidence was not associated with the claims file within one year of the decision, and the decision became final. 2. The Veteran presented new and material evidence, in the form of a nexus statement from his private physician, that warrants reopening the claim of service connection for a left ankle disorder. 3. For the entire period on appeal, the Veteran's spine has been fused from T9 through S1, which constitutes ankylosis of the entire thoracolumbar spine. 4. For the entire period on appeal, the Veteran's spine has been fused in a neutral position. CONCLUSIONS OF LAW 1. The June 2004 rating decision denying service connection for a left ankle disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim of entitlement to service connection for a left ankle disorder have been met. 38 U.S.C. §§ 5103A, 5108; 38 C.F.R. § 3.156. 3. The criteria for a 40 percent rating for the service-connected degenerative disc disease status post fusion, effective April 30, 2012 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5242-5237. 4. The criteria for an increased rating higher than 40 percent for the service-connected degenerative disc disease status post fusion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5242-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to August 1970. The matter is on appeal before the Board of Veterans' Appeals (Board) from an October 2013 rating decision. In September 2021, he had a hearing before the undersigned Veterans Law Judge. The Veteran has consistently contended that he is unable to work due to his service-connected disabilities. The Board thus finds that the claim for a TDIU has been raised and takes jurisdiction over the claim. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The Veteran has a separate appeal pending concerning service connection for hearing loss and tinnitus. These claims will be decided in a future Board decision. 1. The petition to reopen the claim of service connection for a left ankle disorder, to include tarsal tunnel syndrome, is granted. The Veteran filed his initial claim for service connection for a left ankle disorder in June 2003. The AOJ denied his claim in a June 2004 rating decision because the evidence did not link a left foot disorder to his back disorder. The Veteran did not file a timely notice of disagreement nor submit new and material evidence within one year of the decision, and it became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Prior unappealed decisions of the Board and the RO are final. See 38 U.S.C. §§ 7104, 7105(c); 38 C.F.R. §§ 3.160 (d), 20.302(a), 20.1100, 20.1103, 20.1104. If, however, new and material evidence is presented or secured with respect to a claim which has been denied, VA shall reopen the claim and review the former disposition of the claim. See Manio v. Derwinski, 1 Vet. App. 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. See 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. See id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See id. New and material evidence need not be received as to each previously unproven element of a claim to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). In April 2012, the Veteran filed a petition to reopen the claim of service connection for a left foot disorder. In September 2021, his private physician wrote that the Veteran's "left leg and foot dysfunction and weakness is a consequence of thoracic and lumbar spinal pathology." The Board finds that this statement constitutes new and material evidence because it relates the Veteran's left lower leg and foot symptoms to his service-connected back disability. Accordingly, the Board finds that new and material evidence has been received and the claim for service connection for a left ankle disorder is reopened. 2. Entitlement to a 40 percent rating for the service-connected degenerative disc disease status post fusion, effective April 30, 2012, is granted. The Veteran seeks a higher rating for his service-connected back disability. Currently, his back disability is rated at 30 percent prior to December 16, 2016 and 40 percent from December 16, 2016 onward under 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5237, General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula, a 40 percent rating is warranted for forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See id. at Note (5). The Veteran also has temporary total disability ratings from May 25, 2012 to December 1, 2012 and March 22, 2016 to July 1, 2016. The periods during which he is rated at 100 percent are not on appeal and are not affected by this decision. After review of the lay and medical evidence, the Board finds that a 40 percent rating is warranted for the entire period on appeal, except for those periods during which he is rated at 100 percent. The Veteran's private records show that, prior to his May 2012 surgery, his spine was fused from T9 to S1. In May 2012, he underwent an operation to revise the fusion from T9 to L2. In August 2013, the Veteran underwent a VA examination which showed back flexion and extension. Based on this examination report, the AOJ denied a higher rating. In the December 2016 VA examination report, the VA examiner wrote that the Veteran "is fused all the way through to S1" and "what this means, in terms of motion, is that any flexion or extension shown on the previous exam is not a product of back motion, but rather the 30 degrees [the VA examiner] was able to measure in 2013 would be caused by hip rotation in the pelvis." The examiner emphasized that "his lumbar spine is entirely fused and moves as one unit" and "when you connect T-9 to the sacrum (tailbone) there is, by definition, ankylosis of the entire thoracolumbar spine." The examiner clarified that "this was true in 2013 as well." Based on the December 2016 examination report, which is supported by his private physician's letters that he has no spinal mobility from the sacrum to mid-thoracic area, the Board finds that the Veteran's spine has been ankylosed since before his May 2012 surgery and warrants a 40 percent rating, effective the date of claim. Because Note (1) instructs VA to evaluate any associated objective neurologic abnormalities, the Board considered whether a separate rating was warranted for right lower extremity radiculopathy but finds that it is not. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). While some records not radiculopathy-like symptoms on the right side, like the May 2012 post-op record and December 2016 and November 2017 VA examinations, most of the Veteran's records only document lower left extremity radiculopathy. This includes the letters from his private physician in September 2021 (only discusses left leg and foot dysfunction), his VA examinations (only diagnose left sided radiculopathy), and his VA treatment records (only discuss radicular pain in the left lower extremity). Accordingly, the Board finds that the weight of the evidence against a separate rating for right lower extremity radiculopathy. 3. Entitlement to an increased rating higher than 40 percent for the service-connected degenerative disc disease status post fusion is denied. The Veteran contends he is entitled to a 100 percent rating for his spine disability. Under the rating criteria, a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See id. The Board finds that the criteria for a 50 percent or 100 percent rating have not been met. The evidence, to include the December 2016 and November 2017 VA examinations, shows that his thoracolumbar spine is fixed in a neutral position, which constitutes favorable ankylosis. Moreover, the evidence does not show that he experiences symptoms that are associated with unfavorable ankylosis, as detailed in Note (5). Therefore, a 50 percent rating for unfavorable ankylosis of the thoracolumbar spine is not warranted. Additionally, the Board finds that the Veteran is not service connected for unfavorable cervical spine ankylosis, and his service-connected back disability does not cause symptoms similar to unfavorable ankylosis of the spine to include his cervical spine. For instance, the December 2016 VA examiner noted that the Veteran can move his neck. His private physician also wrote in March 2016 that the Veteran has no mobility from his sacrum to mid-thoracic area; he did not include the cervical spine. Thus, the evidence does not show that the Veteran's neck mobility is fixed in one position by his back disability, and a 100 percent rating is not warranted under the diagnostic criteria. In support of his claim for a 100 percent rating for his spine, the Veteran has pointed to statements from his doctor that he is totally disabled. Whether the Veteran is entitled to a 100 percent rating because he is unemployable due to his service-connected disabilities (also known as a TDIU) is a separate analysis from whether the Veteran's spine disability meets the criteria for a 100 percent rating under the 38 C.F.R. § 4.71a, General Rating Formula. Here, the Veteran's spine disability does not meet the 100 percent criteria under the General Rating Formula. However, entitlement to a TDIU may be granted where a veteran's total disability rating is less than 100 percent, like in this case, but he is unable to work due to his service-connected disabilities. See 38 C.F.R. § 4.16(a). As discussed in the introduction, the Board has taken jurisdiction over the Veteran's claim for a TDIU and remanded it below for further development. If granted, he will be awarded a 100 percent rating based on unemployability. Finally, the Board considered the Veteran's contentions that his disability cannot accurately be rated under schedular rating criteria, specifically by using range of motion tests. The Board finds that the rating criteria adequately contemplates the Veteran's symptoms, which includes the impaired ability to bend, lift, and sit and stand for prolonged periods, and use of a cane for mobility. For all musculoskeletal disabilities, the schedular rating criteria contemplate functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance that affects stability, standing and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the spine in particular, the criteria specifically contemplate factors such as weakened movement, excess fatigability, pain on movement, disturbance of locomotion and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss, to include no range of motion in the spine at all. The Board thus finds that the rating criteria and the provisions of 38 C.F.R. § 4.40, 4.45, and 4.59 contemplated the Veteran's symptomatology and functional impairment, and the assigned schedular rating is adequate. REASONS FOR REMAND 1. Service connection for a left ankle disorder, to include tarsal tunnel syndrome, is remanded. 2. Entitlement to an increased rating higher than 20 percent for the service-connected left lower extremity radiculopathy is remanded. The Board finds that the issue of service connection for a left ankle disorder, to include tarsal tunnel syndrome, must be remanded for further development. In November 2003, the Veteran was diagnosed with a slowing of nerve conduction across the left ankle which suggested tarsal tunnel syndrome, but the examiner noted that his plantar nerves were not specifically examined. Since then, the Veteran has not been diagnosed with a left ankle condition. However, his private physician has opined that he has lower left extremity and foot dysfunction related to his back. Therefore, the Board finds that a remand is necessary for a VA peripheral nerves examination to assess the Veteran's condition and determine whether he has a condition that is separate from his service-connected left leg sciatica. Because the Board is remanding for a peripheral nerves examination that assesses his current left leg dysfunction, evidence relevant to his claim for an increased rating for left leg radiculopathy will be obtained on remand. Additionally, the claims are intertwined as it is unclear whether the Veteran's left leg and foot dysfunction solely stems from his service-connected sciatica or a separate condition. Finally, the Veteran testified that he underwent EMG testing by VA, but those records are not in the claims file. Thus, those records should be obtained on remand. 3. Entitlement to a TDIU is remanded. The Board finds that the claim for a TDIU must be remanded for further development. The Board acknowledges the letters from the Veteran's private physician in which he writes the Veteran is totally disabled, as well as his November 2016 statement in which he wrote that he has taken no wages from the business since May 2012. There are other records in the file, however, that indicate the Veteran worked and maintained ownership of his company after his 2012 surgery. For example, a private April 2013 record shows that he reported that he stopped lifting, but he still works in refrigeration. A January 2016 VA treatment record also shows that he works part-time for the business. Further, the December 2016 examiner noted that the Veteran's private physician does not want him to work but his fractured spine rods indicate he continued to work. Thus, it is unclear whether the Veteran still works for and/or owns his business, and whether he receives a wage or profits from the company that is above the poverty threshold. Accordingly, a remand is necessary to obtain records that document his earnings history. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide proof that he does not earn a wage or profits from the business, to include tax returns or SSA earnings history from 2012 onward. 2. Contact the Veteran and request that he complete a VA Form 21-4142 for any private treatment for his left sided radiculopathy and ankle conditions. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran's outstanding Omaha VAMC records from January 2017 to the present, to include EMG testing results. 4. Schedule the Veteran for a VA peripheral nerves examination. After a review of the claims file, the examiner should respond to the following: (a.) Does the Veteran have left tarsal tunnel syndrome or other lower left leg neurological condition, separate and distinct from his service-connected sciatica/radiculopathy? (b.) If so, is it as likely as not due to the back condition/residuals of back surgeries? MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lavan 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.