Citation Nr: 1756632 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 09-18 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for degenerative disc disease of the lumbosacral spine from February 11, 2011. 2. Entitlement to an initial rating in excess of 20 percent for patellofemoral syndrome of the left knee from May 26, 2011. 3. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depressive disorder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Baker, Associate Counsel INTRODUCTION The Veteran had military service from August 1989 to August 2006. His period of service from August 16, 1989 through April 12, 2000, has been determined to be honorable active service. His period of service from April 13, 2000 through August 16, 2006 has been determined to be dishonorable and a bar to VA benefits. These matters come before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision (Spine and Knee) by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina and a December 2015 rating decision (PTSD) of the RO in Muskogee, Oklahoma. Jurisdiction rests with the RO in Winston-Salem, North Carolina. The Veteran's increased rating claims for patellofemoral syndrome of the left knee and degenerative disc disease of the lumbosacral spine were initially before the Board in September 2011, when in pertinent part, they were remanded for additional development. Thereafter, a November 2014 Board decision denied an initial rating in excess of 10 percent for degenerative disc disease of the lumbosacral spine, prior to February 11, 2011, granted an initial rating of 20 percent but not higher for degenerative disc disease of the lumbosacral spine from February 11, 2011, denied a separate initial rating in excess of 20 percent for left lower extremity radiculopathy, denied an initial rating in excess of 10 percent for patellofemoral syndrome of the left knee, prior to May 26, 2011, and granted an initial rating of 20 percent but not higher for patellofemoral syndrome of the left knee from May 26, 2011. In May 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The hearing transcript is associated with the record. The Veteran appealed the Board's November 2014 decision to the United States Court of Appeals for Veterans Claims (Court), which in August 2015, granted a Joint Motion for Partial Remand (JMPR) of the parties (VA Secretary and the Veteran), and vacated the Board's decision to the extent that it denied an initial rating in excess of 20 percent for degenerative disc disease of the lumbosacral spine from February 11, 2011 and denied an initial rating in excess of 20 percent for patellofemoral syndrome of the left knee from May 26, 2011, and remanded the case pursuant to 38 U.S.C. § 7252 (a) for re-adjudication consistent with the Motion. The remainder of the November 2014 Board decision remained undisturbed. These matters were again before the Board in December 2015 and January 2017, when they were again remanded for further evidentiary development. They now return for appellate review. As noted in prior Board decisions, the Veteran has not argued, and the record does not otherwise reflect, that the disabilities at issue have rendered him unemployable. Moreover, a review of the evidence indicates that the Veteran is employed. Specifically, a May 2016 private psychiatric assessment reported the Veteran had been employed in food services for the past two and a half years. Accordingly, the Board concludes that a claim for entitlement to a TDIU has not been raised at this time. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The most probative evidence of record shows that the Veteran's low back disability is manifested by pain, with forward flexion greater than 30 degrees without ankylosis, and IVDS without prescribed bedrest exceeding 2 weeks in a 12 month period. 2. The most probative evidence of record reflects that the Veteran's left knee disability is manifested by pain, productive of, at worst, flexion limited to 90 degrees and extension limited to 15 degrees for the period on appeal. CONCLUSIONS OF LAW 1. The criteria for a staged initial disability rating in excess of 20 percent from February 11, 2011, for service-connected lumbosacral degenerative disc disease, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5235-5243 (2016). 2. The criteria for a staged initial disability rating in excess of 20 percent for patellofemoral syndrome of the left knee from May 26, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria- Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.1 (2016). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2016); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2016). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2016). Consideration of the appropriateness of a staged rating, meaning assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others, is required for increased rating claims, irrespective of whether it is an initial rating at issue or instead an established rating. See Hart v. Mansfield, 21 Vet. App. 505 (2008). As such, the Board has considered whether different ratings for different periods of time, based on the facts found, are warranted throughout the appeal. The evaluation of the same disability or symptoms under different DCs, known as "pyramiding", must be avoided. See 38 C.F.R. § 4.14 (2016). However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptoms for one condition are not duplicative of or overlapping those of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The holding in DeLuca v. Brown, 8 Vet. App. 202 (1995) clarified that, when evaluating musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which there is functional loss due to pain, weakness, excess fatigability or incoordination, assuming these factors are not already contemplated by the relevant rating criteria. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath, 1 Vet. App. at 592. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). However, although pain may cause functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (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. ; see 38 C.F.R. § 4.40. Concerning the range of motion findings of the joints at issue, the Board notes that some VA examination reports do not include passive range of motion and do not specify range of motion with and without weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The fundamental issue for Correia is that VA examinations perform adequate joint testing for pain. Generally, active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions. There is no indication that range of motion testing was performed other than on weight bearing. Therefore, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. Under 38 U.S.C.A. §7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Spine The spine is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5235-5243. Intervertebral disc syndrome (IVDS) is rated under DC 5243 and is to be evaluated under the General Rating Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the General Rating Formula are made 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. DC 5242 for degenerative arthritis of the spine may also be rated under DC 5003. The General Rating Formula provides for a 20 percent disability rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but is not greater than 60 degrees; or when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, when muscle spasm or guarding is 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. 38 C.F.R. § 4.71a. The General Rating Formula provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Note (2) provides, in pertinent part, that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion is 240 degrees for the thoracolumbar spine. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. DC 5293 provides for a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Knee The Board notes that the record does not show ankylosis, recurrent subluxation or lateral instability, meniscal injury, or arthritis of the left knee. Under 38 C.F.R. § 4.71a , DC 5260, a 20 percent rating is warranted for flexion of the knee limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension of the knee limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Analysis The Veteran's left knee disability is currently rated at 20 percent under DC 5261, and the spine rated at 20 percent by analogy under DC 5242 for degenerative arthritis. The Veteran attended VA examinations to evaluate the severity of his knee and spine conditions in October 2011, March 2016, and April 2017. At those examinations, the Veteran's lumbar spine range of motion was at worst limited to 40 degrees of flexion, including consideration of limitations due to reported flare-ups and repetitive use. The Veteran's radiculopathy was described as mild on the right, and moderate on the left, for which the Veteran is service-connected. The Veteran is noted to have IVDS, and reports frequent flare ups, however, only one examiner indicated the need for doctor prescribed bed rest, at the duration of less than two weeks for a year period. The Veteran consistently reported difficulty standing and walking for long periods, difficulty squatting and bending, and pain. The VA examinations do not show flexion limited to less than 30 degrees or ankylosis of the spine. Also at those examinations, the Veteran's knee was at worst limited to 90 degrees of flexion when considering the impact of daily flare-ups and repetitive use, and extension limited at 15 degrees. The examinations do not show flexion limited to 15 degrees or extension limited to 20 degrees. The two most recent examinations show no limitation of extension. The Veteran reported difficulty standing and walking for prolonged periods, as well as pain, but no difficulty sitting. The Veteran reported using a cane and a brace. The Veteran also submitted a private examination from 5 days after the October 2011 VA examination. There, the Veteran's lumbar spine was limited to 20 degrees flexion with pain, left knee flexion to 40 degrees with pain, and left knee flexion to 20 degrees with pain. With regard to the knee, repetitive use testing was not possible due to pain. The Board affords greater probative value to the findings of the three VA examiners, as their findings are consistent with each other, especially the examination conducted only 5 days prior to the private examination showing more severe limitation. The VA examiners reviewed the record, and applied their medical expertise. Further, the VA examiners had the benefit of reviewing the complete record appurtenant to examination. The medical evidence of record is consistent with the limitations described by the VA examiners. The Board has considered any additional functional loss due to pain, weakness, excess fatigability or incoordination, as well as repetitive use and flare-ups. The Board finds that any additional limitation does not arise to reflect the severity of the next highest rating for the left knee or lumbar spine disabilities. DeLuca, 8 Vet. App. 202. With regard to the Veteran's contentions that his disabilities are more severe than the assigned ratings, the Board notes that while the Veteran is competent to report observable symptoms of his service-connected low back and left knee disabilities at issue, he has not been shown to possess the requisite expertise or training to assess the appropriate schedular disability rating to be assigned under an appropriate diagnostic code. As such, he is deemed to not be competent in that regard. Further, the Board affords more probative weight to the findings of the trained medical professionals who personally examined the Veteran and reviewed the record. Thus, the Board finds that the most probative evidence of record is against the assignment of a higher staged initial disability rating at any time during the period on appeal, and the benefit-of-the-doubt doctrine is not for application. The Veteran's claim for increased initial ratings is denied. 38 U.S.C.A. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to an initial rating in excess of 20 percent for degenerative disc disease of the lumbosacral spine from February 11, 2011, is denied. Entitlement to an initial rating in excess of 20 percent for patellofemoral syndrome of the left knee from May 26, 2011, is denied. REMAND The Veteran attended a VA examination to determine the nature and etiology of his claimed PTSD in October 2015. There, the VA examiner determined that the Veteran did not have PTSD. The examiner continued the Veteran's diagnosis of depressive disorder. The Board finds this examination inadequate. Even though a separate claim for entitlement to service connection for depressive disorder was not subject to a perfected appeal, the Board may broadly characterize the Veteran's claim for PTSD as a claim for an acquired psychiatric disorder, to include PTSD and depression. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the examiner should offer a nexus opinion with regard to any psychiatric diagnosis found. Further, following that examination, the Veteran submitted a May 2016 private evaluation by a medical professional that diagnosed the Veteran with PTSD, and offers a positive nexus opinion, linking his PTSD to service. The Board is unclear whether this diagnosis was made in compliance with DSM-IV or V standards, and as such, an addendum opinion that considers and reconciles this diagnosis with the previous examination is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following action: 1. Forward the record and a copy of this Remand to the examiner who conducted the October 2015 VA examination, or if that examiner is unavailable, to another suitably qualified VA clinician, for completion of an addendum opinion. If necessary for an adequate opinion, the examiner may obtain another examination of the Veteran. The examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disability, to include depressive disorder, diagnosed proximate to, or during, the appeal was incurred in, caused by, or aggravated by the Veteran's honorable military service, as outlined in the Introduction to this Remand. The examiner is asked to address the Veterans May 2016 diagnosis of PTSD, and determine whether it was made in accordance with the relevant DSM standards. A complete rationale should accompany any opinion provided and conclusion reached. 2. . After completion of the above, review the expanded record, including any evidence entered since the most recent supplemental statement of the case, and determine whether the benefit sought may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 of Veterans' Appeals 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs