Citation Nr: 22012691
Decision Date: 03/04/22	Archive Date: 03/04/22

DOCKET NO. 17-40 775
DATE: March 4, 2022

ORDER

An initial rating in excess of 10 percent for a lumbar spine disability is denied.

REMANDED

Entitlement to an initial rating in excess of 10 percent for a gastric ulcer disability is remanded.

FINDING OF FACT

For the entire period on appeal, the weight of the weight of the competent and probative evidence is against a finding that the lumbar spine disability resulted in forward flexion to 60 degrees or less, ankylosis, or intervertebral disc syndrome (IVDS).

CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for a lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 2011 to May 2015. 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) that granted service connection for a back disability and a gastric ulcer disability and assigned initial ratings.

This appeal has been before the Board previously. In March 2019 the Board remanded the issues on appeal for the agency of original jurisdiction (AOJ) to obtain the Veteran's identified missing diagnostic imaging test results and schedule new VA examinations. In September 2021, the Board remanded the issues on appeal because the AOJ did not fully comply with the March 2019 Board remand directives. As such, the September 2021 Board remand directed the AOJ to obtain the Veteran's Choice Program records not already on file, to include a copy of an April 2017 diagnostic imaging test results for the lumbar spine and/or gastric ulcer disabilities. Additionally, the September 2021 Board remand directed the AOJ to obtain an addendum opinion, which describes the overall effect of the Veteran's gastric ulcer disability on his health, to include whether the ulcer produces severe, considerable, or less than considerable impairment of the Veteran's health, and whether the symptoms are considered severe, moderately severe, moderate, or mild. The Board notes that the AOJ requested the additional files from the Veteran's Choice Program. See 9/29/2021 VA 10-7131. However, the AOJ received a communication from the Gainesville VAMC, which stated that a thorough search of their systems showed that they had no additional records. See 10/12/2021 Medical Treatment Record  Government Facility. As such, the AOJ determined that the identified records could not be located, were unavailable for review, all efforts to obtain the needed information have been exhausted, and that further attempts to obtain the records would be futile. See 11/5/2021 Final Attempt Letter. After a December 2021 supplemental statement of the case considered the record, this matter was returned to the Board for appellate consideration. Based on the foregoing, the Board concludes that there has been substantial compliance with its prior directive to obtain records. 

 

Increased rating

Disability ratings are determined by applying the criteria set forth in the 

VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007).

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 

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. § 4.71(a) (musculoskeletal system) or § 4.73 (muscle injury); 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) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71(a) 

[or 4.73] criteria.").

However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes "additional functional loss i.e., 'the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance including as due to pain and/or other factors" or "reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination." Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995).

The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

An initial rating in excess of 10 percent for a lumbar spine disability.

The Veteran asserts that he is entitled to a higher rating for his lumbar spine disability. Specifically, the Veteran reported that he experiences daily severe sharp pain and an inability to sit or stand for extended periods. See 2/29/2016 Correspondence. Additionally, the Veteran reported that he used to go to the gym regularly, but in 2016, his back pain worsened, and he stopped going to the gym. Further, the Veteran reported that his back pain impacts his quality of life; 

it prevents him from playing with his son. See 9/14/2020 CAPRI, at pages 86, 107.

Under the General Rating Formula for the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 

30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 evaluation is warranted where the evidence shows 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 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, reversed lordosis, or abnormal kyphosis.

A 30 percent rating is warranted for forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine.

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The criteria for a 50 percent rating are unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Associated objective neurological abnormalities are rated separately under the appropriate diagnostic code. Id., Note (1).

Alternatively, a back disorder can be rated as IVDS based on incapacitating episodes. Under those criteria, found at Diagnostic Code 5243, a ten percent evaluation requires incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months, and 20 percent evaluating requires incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months. Id. DC 5243.

A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks, but more than four weeks and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. There is no corresponding note allowing for the separate evaluation of any associated neurologic abnormalities. 38 C.F.R. § 4.71a.

Note (1) to the General Rating Formula for Diseases and Injuries of the Spine directs that rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a.

"The question of whether a particular medical issue is beyond the competence of a laypersonincluding both claimants and Board membersmust be determined on a case-by-case basis." Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). In this case, the Board is competent to observe that voluntary range of motion testing is going to be more favorable to the Veteran than involuntary range of motion testing.  In DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1592 (32nd ed. 2012), range of motion redirects the reader to "exercise." Passive exercise 

"is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient's own body." Id. at 658. Active exercise is "motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part." It is reasonable from these definitions to deduce that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran's joint farther than he would be able to move it on his own. Therefore, active motion is more favorable to the Veteran, and the results of active motion testing were provided.  Similarly, 

it is reasonable to conclude that non-weightbearing motion is less difficult than weightbearing motion. Therefore, the Board will evaluate the Veteran's range of motion using the available findings of active range of motion and looking at all the relevant medical and lay evidence.

The record shows that the Veteran is currently rated at 10 percent (under DC 5242) from May 16, 2015. The question for the Board is whether higher or separate ratings are warranted during the period on appeal.

The Board finds that a rating in excess of 10 percent is not warranted for the Veteran's service-connected lumbar spine disability.

Turning to the evidence, the Veteran underwent a VA examination in July 2015. The examiner diagnosed the Veteran was diagnosed with degenerative arthritis of the spine. The Veteran reported that he experienced back pain with prolonged sitting, standing, and walking; however, he reported no flare-ups or functional loss. The objective examination showed that the Veteran had forward flexion of 

80 degrees, extension of 30 degrees, left lateral flexion of 30 degrees, right lateral flexion of 30 degrees, right lateral rotation to 30 degrees, and lateral rotation of 

30 degrees. Additionally, the examiner noted that the Veteran had pain with forward flexion, but it did not cause functional loss. Further, the examiner noted no localized tenderness or evidence of pain with weight bearing or additional loss of function or range of motion after three repetitions. In addition, the examiner reported that he was unable to say without mere speculation if pain, weakness, fatigability, or incoordination limited the Veteran's functional ability with repeated use. Furthermore, the Veteran had no muscle spasms, guarding, muscle atrophy, radiculopathy, ankylosis, IVDS, or neurologic abnormalities. Moreover, 

the Veteran had normal muscle strength, sensation, reflexes, and straight leg raise test results. The Veteran did not use assistive devices. The examiner noted that the Veteran ambulated with a brisk and coordinated gait. The Veteran also walked on tiptoes and heels bilaterally without difficulty or discomfort. Finally, the examiner reported no functional impact. See 7/27/2015 C&P Examination. However, 

the Board finds this examination inadequate. Regarding the Veteran's repeated use over a period of time, it does not seem like the examiner made any attempts to elicit information from the Veteran to determine his range of motion after repeated use over a period of time. See 38 C.F.R. §§ 4.40, 4.45; Sharp, 29 Vet. App. 26. 

Without such analysis, the weight of this examination is lower, but it still retains probative value and weight in other areas such as, initial range of motion, limits on functional ability, muscle strength, and neurological findings.

The most recent VA examination was performed in January 2020. The Veteran was diagnosed with lumbar spine degenerative disc disease. The Veteran reported no flare-ups. Regarding functional loss, the Veteran reported due to his disability he is unable to walk for more than 20 to 30 minutes, stand in one position for more than 15 to 20 minutes, run for more than one minute, sit in one position for more than 30 minutes, bend the back, twist the back, push, pull, squat, walk upstairs and downstairs, and lift more than 60 pounds. The objective examination showed that the Veteran had forward flexion of 80 degrees, extension of 25 degrees, left lateral flexion of 25 degrees, right lateral flexion of 25 degrees, right lateral rotation of 

25 degrees, and lateral rotation of 25 degrees. Additionally, the examiner reported that the Veteran had pain with range of motion that caused functional loss. Further, there was evidence of pain with weight bearing and the examiner noted no additional loss of function or range of motion after three repetitions. In addition, the examiner reported that pain would significantly limit the Veteran's functional ability with repeated use; the Veteran would have forward flexion of 75 degrees, extension of 20 degrees, lateral flexion of 20 degrees, and lateral rotation of 

20 degrees. Moreover, the Veteran had no back tenderness, muscle spasms, guarding, muscle atrophy, radiculopathy, ankylosis, neurologic abnormalities, 

or IVDS. The Veteran did not use assistive devices. Also, the Veteran had normal muscle strength, reflexes, and straight leg raise test results, and decreased left lower extremity sensation. Finally, regarding functional impact, the examiner stated that the Veteran reported that due to his disability he is unable to walk for more than 20 to 30 minutes, stand in one position for more than 15 to 20 minutes, run for more than one minute, sit in one position for more than 30 minutes, 

bend the back, twist the back, push, pull, squat, walk upstairs and downstairs, 

and lift more than 60 pounds. See 1/16/2020 C&P Examination. The Board finds the January 2020 VA examination to be adequate for rating purposes, as it is based on an in-person examination of the Veteran, objective testing, and medical expertise. The Board finds that the medical and lay evidence is sufficient to allow it to render a decision that addresses the Mitchell and DeLuca criteria.

The Board finds that the weight of the competent and probative evidence is against a finding that the Veteran's lumbar spine disability resulted in limitation of forward flexion to 60 degrees or less, ankylosis, or prescribed periods of bed rest due to IVDS. See, e.g., 1/16/2020 C&P Examination.

Further, the competent and probative evidence showed that the Veteran did not have an abnormal gait or abnormal spinal contour. Moreover, he had normal strength and reflexes. The Board finds such evidence tends to weigh against a finding of functional ankylosis.

Additionally, the relevant, competent evidence tends to weigh persuasively against a separate rating for associated neurological disability.  In support of this finding, the 2015 and 2020 VA examination reports both reflect no other neurological abnormalities problems (such as bowel or bladder) related to his service-connected back or radiculopathy.

The Board also acknowledges the above-mentioned Veteran's contentions that due to his disability he is unable to walk for more than 20 to 30 minutes, stand in one position for more than 15 to 20 minutes, run for more than one minute, sit in one position for more than 30 minutes, bend the back, twist the back, push, pull, squat, walk upstairs and downstairs, and lift more than 60 pounds. See 1/16/2020 C&P Examination. However, the weight of the evidence does not support a finding that the Veteran's disability picture due to functional loss/limitations with limitation of motion is more nearly approximated by a higher rating. The Board finds that the current rating already contemplates and compensates the Veteran for any functional loss due to pain, fatigability, weakness, and incoordination after repeated use over time. In light of the foregoing, the Board finds that a rating in excess of 10 percent for a low back disability is not warranted.

REASONS FOR REMAND

An initial rating in excess of 10 percent for a gastric ulcer disability.

The Veteran asserts that he is entitled to a higher rating for his gastric ulcer disability. Specifically, the Veteran reported that he experiences intermittent sharp pain in his abdomen; especially when he stretches or bends over to lift things. Additionally, he reported that since his surgery, he experiences intermittent shortness of breath with deep breathing and heavy exertion. Further, he reported that he has not had a normal bowel movement since his surgery. In addition, 

he reported that his bowel movements put enormous pressure on his back, to the point that "it is crippling." Furthermore, he reported that he has at least 3 bowel movements per day with the consistency of toothpaste. Moreover, he reported that since his surgery he cannot eat red meat unless it is "beyond well done," or spicey foods without getting heartburn. Also, he reported an inability to stay in shape since he experiences extreme pain on a daily basis. See 2/29/2016 Correspondence; see also 7/29/2015 C&P Examination; 1/16/2020 C&P Examination.

As stated above, this issue has been remanded several times in the past. In light of this, the Board regrets the additional delay, but finds another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.

Specifically, the Board finds a remand is necessary to comply with the September 2021 remand directives; to obtain an addendum opinion, which describes the overall effect of the Veteran's gastric ulcer disability on his health, to include whether the ulcer produces severe, considerable, or less than considerable impairment of the Veteran's health, and whether the symptoms are considered severe, moderately severe, moderate, or mild.

The Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure substantial compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Substantial, not strict, compliance is needed.

In this regard, after the September 2021 Board remand, in November 2021, an addendum opinion was obtained. The reviewing clinician reported that after review of all available medical treatment records, the objective evidence is against any diagnosis for a new or recurrent gastric ulcer or complaints of a possible gastric ulcer since leaving service. See 11/17/2021 C&P Examination. However, the Board finds this opinion inadequate. The reviewing clinician only relied on the January 2020 VA examination, which noted that the Veteran did not have any signs or symptoms due to any stomach or duodenum disability, any incapacitating episodes due to signs or symptoms of any stomach or duodenum disability, or any other physical finding, complications, signs, or symptoms related to his gastric ulcer disability. However, the reviewing clinician did not consider the July 2015 

VA examination findings, that the Veteran had periodic abdominal pain. As such, the reviewing clinician did not opine regarding whether the Veteran's gastric ulcer disability produces severe, considerable, or less than considerable impairment of the Veteran's health, and whether the symptoms are considered severe, moderately severe, moderate, or mild, as per the September 2021 Board remand directives.

As such, on remand, the AOJ is to obtain an addendum opinion that describes the overall effect of the Veteran's gastric ulcer disability on his health, to include whether the ulcer produces severe, considerable, or less than considerable impairment of the Veteran's health, and whether the symptoms are considered severe, moderately severe, moderate, or mild.

This matter is REMANDED for the following actions:

1. Obtain any and all of the Veteran's outstanding VA treatment records. Document all requests for information as well as responses in the claims file. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 

2. Return the claims file to the examiner who authored the November 2021 VA stomach and duodenal conditions addendum opinion. A copy of this remand request should also be provided.

After review of the claims file, the reviewing clinician is to provide a retrospective opinion, which describes the overall effect of the Veteran's gastric ulcer on his health, to include whether the ulcer produces severe, considerable, or less than considerable impairment of the Veteran's health, and whether the symptoms are considered severe, moderately severe, moderate, or mild, over the period on appeal (claim filed in March 2015).  Please thoroughly explain your answer, to include references to relevant evidence of record, as appropriate, and/or medical literature.

If the clinician needs an in-person examination to provide this opinion, then take the necessary steps to contact the Veteran and schedule the appropriate examination.  

 

 

Paul Sorisio

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.F., 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.