Citation Nr: 1751203	
Decision Date: 11/08/17    Archive Date: 11/17/17

DOCKET NO.  10-18 499	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an increased rating for thoracolumbar degenerative changes (low back disability), currently rated as 40 percent disabling. 

2.  Entitlement to an increased rating for a right knee disorder, currently rated as 10 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran served on active duty from October 1966 to August 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2009 and December 2012 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

In September 2010 the Veteran testified at a Decision Review Officer (DRO) hearing at the RO.  In October 2015, the Veteran testified at another hearing before the undersigned at the RO.  Transcripts of both hearings have been associated with the claims file.  In March 2016 the Board, among other things, remanded the above issues for additional development.  While the appeal was in remand status, the RO in a March 2017 rating decision granted the Veteran's low back disability a 40 percent rating effective the date of his claim. 

The claim for an increased rating for the right knee disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The preponderance of the evidence of record shows that the Veteran's low back disability is not manifested by at least unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least six weeks during the past twelve months during the pendency of the appeal.

CONCLUSION OF LAW

The criteria for a rating in excess of 40 percent for a low back disability have not been met at all times during the pendency of the appeal.  38 U.S.C.A. §§ 1155, 5100, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that her low back disability meets the criteria for a higher rating at all times during the pendency of the appeal.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

The Claim

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016).  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2016).  When rating the Veteran's service-connected disability, the entire medical history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Separate compensable 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.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  Regulations require that where there is a question as to which of two evaluations is to 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.  .

The Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998).  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran's low back disability is rated as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5243.  Therefore, the Veteran is entitled to an increased, 60 percent rating, for his low back disability if it is manifested by symptoms compatible with intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past twelve months under Diagnostic Code 5243.  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.

The Veteran reports having frequent problems with his low back.  Moreover, the Veteran told the July 2009 VA examiner that sometimes his adverse symptomatology is so bad that he seeks bedrest.  However, the clinical records do not show incapacitating episodes having a total duration of at least six weeks over any 12 month period during the pendency of the appeal.  In fact, the September 2016 VA examiner reported that his low back disability did not required any physician bedrest in the last 12-months and these medical opinions are not contradicted by any other medical evidence of record.  See Colvin.  

Given the Veteran's treatment records as well as the opinion by the September 2016 VA examiner the Board finds that the most probative evidence of record are the treatment records and VA examination report that shows his low back disability does not cause at least six week of physician ordered bed rest in any 12 month period during the pendency of the appeal.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases).  Therefore, the Board finds that a rating in excess of 40 percent for the Veteran's low back disability must be denied under Diagnostic Code 5243 at all times during the pendency of the appeal.  38 C.F.R. § 4.71a; Hart.

The Veteran is also entitled to a higher rating for his low back disability if it is manifested by unfavorable ankylosis of the entire thoracolumbar spine (50 percent) or unfavorable ankylosis of the entire spine (100 percent).  38 C.F.R. § 4.71a. 

However, the clinical records do not show a diagnosis of spinal ankylosis.  In fact, the September 2016 VA examiner opined that he did not have ankylosis and these medical opinions are not contradicted by any other medical evidence of record.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).  Moreover, as a lay person the Board does not find that the Veteran has the required medical training to diagnose ankylosis.  See Davidson.  Furthermore, in the absence of ankylosis the Board may not rate his service-connected disability as ankylosis.  Johnston v. Brown, 10 Vet. App. 80 (1997).  Therefore, the Board finds that the most probative evidence of record shows that the Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine.  See Spencer v. West, 13 Vet. App. 376, 382 (2000); see also Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (the provisions of 38 C.F.R. §§ 4.40 and 4.45, which relate to limitation of motion due to pain, are thus not applicable).  The Board thus finds that a rating in excess of 40 percent is not warranted for the Veteran's service-connected low back disability due to unfavorable ankylosis of the entire thoracolumbar spine at all times during the pendency of the appeal.  38 C.F.R. § 4.71a; Hart.

ORDER

A rating in excess of 40 percent for a low back disability is denied at all times during the pendency of the appeal.


REMAND

As to the claim for an increased rating for the right knee disorder, since the March 2016 remand the United States Court of Appeals for Veterans Claims (Court) held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  However, this information is not found in the reports from his VA examinations.  Therefore, the Board finds that this issue must also be remanded to provide the Veteran with a new VA examination to obtain this needed medical evidence.  See 38 U.S.C.A. § 5103A(d) (West 2014).   

In adjudicating this claim, the AOJ should be mindful of the Veteran's pain as well as his potentially being entitled to separate ratings subluxation, lost flexion, and lost extension.  See Esteban v. Brown, 6 Vet. App. 259, 261 (1994); DeLuca v. Brown, 8 Vet. App. 202 (1995); Sharp v. Shulkin, 29 Vet. App. 26 (2017); VAOPGCPREC 23-97 (July 1, 1997); 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998); VAOPGCPREC 09-04 (September 17, 2004); 69 Fed. Reg. 59990 (2004).  When readjudicating the claim, the AOJ must also be mindful of 38 C.F.R. § 4.59 and the Court's holding in Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 is not limited to arthritis).  

While the appeal is in remand status, the AOJ should obtain and associate with the claims file any outstanding treatment records as well as invite the Veteran to file with VA probative lay statements.  See 38 U.S.C.A. § 5103A(b) (West 2014).

Accordingly, this issue is REMANDED to the AOJ for the following actions:

1.  After obtaining authorizations from the Veteran, associate with the claims file any outstanding private treatment records.  

2.  Associate with the claims file all of the Veteran's post-June 2016 treatment records from the VA Central Texas Health Care System.

3.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of any current problems with his right knee.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

4.  Schedule the Veteran for an examination to determine the severity of his right knee disorder.  The claims folder must be made available to and reviewed by the examiner.  The examiner is to identify all right knee pathology found to be present.  

The examiner should thereafter provide VA with the following information in accordance with the Court's holding in Correia:

A. Range of Motion Studies:

(i) the examiner must test the range of motion (i.e., flexion and extension) of the right knee in active motion, passive motion, weight-bearing, and nonweight-bearing; 

(ii) the examiner should provide a retrospective opinion on the range of motion (flexion and extension) of the right knee in active motion, passive motion, weight-bearing since 2008; 

(iii) to the extent possible, the examiner must express any functional loss in terms of additional degrees of limited motion (flexion and extension) of the Veteran's right knee (i.e., the extent of the Veteran's pain-free motion), to specifically include if his pain was not ameliorated by his medication regimen.  See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria);

(iv) and in providing the requested opinions regarding the range of motion, the examiner must also comment on any reports of flare-ups to include describing, if possible, any additional degrees of limited motion during these flare-ups.

B. Other Findings:

(v)  The examiner should also report on the severity of any right knee recurrent subluxation.

If the examiner feels that any of the requested opinions 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).

A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered.  

6.  Then, after conducting any further development deemed warranted, adjudicate the claim.  Such adjudication must consider the Veteran's pain or other limitation of function and separate ratings for lost flexion and extension as well as for instability of the right knee.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, Burton; VAOPGCPREC 23-97; VAOPGCPREC 9-2004.  The adjudication should also consider whether staged ratings are needed.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  If any benefit sought on appeal remains denied, furnish the Veteran a supplemental statement of the case.  The Veteran should be given an appropriate opportunity for response before returning the appeal to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).





______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs