DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

J.L. BURROUGHS · 2022 · Case ID: 22069917

MIXED

Summary

The veteran, who served in the United States Marine Corps from July 1974 to August 1995, appeals the denial of increased ratings for his cervical spine and lumbar spine disabilities, as well as claims for neurological disabilities in the upper extremities, left lower extremity radiculopathy, paresthesias with weakness, and special monthly compensation (SMC) and total disability based on individual unemployability (TDIU). The Board denied increased ratings for the neck and back disabilities, finding that while the veteran experienced pain and limited motion, the evidence did not demonstrate ankylosis, which is required for higher ratings under Diagnostic Code 5242. The Board noted that the veteran's existing ratings for these conditions were not being increased. The Board also found no evidence to support a separate rating for a neurological disability of the right lower extremity. However, the Board remanded several issues for further development. These include entitlement to separate ratings for neurological disabilities of the upper extremities, an increased rating for left lower extremity radiculopathy prior to August 29, 2019, and the evaluation of paresthesias with weakness in the left quadriceps and anterior thigh, as these were not adequately addressed in prior decisions or examinations. The issues of SMC and TDIU were also remanded as they are intertwined with the increased rating claims.

Rationale

No findings of ankylosis in cervical spine; Pain and limited motion do not meet criteria for higher rating; July 2022 VA examination compliant, did not reflect ankylosis

Service Branch

MARINE CORPS

Special Benefit

TDIU; SMC

Diagnostic Code

5242

Docket No.

15-26 088

Full Decision Text

Citation Nr: 22069917
Decision Date: 12/18/22 Archive Date: 12/18/22

DOCKET NO. 15-26 088
DATE: December 18, 2022

ORDER

Entitlement to an increased rating in excess of 30 percent for cervical spine traumatic arthritis ("neck disability") is denied.

Entitlement to an increased rating in excess of 40 percent for lumbar spine traumatic arthritis ("back disability") is denied.

REMANDED

Entitlement to separate ratings for neurological disability of the upper extremities is remanded.

Entitlement to an increased rating in excess of 20 percent for left lower extremity radiculopathy, to include a rating prior to August 29, 2019, is remanded.

Entitlement to an increased rating in excess of 30 percent, for paresthesias with weakness, left quadriceps and anterior thigh already compensated under Diagnostic Code 8526 (claimed as left foot drop), to include under extraschedular criteria and/or a separate rating, is remanded.

Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(k) or (l) is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

FINDING OF FACT

Throughout the period on appeal, the Veteran's neck and back disabilities have been manifested by pain and limited motion; objective testing did not demonstrate unfavorable ankylosis of the cervical or thoracolumbar spines.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 30 percent for neck disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5242.

2. The criteria for a rating in excess of 40 percent for back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5242.

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from July 1974 to August 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of an agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA).

Historically, the issues on appeal were denied by the Board in August 2018. In June 2019, the United States Court of Appeals for Veterans Appeals ("Court") granted the parties' joint motion for remand (JMR), vacated the Board's August 2018 decision, and remanded the matters for review. In December 2019, the issues were remanded by the Board for additional development. The Board again denied the matters on appeal in a February 2021 decision. The Veteran appealed the Board's February 2021 decision to the Court. In November 2021, the Court granted a JMR, vacated the Board's February 2021 decision, and remanded the matters to the Board for review. In March 2022, the Board remanded the issues for additional development, and they have been returned to the Board for review.

The Board has added the issue of entitlement to a rating in excess of 20 percent for radiculopathy, to include a rating prior to August 29, 2019, to the issues on appeal. In this respect, the November 2021 JMR found that the Board erred in its prior decision by not addressing whether a separate rating for radiculopathy for the left lower extremity was warranted prior to August 29, 2019, and whether a higher rating was warranted. Accordingly, it is properly listed as an issue on appeal.

Likewise, concerning the issue of entitlement to separate ratings for neurological disability of the upper extremities, the November 2021 JMR found that the Board erred in its last decision by not addressing whether separate ratings were warranted for neurological disabilities associated with his neck disability.

The Board finds that the remand directives as to obtaining private treatment records, updated VA treatment records, and adequate VA examinations concerning the Veteran's back and neck disabilities have been completed, and the Board may proceed with a decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Increased Rating

Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries
by not addressing whether separate ratings were warranted for neurological disabilities associated with his neck disability.

Increased Rating

Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Separate 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007).

The Veteran is currently in receipt of 30 and 40 percent ratings for his neck and back disabilities, respectively, in accordance with Diagnostic Code 5242. As such, he may be awarded a 40 percent rating for his neck disability, and 50 percent rating for his back disability, upon evidence of the following:

Unfavorable ankylosis of the entire 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (5).

VA regulations provide that spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or if applicable the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, under Diagnostic Code 5243, whichever would result in a higher rating. 38C.F.R. §4.71a. Under the recent amendments to the spine criteria that became effective February 7, 2021, Diagnostic Code 5243 (IVDS) is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 is to be assigned for all other disc diagnoses. See 85 Fed. Reg. 76453 (February 7, 2021). Regardless of the change, the Veteran has not been diagnosed with IVDS at any point during the appellate period and was never rated under Code 5243. Accordingly, the Board will limit the analysis under Diagnostic Code 5242.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App
this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

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 (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 § 4.71a [or 4.73] criteria.").

The Board finds that higher ratings are not warranted for the Veteran's neck and back disabilities. To warrant higher ratings under the rating schedule, there must be ankylosis. None of the VA examination reports or the associated VA and private treatment records reflect findings of ankylosis of the cervical or thoracolumbar spine. To the extent that earlier VA examination reports, i.e., prior to February 2020, may not have provided adequate range-of-motion findings compliant with Correia and Sharp, the Board notes that active range of motion testing usually results in further limitation than passive range of motion testing. See Massie v. Shinseki, 25 Vet. App. 123, 131 (2011); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). The earlier VA examination reports, i.e., prior to February 2020, are still the most probative evidence concerning the Veteran's functional limitations at such time. And, again, higher ratings are only warranted for ankylosis, and are not based on specific range-of-motion measurements. Moreover, the 2020 and 2022 VA examination reports are compliant and adequate and do not reflect any findings of ankylosis. Though the Veteran certainly demonstrated limited motion of the neck and back due to his disabilities, at no time were his cervical or thoracolumbar spines fixed in flexion or extension to demonstrate ankylosis. Thus, the Board finds that the Veteran does not have ankylosis to warrant increased ratings for his back and neck disabilities.

In offering this conclusion, the Board does not disregard the Veteran's contention that higher ratings are warranted for his disabilities. However, he is not competent to identify a specific level of disability according to the applicable diagnostic code. See Jandreau, 492 F.3d at 1376-77. Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran's disabilities during the period on appeal and these medical findings do not warrant a rating in excess of 30 percent for the Veteran's neck disability or in excess of 40 percent for his back disability.

The Board has considered the Veteran's statements regarding the nature and severity of his disabilities and recognizes the functional impairment and loss experienced by the Veteran with respect to his neck
the Board does not disregard the Veteran's contention that higher ratings are warranted for his disabilities. However, he is not competent to identify a specific level of disability according to the applicable diagnostic code. See Jandreau, 492 F.3d at 1376-77. Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran's disabilities during the period on appeal and these medical findings do not warrant a rating in excess of 30 percent for the Veteran's neck disability or in excess of 40 percent for his back disability.

The Board has considered the Veteran's statements regarding the nature and severity of his disabilities and recognizes the functional impairment and loss experienced by the Veteran with respect to his neck and back disabilities. The Board has considered these symptoms, to include as discussed by the recent July 2022 VA examination report, flare-ups and periods of repeated use that result in limitation of motion of the neck and back. However, the Veteran has at no time described functional impairment and loss to the degree that he has fixed flexion or extension akin to a finding of ankylosis. Moreover, that has also not been demonstrated in the objective medical findings. For example, the July 2022 VA examiner found that the Veteran's back flexion would be estimated to be 35 degrees during a period of flare-up and repeated use over time, and extension would be 10 degrees. The July 2022 VA examiner estimated that the Veteran's cervical spine flexion would be 35 degrees during a period of flare-up and repeated use, and extension would be 5 degrees. Higher ratings are not warranted on the basis of additional functional impairment and loss.

Concerning separate ratings for neurological manifestations of his back disability, the Veteran has already been assigned a separate 20 percent rating for left lower extremity radiculopathy effective August 29, 2019, and a 30 percent rating for paresthesias with weakness, left quadriceps and anterior thigh. These matters are being remanded by the Board for further development and will not be discussed in this decision.

As to the right lower extremity, there is no evidence of a neurological disability to warrant a separate rating. VA examination reports show that the Veteran has consistently reported symptoms pertaining to the left lower extremity for which the Veteran is service connected, but not the right lower extremity. VA examination reports and associated treatment records do not show diagnoses pertaining to the right lower extremity. Thus, the Board finds that a separate rating for a neurological disability of the right lower extremity is not warranted.

As to entitlement to a separate rating for neurological manifestations related to the neck disability, the Board has remanded the matter for additional development. Thus, the Board will not address this matter further.

Accordingly, the evidence is persuasively against the claims, there is no doubt to be resolved. The claims are denied.

REASONS FOR REMAND

Entitlement to separate ratings for neurological disability of the upper extremities is remanded.

Entitlement to an increased rating in excess of 20 percent for left lower extremity radiculopathy, to include a rating prior to August 29, 2019, is remanded.

Entitlement to SMC under 38 U.S.C. § 1114(k) or (l) is remanded.

Entitlement to a TDIU is remanded.

In March 2022, the Board remanded the Veteran's claims for additional development. The remand requested that the Veteran be provided new VA examinations for his neck and back disabilities. As discussed by the November 2021 JMR, specifically concerning the neurological manifestations associated with the Veteran's neck disability, the parties found that the Board erred by not addressing symptoms described in a December 2011 VA examination report and April 2012 private treatment record. The Veteran was provided a VA examination in July 2022, but the examiner did not provide a retrospective medical opinion. Thus, the Board finds that remand of the issue of entitlement to separate ratings for neurological disability of the upper extremities is required.

As to the issue of entitlement to an increased rating in excess of 20 percent for left lower extremity radiculopathy, to include a rating prior to August 29, 2019, the Board finds that a retrospective medical opinion is required. In this regard, the November 2021 JMR determined that the Board erred in its February 2021 decision when not addressing whether "higher or separate ratings are warranted for lumbar radiculopathy for the entire period on appeal." While the Board remanded the Veteran's case to obtain a new VA examination for his back and neck disabilities, and broadly asked that the examiner provide a retrospective medical opinion concerning radiculopathy citing the December 2011 VA examination report and April 2012 private treatment record, the examiner did not provide any retrospective medical opinion. Given the broad wording of the Board's remand, and the complicated medical picture presented by the Veteran's service-connected left lower extremity radiculopathy and his service-connected paresthesias with weakness, left quadriceps and anterior thigh, to include symptoms pertaining to the left lower extremity, prior to August 29, 2019, remand is necessary for a retrospective medical opinion concerning the onset and nature of the Veteran's left lower extremity radiculopathy.

The Board also finds that the issue of entitlement to a rating in excess of 30 percent for paresthesias with weakness, left quadriceps and anterior thigh, must be remanded. As discussed in the November 2021 JMR, the parties agreed that, in its prior decision, the Board failed to address whether the Veteran's disability was properly rated. It was noted that the Veteran's disability was currently assigned a 30 percent rating under Diagnostic Code 8526, but that consideration was required for a separate rating under Diagnostic Code 8520 or 8521 because Code 8526 does not address the foot. As noted above, the Veteran has been service connected for left lower extremity radiculopathy under Diagnostic Code 8520 from August 29, 2019. However, as that issue must be remanded for a retrospective medical opinion, that opinion may warrant the assignment of an earlier effective date for the rating for left lower extremity radiculopathy, which in turn would impact the evaluation of the paresthesias with weakness, left quadriceps, and anterior thigh. Thus, these issues are inextricably intertwined.

Likewise, the issues of entitlement to SMC and TDIU are inextricably intertwined with the increased rating issues, and adjudication must be deferred.

The matters are REMANDED for the following action:

1. Request a retrospective medical opinion concerning the neurological manifestations related to the Veteran's neck disability. The claims file must be made available for review. The examiner must address whether there is a neurological disability of the upper extremities at any point during the appeal period, and discuss the findings in the December 2011 VA examination report, and April 2012 private treatment record.

Rationale must be provided for any opinion reached.

2. Request a retrospective medical opinion concerning the onset and nature of the Veteran's left lower extremity radiculopathy from a suitably qualified clinician. The claims file must be made available for review. The clinician must opine concerning the manifestations of the Veteran's left lower extremity radiculopathy prior to August 29, 2019. The examiner must attempt to separate any findings related to the left lower extremity radiculopathy prior to August 29, 2019, with the symptoms of the Veteran's diagnosed paresthesias with weakness, left quadriceps, and anterior thigh, and attempt to address what symptoms are attributed to each diagnosis. In doing so, the examiner must discuss the findings of left foot drop.

Rationale must be provided for any opinion reached.

3. Following completion of the above, the matters must be readjudicated. If any benefit sought remains denied, issue a supplemental statement of the case, and return the matters to the Board for review.

J.L. BURROUGHS

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Seay, 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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