Citation Nr: 18160523
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 14-34 253A
DATE:	December 27, 2018
ORDER
Entitlement to service connection for erectile dysfunction is denied.
Entitlement to a rating in excess of 10 percent for degenerative arthritis of the thoracolumbar spine prior to March 1, 2017 is denied.
Entitlement to a 20 percent rating for degenerative arthritis of the thoracolumbar spine from March 1, 2017 to May 16, 2018 is granted subject to the laws and regulations governing the award of monetary benefits.
REMANDED
Entitlement to service connection for allergic rhinitis is remanded.
Entitlement to service connection for chronic bronchitis is remanded.
Entitlement to a rating in excess of 40 percent for degenerative arthritis of the thoracolumbar spine since May 17, 2018 is remanded.
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded.
FINDINGS OF FACT
1. Erectile dysfunction is not shown to be the result of any incident of the Veteran’s active military service and it is not caused or aggravated by a service-connected disorder.
2. Prior to March 1, 2017, degenerative arthritis of the thoracolumbar spine was not manifested by forward thoracolumbar flexion limited to 60 degrees or less, or by a combined range of motion of the thoracolumbar spine limited to 120 degrees or less, or by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.
3. From March 1, 2017 to May 16, 2018, degenerative arthritis of the thoracolumbar spine was manifested by forward thoracolumbar flexion to 60 degrees or less, but not by forward thoracolumbar flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.
CONCLUSIONS OF LAW
1. Erectile dysfunction was not incurred or aggravated inservice, and it is not caused or aggravated by a service-connected disorder. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310.
2. The criteria for entitlement to a rating in excess of 10 percent for degenerative arthritis of the thoracolumbar spine prior to March 1, 2017 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242.
3. The criteria for entitlement to a 20 percent rating, but no higher, for degenerative arthritis of the thoracolumbar spine from March 1, 2017 to May 16, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from January 1977 to January 1981.
Service connection for erectile dysfunction
The Veteran contends that his erectile dysfunction was incurred as a result of his active-duty service. Specifically, he argues that erectile dysfunction was caused by a substance abuse disorder which he believes to be service-related. 
Service connection is established on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).
Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a).
The question for the Board is whether the Veteran has a current disability that began during service, is at least as likely as not related to an in-service injury or disease, or was caused or aggravated by a service-connected disability.
The Board concludes that, while the Veteran has a current diagnosis of erectile dysfunction, the preponderance of the most probative evidence weighs against finding that erectile dysfunction was incurred or aggravated during service, that it is related to an in-service injury or disease, or that it was caused or aggravated by a service-connected disability.  38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303(a), (d), 3.310.
A review of the service treatment records reveals no complaints, findings, or diagnoses of erectile dysfunction. The Veteran was treated for urethritis in April 1978, and July and December 1980.
VA treatment records show the Veteran was not diagnosed with erectile dysfunction until March 2012, at which time he reported the condition had begun six months prior, decades after his separation from service. 
In May 2018 a VA examiner opined that the Veteran’s erectile dysfunction was not at least as likely as not related to service. The examiner noted that the Veteran had been treated for gonococcal urethritis in service, but observed that gonococcal urethritis does not cause impotence. The examiner also noted an instance of treatment for gonococcal orchitis, but opined that if this condition had been the cause of the Veteran’s erectile dysfunction, that erectile dysfunction would have manifested many years earlier than it did. The examiner further opined that the Veteran’s history of substance abuse was a more likely contributor to the claimed disorder.
The Veteran himself has primarily argued that his erectile dysfunction is related to his substance abuse disorders, which he in turn argues were incurred during his active-duty service. However, the Veteran is not service connected for a substance abuse disorder.  Indeed, the Board in an April 2018 decision denied such a claim, and that decision is final. 38 U.S.C. § 7104.  As the underlying disorder is not service-connected, the Veteran’s claim for secondary service connection on this basis is without legal merit and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
To the extent that the Veteran argues that his erectile dysfunction is directly related to his active-duty service, to include gonococcal urethritis or gonococcal orchitis, he is not competent to provide an opinion in this regard. The etiology of his erectile dysfunction is medically complex, requiring knowledge of the interaction of multiple organ systems in the body.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  Accordingly, the Board attributes greater probative value to the opinion of the May 2018 examiner. 
Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim. The claim is denied.
Rating in excess of 10 percent for degenerative arthritis of the thoracolumbar spine prior to May 17, 2018 
The Veteran contends that his degenerative arthritis of the thoracolumbar spine was more severely disabling than represented by the 10 percent rating assigned prior to May 17, 2018. The Veteran was granted entitlement to service connection for thoracolumbar degenerative arthritis in a September 2013 rating decision, and assigned a 10 percent disabling effective from May 23, 2012. The Veteran appealed.
Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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 military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.
Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1999).  Nevertheless, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods within the period on appeal.
Where there is a question as to which of the 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.
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.
The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned 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’s thoracolumbar degenerative joint disease is rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242.
The General Rating Formula provides a 10 percent rating where there is forward thoracolumbar flexion greater than 60 degrees but not greater than 85 degrees; or, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. Id.
A 20 percent rating is assigned when forward thoracolumbar flexion is 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, there is 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 40 percent rating is warranted when forward thoracolumbar flexion is 30 degrees or less; or there is favorable ankylosis of the entire thoracolumbar spine. Id.
These ratings apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.
VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. However, as previously noted, the general formula for disabilities of the spine expressly states that the criteria and ratings apply “with or without symptoms such as pain.” See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. In other words, the presence of pain is already taken into account in the formula. 68 Fed. Reg. 51454 -5 (Aug. 27, 2003) (“Pain is often the primary factor limiting motion, for example, and is almost always present when there is muscle spasm. Therefore, the evaluation criteria provided are meant to encompass and take into account the presence of pain, stiffness or aching, which are generally present when there is a disability of the spine.”)
After a complete review of the record, the Board finds that prior to May 1, 2017 degenerative arthritis of the thoracolumbar spine was not manifested by forward thoracolumbar flexion limited to 60 degrees or less, or by a combined range of motion of the thoracolumbar spine limited to 120 degrees or less, or by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 
In August 2013 a VA examiner noted forward flexion limited to 70 degrees, with pain at 65 degrees, extension to 20 degrees with pain at 15 degrees, right lateral flexion to 15 degrees with pain at 15 degrees, left lateral flexion to 15 degrees with pain at 15 degrees, right lateral rotation to 10 degrees with pain at 10 degrees, and left lateral rotation to 10 degrees with pain at 10 degrees. The combined range of motion was 140 degrees. Range of motion was increased after repetitive use, and no guarding or muscle spasm was reported. 
In November 2016 a VA examiner stated that the range of motion measurements of the spine were “all normal.” Again, no guarding or muscle spasm were reported.
This evidence demonstrates that, prior to March 1, 2017, forward flexion was in excess of 60 degrees, the combined range of thoracolumbar motion was in excess of 120 degrees, and there was no guarding or muscle spasm. Thus, the evidence preponderates against entitlement to a higher rating.
From March 1, 2017 to May 16, 2018, the Board finds that degenerative thoracolumbar arthritis was manifested by forward thoracolumbar flexion limited to 60 degrees or less, but not by forward thoracolumbar flexion limited to 30 degrees or less, or by favorable ankylosis of the entire thoracolumbar spine.
A March 1, 2017 VA treatment record reported that lumbar range of motion was limited to 60 degrees of flexion. 
Resolving reasonable doubt in the Veteran’s favor this evidence suggests that thoracolumbar forward flexion was limited to 60 degrees since March 1, 2017.  Such is supportive of a 20 percent rating. However, the evidence pertinent to this period preponderates against finding forward thoracolumbar flexion was limited to 30 degrees or less, or that there was favorable ankylosis of the entire thoracolumbar spine.
The Board acknowledges that under 38 C.F.R. § 4.59, examination of certain joints should include testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. Correia v. McDonald, 28 Vet. App. 158 (2016). However, as previously discussed, the pertinent ratings of the spine apply with or without symptoms such as pain. Thus, any deficiency of the spine examinations of record in this regard is harmless, as assessment of pain in accordance with 38 C.F.R. § 4.59 would not provide a basis for the assignment of any higher rating.
The Board acknowledges the Veteran’s reports of back pain as well as the report of the August 2013 examiner that the appellant experienced flare-ups of pain. However, again, the Board observes that the pertinent criteria and ratings apply “with or without symptoms such as pain.” See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Additionally, the record does not include evidence of any specific degree of additional limitation of motion due to pain or flare-ups.  Accordingly, the medical evidence pertinent to this period preponderates against finding that prior to March 1, 2017, the Veteran’s low back symptoms, to include on flare-up, more nearly approximated forward thoracolumbar flexion of 60 degrees or less, a combined range of motion of the thoracolumbar spine of 120 degrees or less, 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.  Further from March 1, 2017 to May 16, 2018 the evidence preponderates against finding such symptoms that equate to forward thoracolumbar flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.
In sum, the Board finds that the preponderance of the evidence is against finding that a rating higher than 10 percent for thoracolumbar degenerative joint disease is warranted prior to March 1, 2017, and the claim is denied. The evidence is at least in equipoise as to whether the criteria for a 20 percent rating from March 1, 2017 to May 16, 2018 were met.  The preponderance of the evidence is against finding that a rating in excess of 20 percent from March 1, 2017 to May 16, 2018 was warranted. 
REASONS FOR REMAND
Allergic rhinitis and chronic bronchitis 
In its April 2018 remand, the Board directed that the Veteran be provided new VA examinations to consider the nature and etiology of his allergic rhinitis and chronic bronchitis. With regard to the claim for allergic rhinitis, the examiner was to specifically discuss the service treatment records showing treatment for a head cold and viral syndrome, and the Veteran’s statements that he had been treated for allergies since service. With regard to the claim for chronic bronchitis, the examiner was to address the Veteran’s statements that he was treated for bronchitis since 1977, the December 1976 report of medical history noting a diagnosis of bronchitis when he was 18 years old, and the post-service treatment records indicating recurrent bronchitis. The examiner failed to specifically discuss this evidence. Thus, there was not substantial compliance with the Board’s previous remand directives, and another remand is required to correct these deficiencies.  Stegall v. West, 11 Vet. App. 268, 271 (1998).
Rating in excess of 40 percent for degenerative arthritis of the thoracolumbar spine since May 17, 2018 
In its April 2018 remand, the Board directed that the Veteran be provided a new VA examination to consider the nature and severity of his degenerative arthritis of the thoracolumbar spine, to specifically include consideration of both active and passive range of motion testing. There is no indication that the May 2018 examiner considered both active and passive range of motion. Where the examiner was asked to indicate whether pain was exhibited on passive range of motion, the examiner responded only by entering “[not applicable].” The examination report is thus ambiguous as to whether passive range of motion testing was conducted, as required by the April 2018 remand directives. Thus, there has not been substantial compliance with the Board’s previous remand directive, and another remand is required.  Id.
Individual unemployability 
The issue of entitlement to a total disability evaluation based on individual unemployability must be deferred pending the development requested herein. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on an appellant’s claim for the second issue).
Additionally, on remand the Veteran should be provided another opportunity to submit the requisite VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability.
Accordingly, the matters are REMANDED for the following action:
1. Send the Veteran a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and request that he complete and return the form.
2. Obtain the Veteran’s VA treatment records for the period from April 2018 to the present. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims.  The claimant must then be given an opportunity to respond.
3. Obtain a medical opinion from an appropriate medical professional addressing whether the Veteran’s allergic rhinitis is at least as likely as not incurred in or otherwise related to his active-duty service.  
The reviewer must explicitly discuss the April and November 1979 service treatment records showing treatment for a head cold, the October 1978 service treatment record showing treatment for a viral syndrome, and the Veteran’s May 2012 statement that he was treated for allergic rhinitis since 1979.
A complete, well-reasoned rationale must be provided for any opinion offered.  If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training.
4. Obtain a medical opinion from an appropriate medical professional addressing whether there is clear and unmistakable evidence that the Veteran’s chronic bronchitis preexisted service. If so, the reviewer must state whether chronic bronchitis was clearly and unmistakably not aggravated by active-duty service. If there is not clear and unmistakable evidence that chronic bronchitis preexisted active-duty service, the reviewer must opine whether bronchitis is at least as likely as not incurred in or otherwise related to his active-duty service.  
The reviewer must explicitly discuss the December 1976 report of medical history noting a diagnosis of bronchitis when the Veteran was 18 years old, the appellant’s May 2012 statement that he was treated for bronchitis since 1977, and the January 2013 VA treatment record indicating a history of recurrent bronchitis.
A complete, well-reasoned rationale must be provided for any opinion offered.  If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training.
5. Request that the examiner who conducted the May 2018 spine examination state whether passive range of motion was considered. If so, the examiner must state whether any additional limitation of motion was observed on passive motion. 
If, and only if, the May 2018 examiner is unavailable, or the May 2018 examination did not include consideration of passive range of motion, schedule the Veteran for an examination to determine the current severity of his degenerative arthritis of the thoracolumbar spine.  The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing.  The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If the Veteran reports flare-ups or the record reveals flare-ups of spine symptoms, the examiner must expressly address the severity, frequency and duration; name the precipitating and alleviating factors and estimate “per the veteran” the extent to which they affect functional impairment. If feasible, an estimate of any such additional functional impairment should be expressed in terms of degrees of range of motion. To the extent possible, the examiner should identify any symptoms and functional impairments due to degenerative arthritis of the thoracolumbar spine alone and discuss the effect of the disability on any occupational functioning and activities of daily living.  
A complete, well-reasoned rationale must be provided for any opinion offered.  If any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the 
 
examiner does not have the needed knowledge or training.

 
DEREK R. BROWN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Paul J. Bametzreider, Associate Counsel 

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