Citation Nr: 1802758 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 15-42 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disorder as secondary to the service-connected left knee and lumbar spine disabilities. 2. Entitlement to an initial rating for lumbar spondylosis in excess of 10 percent prior to January 19, 2012, and in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from June 1991 to August 1993, from May to December 2003, from January 2004 to January 2005, from August to September 2005, and from May 2006 to September 2007. In April 2017, the Veteran testified before the undersigned at the RO. A transcript of the hearing has been reviewed and has been associated with the record. The issues on appeal were previously remanded by the Board in September 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of service connection for a right knee disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the initial rating period prior to January 19, 2012, the Veteran's lumbar spine disability was manifested by flare-ups resulting in decreased range of motion and pain, more nearly approximating flexion greater than 30 degrees, but not greater than 60 degrees. 2. For the entire initial rating period on appeal, the Veteran's lumbar spine disability has not manifested forward flexion of 30 degrees or less due to pain or favorable ankylosis of the entire thoracolumbar spine. 3. The medical evidence reflects findings of moderate right lower extremity radiculopathy for the entire initial rating period on appeal. CONCLUSIONS OF LAW 1. For the initial rating period prior to January 19, 2012, the criteria for a 20 percent rating, but no more, for lumbar spondylosis have been met. 38 U.S.C. §§ 1155, 5107, 7104 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2017). 2. For the entire rating period on appeal, the criteria for a rating in excess of 20 percent for lumbar spondylosis have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5107, 7104 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237 (2017). 3. For the entire rating period on appeal, the criteria for a separate 20 percent rating for radiculopathy of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.124a, DC 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, as in this case, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. 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 (1999). VA also must consider functional loss of a musculoskeletal disability. Functional loss may occur as a result of weakness, fatigability, incoordination or pain on motion. VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). In July 2011, the RO granted service connection for lumbar strain and assigned a 10 percent rating for the Veteran's low back disability effective October 22, 2010. In an April 2012 rating decision, the RO increased the rating for his low back disability to 20 percent, effective January 19, 2012. As such, the Board will consider whether higher or separate ratings are warranted for the periods prior to, and after, January 19, 2012. The Veteran's lumbar spine disability has been rated under DC 5237 for 5237 for lumbar spine strain. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating 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. The General Rating Formula provides a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, 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. A 20 percent rating is assigned for 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 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 rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. Note (2) provides 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. When rating degenerative arthritis of the spine (DC 5242), in addition to consideration of rating under the General Rating Formula, rating for degenerative arthritis under DC 5003 should also be considered. 38 C.F.R. § 4.71a. The evidence includes a VA spine examination dated in June 2011. During the evaluation, the Veteran reported severe, weekly flare-ups of the lumbar spine. During flare-ups, he reported numbness in the legs. Upon physical examination, his gait was normal. Muscle spasms, tenderness, or guarding was not severe enough to be responsible for an abnormal gait or abnormal spinal contour. Range of motion testing showed flexion limited to 70 degrees, extension to 10 degrees, left lateral flexion to 20 degrees, left lateral rotation to 20 degrees, right lateral flexion to 15 degrees, and right lateral rotation to 30 degrees. There was no additional limitations after repetitive use testing. He had no decreased pain or pinprick on the right lower extremity (S1 nerve distribution). During a March 2012 VA spine examination, the Veteran was diagnosed with lumbar spondylolisthesis. During the evaluation, he reported constant, moderate to severe back pain that was increased with lifting, prolonged sitting and standing. He indicated that he had lost 2-3 weeks over the last year due to back pain. Flare-ups were noted to occur about every 2 weeks and lasted 24 hours. Range of motion testing showed flexion limited to 70 degrees, extension to 10 degrees, left lateral flexion to 20 degrees, left lateral rotation to 20 degrees, right lateral flexion to 20 degrees, and right lateral rotation to 15 degrees. Upon repetitive use testing, forward flexion of the lumbar spine was limited to 60 degrees. The examiner also indicated that the Veteran's guarding and muscle spasms were present, but did not result in an abnormal gait or spinal contour. There was also no evidence of radicular pain or radiculopathy. The examiner also indicated that the Veteran did not have intervertebral disc syndrome (IVDS). The evidence also includes a January 2013 VA spine examination. During the evaluation, the Veteran claimed that his disability had increased in severity. He was experiencing low back pain and radiating pain to the right leg with numbness down the calf. Flare-ups were noted to occur with prolonged standing and walking. Range of motion testing, even after repetitive use testing, showed flexion limited to 60 degrees. The examiner also indicated that the Veteran's guarding and muscle spasms were present, but did not result in an abnormal gait or spinal contour. The Veteran was also diagnosed with radiculopathy of the right lower extremity (sciatic nerve) that was of "moderate" severity. The examiner indicated that the Veteran did not have IVDS. The Veteran was most recently afforded a VA spine examination in September 2017. During the evaluation, he reported that he could not run and had difficulty with prolonged walking. Range of motion testing, even after repetitive use testing, showed flexion limited to 90 degrees, even after repetitive use testing. The examiner indicated that the Veteran did not have radiculopathy. Upon review of all the evidence of record, both lay and medical, the evidence is in equipoise as to whether the Veteran's lumbar spine disability more nearly approximates a 20 percent rating prior to January 19, 2012. Although the June 2011 VA examination shows that he had forward flexion of the lumbar spine greater than 60 degrees (i.e., to 70 degrees), the examiner did not indicate where pain began. In this regard, the examiner noted that there was objective evidence of pain on active motion and following repetitive use testing, but no indication as to where pain began was noted. See VAOPGCPREC 9-98 (recognizing that motion effectively ends where pain begins). As such, and in consideration of the Veteran's reported severe, weekly flare-ups, the lumbar spine disability more nearly approximated flexion limited to 60 degrees during flare-ups prior to January 19, 2012. For these reasons, and resolving reasonable doubt in his favor, a 20 percent rating is warranted prior to January 19, 2012. Next, a rating in excess of 20 percent is not warranted for the entire rating period on appeal. Specifically, the evidence has not demonstrated forward flexion of the lumbar spine to 30 degrees or less. In the most recent VA examination, forward flexion was to 90 degrees with. Other examinations and VA treatment records do not reveal forward flexion of the lumbar spine to 30 degrees or less. Further, there are no objective findings of ankylosis of the thoracolumbar spine and the Veteran's reports of limitation of motion and function do not reflect reports of ankylosis of the thoracolumbar spine. Thus, the criteria for a rating in excess of 20 percent for the lumbar spine disability for the entire initial rating period have not been met. The Board has also considered the Veteran's reported impairment of function, such as limited ability to walk long distances, standing for prolonged periods of time, increased pain during flare-ups, and decreased range of motion due to pain. Even considering additional limitation of motion or function of the lumbar spine due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence still does not show that the lumbar spine disability more nearly approximates the criteria for a higher rating of 40 percent. Next, the Board has considered whether a higher rating is warranted pursuant to DC 5243 for IVDS. However, the Veteran has not been shown to have IVDS; as such, consideration under the IVDS Formula is not warranted. For these reasons, the Board finds that, for the initial rating period prior to January 19, 2012, a rating of 20 percent is warranted for the lumbar spine disability. Further, for the entire initial rating period on appeal, the evidence weighs against a finding of a rating in excess of 20 percent for the lumbar spine disability. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. Next, the Board has also considered whether a separate evaluation for neurological disability is warranted. As instructed by Note (1) to the General Rating Formula, associated objective neurological abnormalities should be rated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The Veteran has already been awarded a 10 percent rating for right lower extremity radiculopathy beginning October 4, 2012. Upon review of all the evidence of record, the Veteran has had radiculopathy of the right lower extremity throughout the entire rating period on appeal. Further, the radiculopathy is of moderate severity and is most properly rated under the provisions of 38 C.F.R. § 4.124a, DC 8520 for impairment of the sciatic nerve. Under DC 8520, a 10 percent rating is for mild incomplete paralysis; a 20 percent rating is for moderate incomplete paralysis; a 40 percent rating is for moderately severe incomplete paralysis; a 60 percent rating is for severe incomplete paralysis with marked muscular atrophy; and a 80 percent rating is for complete paralysis where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. The evidence includes a June 2011 VA chiropractic note, where the Veteran was seen for right sided lumbopelvic pain and numbness extending to the right posterior leg. The assessment noted that the Veteran had signs and symptoms of S1 radiculitis due to potential extrusion of nucleur macromolecules in to the pain sensitive epidural space. Further, during the June 2011 VA spine examination, the Veteran reported numbness in the legs. The examiner also indicated that the Veteran had decreased pain or pinprick on the right lower extremity (S1 nerve distribution). Moreover, an August 2012 MRI of the lumbar spine showed that he had L5 nerve root compression. In a December 2012 VA neurosurgery outpatient note, the Veteran complained of radicular symptoms for "a few years." The January 2013 VA examiner indicated that the date of diagnosis of the Veteran's right L5 lumbar radiculopathy was in 2011. For these reasons, and resolving reasonable doubt in the Veteran's favor, the he has had symptoms and/or diagnoses of right lower extremity radiculopathy throughout the entire initial rating period on appeal. As to the severity of the Veteran's radiculopathy, the only examination that specifically addressed this issue was the January 2013 VA examination report. In this regard, the examiner indicated that the Veteran's sciatic nerve was involved and resulted in "moderate" constant pain in the right lower extremity, "moderate" intermittent pain in the right lower extremity, "moderate" paresthesia in the right lower extremity, and "moderate" numbness in the right lower extremity. As noted above, a 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve under DC 8520. Therefore, a 20 percent rating is assigned for the Veteran's right lower extremity radiculopathy for the entire initial rating period on appeal. Further, a claim for a total rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes, however, that the Veteran indicated that he was currently employed full-time. As such, the issue of TDIU is not raised in this case. Finally, the Board notes that 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, 28 Vet. App. 366, 69-70 (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). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). ORDER For the initial rating period prior to January 19, 2012, a 20 percent rating, but no more, for lumbar spondylosis is granted. For the rating period beginning January 19, 2012, a rating in excess of 20 percent for lumbar spondylosis is denied. For the initial rating period on appeal, a separate 20 percent rating for radiculopathy of the right lower extremity is granted. REMAND Pursuant to the Board's September 2017 remand, the claim for service connection for a right knee disorder was remanded in order to obtain a VA examination and medical opinion. An examination was conducted in September 2017; however, the examiner indicated that the Veteran did not have a current right knee disability as symptoms were noted to be subjective only. The examiner further indicated that there were no objective signs of an abnormality and that his MRI of the knees were normal for "both knees." It was further indicated that there was evidence of symptom exaggeration and manufacture. The Board finds that further examination is needed. First, although the examiner indicated that MRIs of the knees were normal for "both knee," the evidence shows that the Veteran has been diagnosed with degenerative arthritis of the left knee, which (although not relevant to the right knee), disputes the examiner's conclusion that both knees were normal. Specifically, a January 2013 VA examination showed that imaging studies of the left knee showed degenerative arthritis. Moreover, VA treatment records dated in February 2013 indicate that the Veteran had "chronic knee pain due to OA." There was also an indication of "bilateral OA knees/braves and exercises." Additionally, a March 2012 radiology report was conducted due to bilateral knee pain. Standing PA and lateral views of the right knee showed "Minimal narrowing of the medial tibiofemoral compartment." As such, it appears that VA treatment records do indicate some abnormality (although slight) in the Veteran's right knee. Further, VA treatment records have diagnosed the Veteran with osteoarthritis of the right knee. Accordingly, on remand, a new examination is required to clarify the Veteran's right knee disability, if any, and to specifically address the findings in the March 2012 and February 2013 VA treatment records. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any outstanding VA treatment records and associate them with the electronic claims file. 2. Schedule the Veteran for an examination to assist in determining the etiology of his right knee disorder. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. (a) List all current diagnoses pertaining to the Veteran's right knee. (NOTE: The examiner is specially asked to discuss the February 2013 VA treatment record showing that the Veteran had "chronic knee pain due to OA." There was also an indication of "bilateral OA knees/braves and exercises." A March 2012 radiology report was conducted due to bilateral knee pain. Standing PA and lateral views of the right knee showed "Minimal narrowing of the medial tibiofemoral compartment bilaterally."). (b) For each diagnosis relating to the right knee, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed right knee disorder was either caused or aggravated (i.e., worsened beyond the natural progress) by a service-connected disability, to include the lumbar spine disability and/or left knee disability(ies). (c) If aggravation of the right knee by the lumbar spine and/or left knee disability(ies) is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. A comprehensive rationale must be furnished for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completing the actions detailed above, readjudicate the claim remaining on appeal. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After he and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs