Citation Nr: 18160490
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 14-43 499
DATE:	December 27, 2018
ORDER
A rating in excess of 10 percent for the low back disorder is denied.
Service connection for arthritis, to include as secondary to the service-connected low back disability, is denied.
Service connection for neuropathy of the right lower extremity, to include as secondary to the service-connected low back disability, is denied.
Service connection for neuropathy of the left lower extremity, to include secondary to the service-connected low back disability, is denied.
 
FINDINGS OF FACT
1. The Veteran’s low back disorder has not approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, even with consideration of functional impairment, including pain, difficulty with prolonged standing, twisting and turning.
2. The Veteran does not have a current diagnosis of arthritis causing pain, separate and distinct from the low back disability.
3. The Veteran does not have bilateral lower extremity radiculopathy; and his diagnosed lower extremity neuropathy is not related to the service-connected low back disability.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 10 percent for the low back disorder have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.55, 4.59, 4.71a Diagnostic Code (DC) 5237.
2. The criteria for service connection for arthritis have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.
3. The criteria for service connection for neuropathy of the right lower extremity have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.
4. The criteria for service connection for neuropathy of the left lower extremity have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 1973 to August 1979.
The case is on appeal from an August 2014 rating decision.
In the November 2014 substantive appeal, the Veteran requested a Travel Board hearing.  Thereafter, the Veteran submitted a December 2016 substantive appeal in which he indicated he did not want a Board hearing.  Further, a November 2018 correspondence from the Veteran’s representative indicated he did not wish to present oral testimony at a Board hearing, but instead requested that the Board render a decision with the evidence of record.  Accordingly, the Board considers the Veteran’s request for a hearing to be withdrawn.  See 38 C.F.R. § 20.704(e).
Additional evidence was received subsequent to the December 2016 supplemental statement of the case (SSOC), including VA treatment records and a lay statement.  However, the Board finds that the additional evidence is cumulative of that already of record.  Thus, a remand for another SSOC is not necessary for these four claims.  See 38 C.F.R. § 20.1304(c).
The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).
Increased Rating
Legal Criteria
The General Rating Formula for evaluating the spine provides for a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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.  A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, DC 5237.
Following the rating criteria, Note 1 states: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC.
Under the Formula for Rating intervertebral disc syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, DC 5243.
Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59.  Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).
Analysis
The Veteran seeks a rating in excess of 10 percent for his low back disability.  Following the Veteran’s September 2013 claim for an increased rating, the Veteran was afforded an August 2014 VA examination in which he reported his back bothers him while sleeping and causes upper and lower back pain which is worse in the morning.  Range of motion testing revealed forward flexion to 80 degrees with no reduction in motion after repetition.  The examiner noted the Veteran has functional loss, including painful motion, less movement than normal and interference with sitting, standing and/or weight-bearing.  He indicated the Veteran has localized tenderness or pain in the paraspinal muscles of the thoracic and lumbar spine.  The examiner found there was decreased sensory to the Veteran’s bilateral feet and toes, however, the examination did not reveal radiculopathy.  The examiner further indicated his low back disability causes no functional impact.
The Veteran was afforded a December 2016 VA examination in which he reported his back pain has worsened and he continues to have difficulty sleeping, as well as standing for prolonged periods.  He stated his back pain limits his ability to perform daily activities, and twisting and turning increases the pain.  He reported no flare-ups of the low back.  Range of motion testing revealed forward flexion to 80 degrees with painful motion noted and no evidence of pain with weight bearing.  Further, repetition did not result in additional loss of motion.  The examiner noted sensory impairment to the feet and toes; however, no radiculopathy was indicated.  She found no documented arthritis and no functional impact.  Further, the examiner indicated testing of the spine for pain on passive range of motion and in a non-weight bearing setting could not be performed.
The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s low back disability.  The most probative evidence of record, including the two VA examinations opinions, confirms range of motion testing revealed forward flexion to 80 degrees and there is no objective evidence to suggest forward flexion limited to 60 degrees or less, even in consideration of functional impairment.  Thus, the current 10 percent rating for the low back disability is appropriate under DC 5237.
The Board notes that the VA examinations, especially the most recent December 2016 examination, are adequate to rate the disability.  During the examination, the Veteran did not report flare-ups of his low back disorder and repetition did not reduce his limitation of motion.  The December 2016 VA examiner also found no evidence of pain with weight-bearing.  The Board determines the VA examination is adequate in describing all findings from the last sentence of 38 C.F.R. § 4.59 and to address all functional limitations.  See Correia v. McDonald, 28 Vet. App. 158, 168 (2016); see also Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017).  Based on the findings in the December 2016 VA examination, no further development is required and the examination report is adequate for adjudication of the claim.
The Board acknowledges the Veteran’s low back symptoms, including pain which causes difficulty sleeping, standing for prolonged periods and limits certain activities.  However, the Veteran’s low back symptoms do not cause any additional functional loss that are not compensated by the 10 percent rating.  See Lyles v. Shulkin, 29 Vet. App. 107, 118-19 (2017).  To the contrary, the current 10 percent rating fully contemplates all functional loss due to his pain and limitation of motion.  38 C.F.R. §§ 4.40, 4.45, and 4.59.
Overall, the Board determines there is no indication in the medical evidence of record that the Veteran’s forward flexion is limited to 60 degrees or less or that he experiences any muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, as is required for a 20 percent rating.  See 38 C.F.R. § 4.71a, DC 5237.  The Veteran has not submitted any evidence demonstrating his entitlement to a rating greater than 10 percent for his service-connected low back disability at any time during the appeal period.  Thus, the Board finds that the criteria for a disability rating greater than 10 percent for the low back disability have not been met.
Service Connection
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement.”  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).
Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury.  See 38 C.F.R. § 3.310.
1. Service connection for arthritis, to include as secondary to service-connected low back disability,
The Veteran contends that he has arthritis related to his service-connected low back disability.  He asserted in the September 2013 claim that he has arthritis, including “pain in his spine.”
During the August 2014 VA examination, the examiner indicated there is no diagnosis of inflammatory, autoimmune, crystalline or infectious arthritis or dysbaric osteonecrosis (Caisson disease).  The examiner noted he has also not been diagnosed with rheumatoid arthritis.  He stated after careful review of the records, an interview and examination of the Veteran and search of the relevant medical literature, non-degenerative arthritis of the spine has not been established.
The Veteran submitted a September 2014 statement in which he indicated when he was diagnosed with his lumbar spine disorder, he was informed his condition would worsen due to arthritis, which has been observed.  The Veteran was afforded a December 2016 VA examination in which the examiner indicated there was no diagnosis of arthritis and no arthritis has been documented in the record.
The Board determines that service connection for arthritis, to include as related to the Veteran’s low back disability, is not warranted.  The Board finds a diagnosis of arthritis has not been established.  Further, the Veteran’s service-connected lumbar spine disability has been rated under DC 5237 and a separate rating for the same painful limitation of motion or limitation of motion due to arthritis under DC 5003 is prohibited.  Such constitutes pyramiding and is prohibited under the General Rating Formula, as separate ratings may not be provided for limitation of motion and the same or similar impairments that limit the same functions of the back.  38 C.F.R. § 4.14.
Additionally, in a recent case, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that pain can constitute a disability under 38 U.S.C. § 1110.  However, the Federal Circuit did not hold that the Veteran could demonstrate service connection simply by asserting subjective pain, but would have to show it amounted to a functional impairment of earning capacity.  Id. at 28.  The Board finds that the decision in Saunders can be distinguished from the facts of this case.  Here, the evidence shows that the Veteran suffers from back pain, although such is not diagnosed as a separate and distinct lumbar spine disability, and has instead been established as a symptom of his service-connected low back disability.
In sum, the Board concludes no underlying arthritis disability has been clinically diagnosed during the appeal period or proximate thereto.  McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  Further, while the Veteran is certainly competent to report his low back problems, he has not demonstrated that he has the requisite specialized knowledge or training to establish a diagnosis of arthritis or to attribute his back symptomatology to a separate disability from his service-connected low back disorder.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Veteran’s assertions of arthritis have less probative value than the medical opinions of record.  In contrast, the VA examination reports from August 2014 and December 2016 established the Veteran does not have diagnosed arthritis.
In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for arthritis, to include as secondary to his service-connected low back disability.  Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
2. Service connection for neuropathy of the right and left lower extremities.
The Veteran contends that he suffers from lower extremity disorders related to his service-connected low back disability.  He indicated in the September 2013 claim that he has tingling and swelling in his feet which are secondary to his spine condition.
During the August 2014 VA examination, the Veteran denied radiating symptoms.  Moreover, the examiner found no radicular pain or other radiculopathy symptoms.  He stated although radicular pain may result in tingling sensations in the lower legs and feet, radiculopathy is usually due to nerve impingement and there is nothing in the available imaging studies of the spine to suggest this (nerve impingement).  He noted the Veteran is diabetic and this is more likely the etiology of the tingling sensation and swelling he experiences in the lower legs and feet.  The examiner did diagnose the Veteran with bilateral ulnar neuropathy and diabetic neuropathy; however, he linked the neuropathy to the Veteran’s diabetes.
Thereafter, the Veteran submitted a September 2014 statement in which he continues to assert that his lower extremity numbness and tingling is related to his low back disability.  During the December 2016 VA examination, the Veteran reported that he has neuropathy in his feet from diabetes and it may be from his back disorder.  The examiner found no radicular pain and no other signs and symptoms due to radiculopathy.  She indicated the Veteran has neuropathy from his diabetes.  She stated the decreased sensation in the Veteran’s ankles and feet is consistent with diabetic peripheral neuropathy and is a separate and distinct condition, and not a progression of the service-connected lumbar spine disability.
Based on review of the evidence, the Board finds the preponderance of the evidence is against the Veteran’s claim of service connection for bilateral lower extremity disorders, to include as related to the service-connected low back disability.  The Board determines the Veteran does not have lower extremity radiculopathy and further, his lower extremity neuropathy is related to his nonservice-connected diabetes.
The Board finds the most persuasive and probative evidence of record are the two VA examination opinions.  Both examiners determined the Veteran does not have diagnosed lower extremity radiculopathy.  Additionally, the examiners determined there were symptoms consistent with lower extremity neuropathy, but that such symptoms were linked diabetes and not the Veteran’s low back disability.  As such, the Board finds the August 2014 and December 2016 VA examiners provided clear and unequivocal opinions, based on a thorough examination and review of the record.  The examiners provided complete rationales for their conclusions, relying on and citing to the records reviewed.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).  The Board notes there are no medical opinions of record establishing a diagnosis of lower extremity radiculopathy or that the diagnosed lower extremity neuropathy is related to the back disorder.
The Board acknowledges the Veteran’s statements and belief that his lower extremity symptoms, including numbness and tingling, are related to his service-connected back disability.  However, the Veteran does not have the requisite medical expertise to be deemed competent to diagnose his lower extremity disorder, as such diagnoses are generally the province of a medical professional.  Jandreau at 1372.  While the Board is sympathetic to the Veteran’s reported symptoms, it finds the lay contentions of record are afforded less probative weight than the August 2014 and December 2016 VA examiners’ opinions of record.
In sum, there is no current lower extremity radiculopathy and no link between the Veteran’s lower extremity neuropathy and service-connected low back disability.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and service connection for bilateral lower extremity neuropathy is not warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102
 
TRACIE N. WESNER
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Isaacs, Associate Counsel 

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