INTERVERTEBRAL DISC SYNDROME

JAMES L. MARCH · 2021 · Case ID: 21017398

MIXED

Summary

The veteran, who served in the Navy from July 1991 to May 2015, appeals the denial of a higher rating for lumbosacral strain and the denial of service connection for right ankle and right foot disabilities, as well as an increased rating for tension headaches. The Board granted a 40 percent rating for lumbosacral strain throughout the period on appeal, finding that the veteran's symptoms remained consistent and met the criteria for that rating, specifically noting forward flexion limited to 0-20 degrees during flare-ups as documented by a private physician. The Board found the April 2017 VA examination inadequate for rating purposes due to inability to measure range of motion during a flare-up. The Board denied a higher rating than 40 percent, as the evidence did not support unfavorable ankylosis of the thoracolumbar spine. The claims for right ankle and right foot disabilities, as well as tension headaches, were remanded for further development. For the right ankle, the Board found the prior VA opinion inadequate and required an addendum opinion addressing functional impairment and nexus to service, referencing Saunders v. Wilkie. For the right foot, the Board noted the prior VA examination failed to address secondary service connection and aggravation by the service-connected lumbosacral strain or radiculopathy, requiring an addendum opinion. The tension headache claim was remanded for a supplemental statement of the case and review of a new VA examination received in February 2021.

Rationale

Private physician documented forward flexion limited to 0-20 degrees during flare-ups.; Consistent statements from the veteran regarding constant low back pain.; Evidence supports 40 percent rating criteria, not 50 percent for unfavorable ankylosis.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-19 168

Full Decision Text

Citation Nr: 21017398
Decision Date: 03/25/21 Archive Date: 03/25/21

DOCKET NO. 17-19 168
DATE: March 25, 2021

ORDER

A rating of 40 percent, but no higher, for a lumbosacral strain disability is granted.

REMANDED

The issue of service connection for a right ankle disability is remanded.

The issue of service connection for a right foot disability is remanded.

The issue of a compensable rating for tension headaches is remanded.

FINDING OF FACT

Throughout the period on appeal, the Veteran’s lumbosacral strain disability has been characterized by forward flexion of the thoracolumbar spine limited to 30 degrees or less.

CONCLUSION OF LAW

The criteria for a rating of 40 percent, but no higher, for lumbosacral strain disability throughout the entire period on appeal have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.71a, Diagnostic Code (DC) 5237.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty served in the Navy from July 1991 to May 2015. These matters come before the Board of Veterans’ Appeals (Board) from a November 2015 rating decision for the issue of an increased rating for lumbosacral strain and August 2016 rating decision for the issues of an increased rating for tension headaches and service connection for a right ankle disability and a right foot disability.

In a February 2019 Board decision, the issue of service connection for a right foot disability was remanded to obtain a VA examination. The claim has since been returned to the Board for review. Although the Board regrets the delay in yet another remand, for the reasons indicated in the discussion below, the agency of original jurisdiction (AOJ) has not substantially complied with the remand directives and further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998).

Additionally, in the February 2019 Board decision, the issues of a compensable rating for tension headaches and service connection for a right ankle disability were denied. The Veteran appealed the February 2019 Board decision to the Court of Appeals for Veterans’ Claims (Court). In a July 2020 decision, the Court vacated the February 2019 Board decision with respect to the issues of a compensable rating for tension headaches and service connection for a right ankle disability and remanded these issues for further proceedings consistent with its decision.

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007).

L
v. West, 12 Vet. App. 119, 126 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

Lumbosacral Strain Disability

The Veteran’s lumbosacral strain disability is evaluated under 38 C.F.R. § 4.71a, DC 5237. Throughout the period on appeal, the Veteran’s lumbosacral strain disability is assigned a 10 percent rating for the period prior to June 14, 2019, and a 40 percent rating for the period thereafter.

Under DC 5237, a rating of 10 percent is warranted when the evidence demonstrates:

• forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees;

• forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees;

• combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees;

• combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees;

• 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.

38 C.F.R. § 4.71a, DC 5237.

A rating of 20 percent is warranted when the evidence demonstrates:

• forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees;

• forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees;

• the combined range of motion of the thoracolumbar spine not greater than 120 degrees;

• the combined range of motion of the cervical spine not greater than 170 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.

Id.

A rating of 30 percent is warranted when the evidence demonstrates:

• forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.

Id.

A rating of 40 percent is warranted when the evidence demonstrates:

• unfavorable ankylosis of the entire cervical spine;

• forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

Id.

A rating of 50 percent is warranted when the evidence demonstrates:

• unfavorable ankylosis of the entire thoracolumbar spine.

Id.

Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269).

VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change.

VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422
Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change.

VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim.

For purposes of the Veteran’s disability, the rating criteria did not change.

The Board has reviewed the evidence of record and finds that a rating of 40 percent, but no higher, is warranted throughout the entire period on appeal for the Veteran’s lumbar spine disability.

The Veteran asserts that he is entitled to a higher disability rating for his lumbosacral strain disability. Specifically, in the April 2017 VA Form 9, the Veteran asserted that his low back pain is constant in his daily life. Additionally, in a statement submitted in October 2019, the Veteran again stated that he has constant low back pain and asserted that his service-connected radiculopathy had worsened.

As noted above, in the February 2019 Board decision, the matter of an increased rating for the Veteran's lumbosacral strain disability was remanded to obtain a new VA examination. Specifically, the Board found that the April 2017 VA examination was inadequate because the examiner determined that measurements for additional loss of range of motion during a flare-up could not be provided without resorting to mere speculation as the examination was not conducted during a flare-up. Thus, the findings of the April 2017 VA examination are adequate for rating assignment purposes.

Next, in June 2019, the Veteran submitted a disability and benefits questionnaire (DBQ) completed by his private physician. The Veteran reported weakness, inability to perform repetitive lifting or bending, and pain when sitting, standing, or walking. The Veteran also reported experiencing flare-ups that cause pain so intense that he can barely move. The private physician diagnosed lumbosacral strain and radiculopathy. Upon physical examination, the private physician documented that the Veteran’s forward flexion is 0 to 90 degrees. The private physician documented that the Veteran experiences additional functional loss due to flare-ups or with repeated use over time, and the examiner determined that this additional loss would cause forward flexion to be limited to 0 to 20 degrees. The private physician also determined that the Veteran’ does not have any guarding or muscle spasms resulting in abnormal gait or spinal contour, does not have invertebral disc disease, and does not have any ankylosis of the spine.

Additionally, in October 2019, the Veteran underwent an in-person VA examination with claims file review regarding his lumbosacral strain disability. The Veteran reported low back pain with radiating pain. The Veteran reported that he experiences flare-ups that cause increased pain when carrying and lifting. Upon examination, the examiner documented that the Veteran’s range of motion testing indicated normal findings without limitations. The examiner noted that the examination was not conducted during a flare-up but also noted that the Veteran's flare-ups cause additional
physician also determined that the Veteran’ does not have any guarding or muscle spasms resulting in abnormal gait or spinal contour, does not have invertebral disc disease, and does not have any ankylosis of the spine.

Additionally, in October 2019, the Veteran underwent an in-person VA examination with claims file review regarding his lumbosacral strain disability. The Veteran reported low back pain with radiating pain. The Veteran reported that he experiences flare-ups that cause increased pain when carrying and lifting. Upon examination, the examiner documented that the Veteran’s range of motion testing indicated normal findings without limitations. The examiner noted that the examination was not conducted during a flare-up but also noted that the Veteran's flare-ups cause additional loss, including pain. The examiner documented that the Veteran’s range of motion testing for additional functional loss due to flare-ups or with repeated use over time again indicated normal findings without limitations. The examiner also determined that the Veteran’ does not have any guarding or muscle spasms resulting in abnormal gait or spinal contour, does not have invertebral disc disease, and does not have any ankylosis of the spine.

Subsequently, in a July 2020 rating decision, the Veteran was assigned a 40 percent disability rating effective the date of the private DBQ, June 14, 2019.

The Board finds that the probative evidence of record demonstrates that a 40 percent rating is warranted throughout the entire period on appeal. First, the evidence demonstrates that the Veteran’s lumbosacral strain disability has remained consistent throughout the period on appeal and did not suddenly worsen starting in June 2019 when the DBQ was completed. Specifically, in the April 2017 VA Form 9, the Veteran stated that his low back pain has been constant and in the October 2019 statement the Veteran again stated that his low back pain has been constant while asserting that only his radiculopathy has worsened. Therefore, the Board finds that the Veteran’s credible and consistent statements demonstrate that his symptoms related to his lumbosacral strain disability have remained consistent throughout the period on appeal. Moreover, as noted above, the prior diagnostic testing necessary for rating purposes that were provided in the April 2017 VA examination are inadequate. Second, in the June 2019 DBQ, the Veteran's private physician specifically determined that the Veteran’s forward flexion is 0 to 90 degrees and that during a flare-up or with repeated use over time the Veteran’s forward flexion would be limited to 0 to 20 degrees. Additionally, the June 2019 DQB indicates that the Veteran experiences flare-ups with pain so intense that he can barely move and that his low back pain interferes with most activities including standing, sitting, walking, lifting, and bending. The Board finds that this evidence is consistent with the 40 percent rating criteria, which requires forward flexion of the thoracolumbar spine limited to 30 degrees or less. Further, the medical evidence indicates that the Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine, as required to warrant a 50 percent rating. Therefore, the Board finds that a 40 percent rating, but no higher, is warranted throughout the entire period on appeal.

The Board notes that the Veteran’s medical treatment records indicate complaints of an ongoing lumbosacral strain disability; however, the records do not contain the findings and diagnostic testing necessary to properly assign a disability rating. Therefore, the Board finds these medical treatment records to be of little probative value.

Resolving any remaining reasonable doubt in the Veteran’s favor, the Board finds that the requirements for establishing a rating of 40 percent, but no higher, for the Veteran’s lumbosacral strain disability throughout the entire period on appeal have been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is granted.

REASONS FOR REMAND

Right Ankle Disability

The Board finds that further development is necessary regarding the Veteran’s claim of service connection for a right ankle disability.

As noted above, in the February 2019 Board remand, the Veteran's claim of service connection for a right ankle disability was denied, and the Veteran appealed to the Court. In the July 2020 decision, the Court found that the Board failed to provide adequate reasons or bases for its determination that the Veteran's right ankle symptoms did not cause functional impairment. Specifically, the Court noted that the Board relied on the findings of the June 2016 VA examination, in which the examiner found that the Veteran’s right ankle disability does not result in functional impairment; however, the examiner’s findings also indicated that the Veteran’s right ankle symptoms include decreased range of motion, pain in the ankle when carrying heavy loads, and pain that interferes with standing. Thus, the Court remanded
2019 Board remand, the Veteran's claim of service connection for a right ankle disability was denied, and the Veteran appealed to the Court. In the July 2020 decision, the Court found that the Board failed to provide adequate reasons or bases for its determination that the Veteran's right ankle symptoms did not cause functional impairment. Specifically, the Court noted that the Board relied on the findings of the June 2016 VA examination, in which the examiner found that the Veteran’s right ankle disability does not result in functional impairment; however, the examiner’s findings also indicated that the Veteran’s right ankle symptoms include decreased range of motion, pain in the ankle when carrying heavy loads, and pain that interferes with standing. Thus, the Court remanded the matter for the Board to support its decision with an adequate statement of reasons or bases.

Presently, the Board finds that additional development is required in light of Saunders v. Wilkie, in which the Federal Circuit held that pain alone may constitute a disability, even without an identifiable underlying pathology, provided that such pain is productive of functional impairment. 886 F.3d 1356, 1368 (Fed. Cir. 2018). As noted in the July 2020 Court decision, although the July 2016 VA examiner specifically opined that the Veteran does not have a diagnosed right ankle disability and that his right ankle symptoms do not cause functional impairment, this opinion is not supported by a well-reasoned explanation regarding how the cited evidence precluded a positive opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). When VA obtains an examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, this matter must be remanded for an addendum VA examination opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007).

Right Foot Disability

The Board finds that further development is necessary regarding the Veteran’s claim of service connection for a right foot disability.

As noted above, in the February 2019 Board remand, the issue of service connection for a right foot disability was remanded to obtain a VA examination. In the remand directives the Board specifically instructed that upon examination the examiner should address whether the Veteran's right foot disability was caused directly by service and whether the Veteran's right foot disability was caused or aggravated by his service-connected lumbosacral strain disability or right lower extremity radiculopathy.

Presently, upon review of the October 2019 VA examination regarding the Veteran's right foot disability, the Board finds that the examiner addressed only whether the Veteran's right foot disability was caused directly by service and failed to address whether the Veteran’s right foot disability was caused or aggravated by his service-connected lumbosacral strain or right lower extremity radiculopathy. Thus, this matter must be remanded for an addendum VA examination opinion to properly address secondary service connection and aggravation. Barr v. Nicholson, 21 Vet. App. 303 (2007).

Tension Headaches

The Board finds that further development is necessary regarding the Veteran’s claim of an increased rating for tension headaches.

In February 2021, the AOJ received a new VA examination regarding the Veteran’s tension headaches. This evidence was not previously considered by the AOJ, including in the July 2020 supplemental statement of the case (SSOC). As the Veteran has the right to an initial review of the evidence by the AOJ prior to the Board issuing a decision on this matter, a remand is therefore necessary at this time. 38 C.F.R. §§ 19.31, 19.37.

The matters are REMANDED for the following action:

1. Provide the Veteran and his representative with a supplemental statement of the case (SSOC) concerning the issue of an increased rating for tension headaches.

2. Obtain an addendum opinion regarding the Veteran’s claim of service connection for a right ankle disability. The claims folder must be made available to and be reviewed by the examiner. Whether another examination is needed is left to the examiner’s discretion. The examiner should address the following:

a. Whether the Veteran’s reports of right ankle symptoms during the pendency of the appeal, including decreased range of motion, pain in the ankle when carrying heavy loads, and pain that interferes with standing, are productive of functional impairment. The examiner must be advised that it is not necessary for the pain to be attributed to a specific diagnosis to be considered a service-connected disability so long as the pain is productive of functional impairment.

b. If the Veteran's right ankle symptoms are productive of functional impairment, is it at least as likely as not (50 percent or greater probability) that the Veteran’s right ankle symptoms had their onset during service or are otherwise related to service, including the Veteran's
examiner’s discretion. The examiner should address the following:

3. Obtain an addendum opinion regarding the Veteran’s claim of service connection for a right foot disability. The claims folder must be made available to and be reviewed by the examiner. Whether another examination is needed is left to the examiner’s discretion. The examiner should address the following:

a. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s right foot disability was caused by his service-connected lumbosacral strain disability or right lower extremity radiculopathy?

b. Whether the Veteran’s right foot disability is at least as likely as not aggravated (increased in severity) beyond the disability’s natural progression by his service-connected lumbosacral strain disability or right lower extremity radiculopathy? The examiner is advised that aggravation means any increase in the severity of the underlying disability beyond its natural progression.

c. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation.

The examiner should also consider all lay statements submitted by the Veteran regarding his disability.

A rationale for all opinions is to be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the

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limits of current medical knowledge in providing an answer to that particular question(s).

JAMES L. MARCH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board A. Page-Nelson, 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.

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