Citation Nr: 18131288
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 18-11 209
DATE:	August 31, 2018
ORDER
Entitlement to service connection for tinnitus is granted.
Entitlement to service connection for an acquired psychiatric disorder is granted.  
Entitlement to service connection for a right knee disorder is granted.
Entitlement to service connection for chest pain is denied.
Entitlement to service connection for hypertension is denied.
Entitlement to service connection for a right shoulder disorder is denied.
Entitlement to service connection for a right wrist disorder is denied.
An evaluation of 50 percent for tension headaches is granted from March 13, 2017 to February 4, 2018.  
An evaluation greater than 50 percent for tension headaches is denied from February 5, 2018.  
A compensable evaluation for bilateral hearing loss is denied.
An evaluation greater than 10 percent for a cervical disorder is denied.
Entitlement to an evaluation greater than 20 percent for a low back disorder from February 6, 2015 to May 3, 2018 is denied.
Entitlement to an evaluation greater than 40 percent for a low back disorder from May 4, 2018 is denied.
REMANDED
Entitlement to service connection for a right ankle disorder is remanded.
Entitlement to service connection for a left shoulder disorder is remanded.
Entitlement to a compensable evaluation for dermatitis is remanded.
FINDINGS OF FACT
1. Service caused the Veteran’s tinnitus.
2. The Veteran’s service-connected low back and cervical disorders caused his acquired psychiatric disorder.
3.  The Veteran’s service-connected low back disorder caused his right knee disorder.
4. The Veteran does not have a cardiac disorder.
5. The Veteran does not have hypertension.
6. The Veteran does not have a right shoulder disorder.
7. Service did not the Veteran's right wrist disorder.
8. The Veteran’s headaches, manifested by prostrating attacks occurring on average more than once per month, are shown during the pendency of the appeal.  These attacks produce severe economic inadaptability.
9. The Veteran has Level I hearing loss bilaterally. 
10. The Veteran’s cervical disorder is manifested, at worst, by forward flexion of 40 degrees with pain, with no evidence of ankylosis, and no diagnosis of Intervertebral Disc Syndrome (IVDS).
11. Range of motion testing, even contemplating functional limitation due to pain, weakness, stiffness, fatigability, lack of endurance, and repetitive motion etc., has not been shown to functionally limit the forward flexion of the Veteran’s cervical spine to 40 degrees or less or shown to functionally limit the combined range of motion of the Veteran’s cervical spine to 170 degrees or less.  
12. From February 6, 2015 to May 3, 2018, range of motion testing, even contemplating functional limitation due to pain, weakness, stiffness, fatigability, lack of endurance, and repetitive motion etc., has not been shown to functionally limit the forward flexion of the Veteran’s thoracolumbar spine to 60 degrees or less or shown to functionally limit the combined range of motion of the Veteran’s thoracolumbar spine to 120 degrees or less.  
13. From May 4, 2018, range of motion testing, even contemplating functional limitation due to pain, weakness, stiffness, fatigability, lack of endurance, and repetitive motion etc., has not been shown to functionally limit the forward flexion of the Veteran’s thoracolumbar spine to 30 degrees or less or shown to functionally limit the combined range of motion of the Veteran’s thoracolumbar spine to 120 degrees or less.  
CONCLUSIONS OF LAW
1. The criteria for service connection for tinnitus are met.  38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385.  
2. The criteria for service connection for an acquired psychiatric disorder, as secondary to service-connected low back and cervical disorders, have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.
3.  The criteria for service connection for a right knee disorder, as secondary to a service-connected low back disorder, have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.
4. The criteria for service connection for a cardiac disorder, claimed as chest pains, have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102.
5. The criteria for service connection for hypertension have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102.
6. The criteria for service connection for a right shoulder have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102.
7. The criteria for service connection for a right wrist disorder have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102.
8. From March 13, 2017 to February 4, 2018, the criteria for a rating of 50 percent for headaches have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8100. 
9. From February 5, 2018, the criteria for a rating greater than 50 percent for headaches have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8100. 
10. The criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100. 
11. The criteria for a rating greater than 10 percent for a cervical disorder have not been approximated.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Codes 5235-5243.
12. From February 6, 2015 to May 3, 2108, the criteria for a rating greater than 20 percent for a low back disorder have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Codes 5235-5243.
13. From May 4, 2018, the criteria a rating greater than 40 percent for a low back disorder have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Codes 5235-5243.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active military service from May 1979 to November 1984 and from April 2007 to February 2012.  However, pursuant to a May 2015 Administrative Decision, the Department of Veterans Affairs (VA) found the Veteran was ineligible for VA benefits for his service from January 2011 to February 2012.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of June 2015, June 2017, and February 2018 of a VA Regional Office (RO).
VA granted the Veteran a total disability rating based upon individual unemployability effective February 5, 2018.

Service Connection
Service Connection – Direct
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 
The United States Court of Appeals for the Federal Circuit has held that a three-element test must be satisfied in order to establish entitlement to service connection.  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the “nexus” requirement). Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) ((quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). 
Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases—namely those listed in 38 C.F.R. § 3.309(a)—benefit from a somewhat more relaxed evidentiary standard.  See Walker, 708 F3d. at 1339 (holding that “[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.”).  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”).  38 C.F.R. § 3.303(b).  
Service Connection – Secondary
Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998).
Issue 1: Entitlement to service connection for tinnitus.
The Veteran has tinnitus, so the first prong of service connection is met.  Also, VA found, in the June 2015 rating decision, that the Veteran was likely exposed to acoustic trauma due to his military occupational specialty.  This satisfies the second prong of service connection.
This case turns on the third prong.  Because the Veteran has been diagnosed with tinnitus, and tinnitus is an organic disease of the nervous system under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) for chronic disabilities apply, and the claim may be supported by evidence of a continuity of symptomatology after service. 
To establish continuity of symptomatology, the United States Court of Appeals for Veterans Claims has held a Veteran must show “(1) that a condition was ‘noted’ during service, (2) with evidence of post-service continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the post-service symptomatology.”  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question, that is, whether the relationship and disability are capable of lay observation. Savage v. Gober, 10 Vet. App. 488, 497 (1997); accord Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).
The Veteran asserts he has experienced tinnitus since discharge.  He is competent to report post-service symptoms of tinnitus.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  See 38 C.F.R. § 3.159 (a)(2).
Once evidence is determined to be competent, the Board must determine whether the evidence is also credible.  
Nothing contradicts the Veteran’s statements that he has had tinnitus since 2010, which the Board has found to be fully credible, especially in light of his work on aircraft flight lines.  Accordingly, this militates in favor of a nexus between the Veteran’s current tinnitus and any acoustic trauma during service, and service connection is granted.  Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000).
Issue 2: Entitlement to service connection for an acquired psychiatric disorder.
In February 2017, a VA staff psychiatrist diagnosed the Veteran with "major depressive disorder, moderated."  This diagnosis satisfies the first prong of a secondary service connection claim. 
VA has service connected the Veteran’s low back and cervical disorders.  This satisfies the second prong of a secondary service connection claim.
The appeal turns on the third prong of a secondary service connection claim – medical nexus.  The VA compensation examiner in June 2015 denied a nexus for posttraumatic stress disorder because the Veteran did not merit a diagnosis at that time.  However, the Board has broadened the scope of the Veteran's claim pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009).  The undersigned observes that the VA staff psychiatrist based his depression diagnosis in large part on the Veteran's "chronic pain and severe low back pain."  Accordingly, the third prong of a secondary service connection claim is satisfied.
Based on the foregoing, the Veteran has met all three prongs of a secondary service connection claim.  The Board will grant the appeal.
Issue 3: Entitlement to service connection for a right knee disorder.
The Veteran has a right knee disorder, and VA has service connected the Veteran's low back disorder.  This satisfies the first and second prongs of a secondary service connection claim.
The appeal turns on the third prong of a secondary service connection claim – medical nexus.  The VA compensation examiner in June 2015 denied a direct nexus for a right knee disorder, but she did not consider a secondary nexus. The VA primary care physician cited above stated that the Veteran was "evaluated by ortho, estimated that knee pain may be secondary to back pain."  The undersigned, based on this record as well as a holistic review of the Veteran's extensive VA treatment records, concludes that it is at least as likely as not that the Veteran's low back disorder – and the pain caused by it – caused the Veteran's knee disorder.  Accordingly, the third prong of a secondary service connection claim is satisfied.
Based on the foregoing, the Veteran has met all three prongs of a secondary service connection claim.  The Board will grant the appeal.
Issue 4: Entitlement to service connection for chest pains.
VA examined the Veteran for compensation purposes in April 2017.  In section 16 of the examination report, the examiner noted "the veteran reports that he has never been diagnosed with a heart condition.  He states that he was evaluated in Germany for chest pain.  He states that he had a stress test done which was negative and was told that he did not have a heart condition."
The VA examiner did not diagnose the Veteran with a cardiac condition.  Moreover, there is no medical evidence of a cardiac condition, which the above statement confirms.  Thus, the Veteran fails the first prong of a service connection claim – current disability.  The Board therefore denies the appeal. 
Issue 5: Entitlement to service connection for hypertension.
No medical professional has diagnosed the Veteran with hypertension, nor has the Veteran identified evidence of it despite extensive VA treatment records in his claims file.
VA has not examined the Veteran for this issue.  VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision.  McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i).  Here, the undersigned finds examination is not necessary because the Veteran has failed the first and second prongs of McClendon.  
The Veteran fails the first prong of a service connection claim – current disability.  The Board therefore denies the appeal. 
Issue 6: Entitlement to service connection for a right shoulder disorder.
No medical professional has diagnosed the Veteran with a right shoulder disorder, nor has the Veteran identified evidence of it despite extensive VA treatment records in his claims file.
VA has not examined the Veteran for this issue.  VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision.  McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i). Here, the undersigned finds examination is not necessary because the Veteran has failed the first and second prongs of McClendon.  
The Veteran fails the first prong of a service connection claim – current disability.  The Board therefore denies the appeal. 
Issue 7: Entitlement to service connection for a right wrist disorder.
VA examined the Veteran for compensation purposes in April 2017.  The examiner did not find a nexus between the Veteran's disorder and his claimed in-service injury because there was no evidence of an in-service injury.  The undersigned has reviewed the service treatment records and has similarly found no recorded injury.  Although the Veteran claims this injury was documented, his contention is unsupported.  
No other medical records discuss a possible nexus.  Thus, the Veteran fails the second and third prongs of a service connection claim – in-service injury and nexus.  The Board therefore denies the appeal. 
Increased Rating
Increased Ratings
Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7. 
Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.
Issue 8: Entitlement to a compensable evaluation for tension headaches from March 13, 2017 to February 4, 2018.    
Issue 9: Entitlement to an evaluation for tension headaches greater than 50 percent from February 5, 2018.    
Tension Headaches
Headaches are evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100.  Under Diagnostic Code 8100, a 10 percent disability evaluation is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months.  A 30 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks occurring an average of once a month over the last several months.  A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.
In determining whether the Veteran experiences the type and frequency of prostrating attacks of migraine headaches necessary for a higher rating under Diagnostic Code 8100, the Board observes that the rating criteria do not define “prostrating,” nor has the U.S. Court of Appeals for Veterans Claims.  See Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.)  By way of reference, the Board notes that according to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.”  A similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” 
The rating criteria also do not define “severe economic inadaptability.”  However, nothing in Diagnostic Code 8100 requires the claimant to be completely unable to work in order to qualify for a 50 percent rating.  See Pierce v. Principi, 18 Vet. App. 440 (2004).
VA examined the Veteran twice during the pendency of the appeal for his headaches – in April 2017 and February 2018.  The severity of the symptoms among these examinations vary, but each examiner stated the Veteran reported having headaches at least twice weekly.  In April 2017, the examiner reported the Veteran had pulsing or throbbing head pain that affected both sides of his head and that his primary care physician prescribed Tramadol to take three times daily as needed.  The February 2018, but not the April 2017, examiner found the Veteran had prostrating attacks.  The Veteran is competent to report the frequency and effect of his migraine headache symptoms, and the Board finds they should be classified as prostrating, particularly based on the Veteran’s statement in August 2017.  See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  The reports of the frequency and severity of incapacitating headaches varies, but it averages more than once per month since March 13, 2017.  
The appeal therefore turns on whether these headaches produce severe economic inadaptability.  As with the severity of the symptoms, the VA examiners differ on whether and to what extent the headaches impact the Veteran’s ability to work.  As noted above, severe economic inadaptability is not specifically defined.  Here, however, the evidence suggests the Veteran’s symptoms are capable of affecting his employment or job performance and that he potentially would lose significant time from work because of his headaches.  The Board could order further inquiry into the Veteran’s employment history, but it finds that it will not materially alter its determination.  As such, the Board concludes, resolving doubt in the Veteran’s favor, that the Veteran’s headaches produce severe economic inadaptability since March 13, 2017.
In making the above decisions, the undersigned finds the Veteran merits the maximum schedular evaluation – 50 percent – for his tension headaches from March 13, 2017.  However, the Veteran does not contend, nor does the evidence show, that he merits an extraschedular rating from this date.  Therefore, an evaluation greater than 50 percent is denied.  
Issue 10: Entitlement to a compensable evaluation for bilateral hearing loss.
The Veteran's bilateral hearing loss is currently assigned a noncompensable evaluation under Diagnostic Code 6100.  38 C.F.R. §§ 4.85, 4.86.

Impaired hearing will be considered a disability only after threshold requirements are met.  See 38 C.F.R. § 3.385.  Once a disability is established, levels of hearing loss are determined by considering the puretone threshold average and speech discrimination percentage scores, resulting in a Roman numeral designation for hearing loss.  38 C.F.R. § 4.85(b), Table VI.  Disability ratings are assigned by combining the level of hearing loss in each ear. 38 C.F.R. § 4.85(e), Table VII.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered).

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination" is used to determine a Roman numeral designation (I through XI) for hearing impairment in each ear based on consideration of speech discrimination as well as puretone threshold averages, unless the examiner certifies that use of the speech discrimination test is not appropriate.  In that case, table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used. Table VII, "Percentage Evaluation for Hearing Impairment," is then used to determine the percentage evaluation by combining the Roman numeral of each ear.  38 C.F.R. §§ 3.383, 3.385, 4.85(b). 

The Veteran underwent a VA audiology examination in May 2017.  The results, with puretone thresholds in decibels, were as follows: 

			HERTZ		
	500	1000	2000	3000	4000
RIGHT	15	15	10	25	50
LEFT	10	5	5	25	50

For the frequencies 1000 – 4000 Hertz, the average puretone threshold was 21 decibels in the left ear and 25 decibels in the right ear.  Speech audiometry revealed speech recognition ability of 100 percent bilaterally. 

Applying the results of this examination to Table VI of the VA regulations yields a Roman numeral value of I bilaterally.  Applying these values to Table VII, the Veteran's bilateral hearing loss warrants a noncompensable evaluation.  38 C.F.R. § 4.85, 4.86.  

As the Veteran's hearing loss, when calculated using Table VII, does not warrant a compensable disability evaluation, his claim is denied.  The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56.  The Veteran's hearing loss has not met the requirements for a higher rating at any time since the effective date of his award, so the Board may not stage his rating.  Fenderson, 12 Vet. App. at 125-26.  Finally, the Veteran's August 2017 Notice of Disagreement on this issue relates to concerns of service connection of hearing loss, not an increased rating, even though VA granted service connection.  The undersigned can discern no argument for an increased rating.

Issue 11: Entitlement to an evaluation greater than 10 percent for a cervical disorder.

Issue 12: Entitlement to an evaluation greater than 20 percent for a low back disorder from February 6, 2015 to May 3, 2018.

Issue 13: Entitlement to an evaluation greater than 40 percent for a low back disorder from May 4, 2018.

Under the General Rating Formula for Diseases and Injuries of the Spine (Spine Formula), with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area of the spine affected by the residuals of injury or disease, a 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5237 (2016).  A 40 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  Id.  Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling.  Id. 

In addition to the Spine Formula, VA's regulations contain a Formula for Rating IVDS Based on Incapacitating Episodes.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2016).  Ratings under this diagnostic code are assigned according to the duration of "incapacitating episodes" throughout the year due to IVDS.  An "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  Id.  Pertinent to the current appeal, a 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  Id.  A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  Id.  Finally, a 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  Id. 

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination.

VA examined the Veteran three times during the pendency of the appeal for his cervical and low back disorders – June 2015, April 2017, and February 2018.

In the June 2015 examination, the Veteran was diagnosed with a low back disorder.  The examiner noted that the Veteran’s thoracolumbar range of motion was: flexion (70 degrees); extension (25 degrees); left lateral flexion (20 degrees); left lateral rotation (25 degrees); right lateral flexion (20 degrees), and right lateral rotation (25 degrees).  The total range of motion was 185 degrees.  The examiner found the Veteran had additional limitation in range of motion testing following repetitive-use testing in his forward flexion.  The examiner also found the Veteran had functional loss and/or functional impairment of the thoracolumbar spine that manifested itself in less movement than normal and pain on movement.  The examiner noted the Veteran experienced guarded motion.  The disability severely impacted the Veteran’s ability to stand for prolonged periods.  The VA examiner did not diagnose the Veteran with ankylosis or IVDS.

In the April 2017 examination, the Veteran was diagnosed with a cervical disorder.  The examiner noted that the Veteran’s cervical range of motion was: flexion (40 degrees); extension (35 degrees); left lateral flexion (40 degrees); left lateral rotation (65 degrees); right lateral flexion (40 degrees), and right lateral rotation (65 degrees).  The total range of motion was 285 degrees.  The examiner found the Veteran had no additional limitation in range of motion testing following repetitive-use testing.  The examiner also found the Veteran had no functional loss and/or functional impairment of the cervical spine.  The examiner did not diagnose the Veteran with ankylosis or IVDS.

In the February 2018 examination, the Veteran was diagnosed DDD of the lumbar sacral spine.  The examiner noted that the Veteran’s thoracolumbar range of motion was: flexion (35 degrees); extension (15 degrees); left lateral flexion (20 degrees); left lateral rotation (20 degrees); right lateral flexion (15 degrees), and right lateral rotation (15 degrees).  The total range of motion was 120 degrees.  The examiner found the Veteran had no additional limitation in range of motion testing following repetitive-use testing.  The examiner also found the Veteran had functional loss and/or functional impairment of the thoracolumbar spine that manifested itself in limited ability to bend, weakened movement, and pain on movement.  The examiner did not diagnose the Veteran with ankylosis.  The examiner offered conflicting information about IVDS, so it is unclear if the Veteran has it.

Analysis

For the cervical disorder, the Veteran's forward flexion at the 2017 VA examination measured 40 degrees and his range of motion of his cervical spine was 285 degrees.  This supports a 10 percent evaluation. 

For the low back disorder, the Veteran’s symptoms increased in severity during the pendency of the appeal.  The Veteran’s forward flexion measurements decreased from 70 to 35 degrees between the 2015 and 2018 VA examinations.  These measurements would support ratings of 10 and 20 percent, respectively.  However, VA, based upon 38 C.F.R. §§ 4.40 and 4.45, increased the ratings to 20 and 40 percent, respectively.

Given this, the Board finds no additional increases are warranted because of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under these regulations for the low back.  See also DeLuca v. Brown, 8 Vet. App. 202 (1995).  Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain.  38 C.F.R. § 4.40.  Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59. 

For the cervical disorder, while the Veteran reported experiencing pain with range of motion testing, even if flexion or extension were slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011).  Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss.  Id. at 43; see 38 C.F.R. § 4.40.  In this case, it does not.  While the Veteran at times reported pain during range of motion testing, the 2017 VA examiner specifically found no additional functional limitation after repetitive motion, in spite of the findings of pain.  That is, the pain did not functionally limit the Veteran, and therefore a higher rating is not warranted on this basis.
REASONS FOR REMAND
Remand is warranted for three reasons.
First, an October 22, 2016 VA treatment record suggests there may be a relationship between the Veteran's service-connected lumbar and cervical disorders and his claimed left shoulder disorder.  A VA compensation examination is needed.
Second, the April 2017 VA examination report found no evidence of an in-service right ankle injury.  The undersigned has found a June 2008 record belying that conclusion.  Remand is merited for a new examination.
Third, The U.S. Court of Appeals for the Federal Circuit held, in Johnson vs. Shulkin, Fed. Cir. 14-2778 (July 14, 2017), that the Court of Appeals for Veterans Claims Court erred when it "read Diagnostic Code 7806 as unambiguously elevating any form of corticosteroid treatment, including any degree of topical corticosteroid treatment, to the level of ‘systemic therapy.’”  The Federal Circuit noted that DC 7806 “draws a clear distinction between ‘systemic therapy’ and ‘topical therapy’ as the operative terms of the diagnostic code.”  The Federal Circuit went on to explain that “systemic therapy means ‘treatment pertaining to or affecting the body as a whole,’ whereas topical therapy means ‘treatment pertaining to a particular surface area, as a topical antiinfective applied to a certain area of the skin and affecting only the area to which it is applied.”  Although a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy.
Because of the reversal, remand is warranted to determine whether the Veteran’s use of topical corticosteroids was “constant or near constant systemic therapy,” which would more nearly approximate the maximum 60 percent disability rating.  The language in the Disability Benefits Questionnaire utilized does not ideally correspond to the information sought, and more of an explanation is requested.
The matter is REMANDED for the following action:
1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left shoulder disorder.  The examiner must opine on both direct and secondary theories of entitlement.  
For direct, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease.
For secondary, the examiner must opine whether it is at least as likely as not (1) proximately due to his service-connected lumbar OR cervical disabilities, OR (2) aggravated beyond its natural progression by his service-connected lumbar OR cervical disabilities.  
2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right ankle disorder.  The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including his June 2008 injury.
3. Ask the Veteran to submit any medical treatment records that address the question of whether his use of topical corticosteroids was “constant or near constant systemic therapy.”  Allow him a reasonable time to respond.
(Continued on the next page)
 
4. After the time period in Directive 3, send the Veteran’s file to a dermatologist.  Ask the dermatologist:
Is the Veteran’s use of topical corticosteroids “constant or near constant systemic therapy” as explained above?  Why or why not?
 
KELLI A. KORDICH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Michael Sopko 
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