Citation Nr: 1802918 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 11-24 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for service-connected unspecified neurocognitive disorder (previously characterized as a disability manifested by memory loss), to include an initial rating in excess of 10 percent prior to September 8, 2014, a rating in excess of 30 percent prior to August 3, 2017, and a rating in excess of 50 percent from August 3, 2017. 2. Entitlement to a rating in excess of 20 percent for service-connected lumbar spine strain. 3. Entitlement to an increased rating for service-connected degenerative disc disease, cervical spine C5-6, including a rating in excess of 20 percent prior to September 8, 2014 and a rating in excess of 30 percent thereafter. 4. Entitlement to a rating in excess of 20 percent for service-connected right shoulder bursitis. 5. Entitlement to a rating in excess of 10 percent for service-connected right knee strain. 6. Entitlement to separate ratings for neurologic impairments associated with the service-connected lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The appellant is Veteran who served on active duty from July 1981 to July 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in September 2009, January 2012, and October 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) above. In November 2016, the Veteran testified before the undersigned Veterans Law Judge via videoconference. A transcript of the hearing is associated with the record. In March 2017, the Board remanded this appeal for additional evidentiary development. The Board finds there has been substantial compliance with its March 2017 remand directives, as the Veteran was afforded the requested VA examinations and all identified and available treatment records have been associated with the record. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation of Stegall v. West, 11 Vet. App. 268 (1998) when the examiner made the ultimate determination required by the Board's remand.) For reasons explained below, the issues of entitlement to an increased rating for the service-connected unspecified neurocognitive disorder, as well as entitlement to separate ratings for neurologic impairments associated with service-connected lumbar spine disability, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the entire appeal period, the Veteran's lumbar spine strain has been manifested by forward flexion limited to no less than 40 degrees, including as a result of pain, after repetitive use testing, or during passive or weight-bearing range of motion testing. The evidence does not reflect any additional functional limitation due to pain or similar symptoms on repeated use or during flare-ups; nor does the evidence reflect that the lumbar spine disability has been manifested by ankylosis or intervertebral disc syndrome (IVDS) with incapacitating episodes as defined by the schedular criteria. 2. Prior to September 8, 2014, the Veteran's cervical spine disability was manifested by forward flexion limited to no less than 45 degrees, even with pain, after repetitive use testing, and during flare-ups. Beginning September 8, 2014, the Veteran's cervical spine forward flexion was limited to 15 degrees after repetitive use testing; however, the evidence dated prior to and after September 8, 2014 does not reflect that the cervical spine disability was manifested by unfavorable ankylosis of the cervical or entire spine or IVDS with incapacitating episodes as defined by the schedular criteria. 3. As the Veteran is right-handed, his service-connected right shoulder bursitis disability involves his major extremity. 4. For the entire appeal period, the Veteran's right shoulder bursitis has been manifested by forward flexion limited to no less than 80 degrees and abduction limited to no less than 60 degrees, including as a result of pain, after repetitive use testing, and during passive or weight-bearing range of motion testing. There is no evidence of ankylosis of the scapulohumeral articulation; nor is there evidence of impairment of the humerus, clavicle, or scapula. 5. For the entire appeal period, the Veteran's right knee strain has been manifested by pain, stiffness, and crepitus. He has consistently demonstrated normal extension to zero degrees but his flexion has been limited to no less than 90 degrees, including with pain, after repetitive use testing, or during passive or weight-bearing range of motion testing. The Veteran's symptoms result in limited walking, squatting, and use of stairs but additional functional limitation due to pain, weakness, or other factors is not shown to any significant degree. CONCLUSIONS OF LAW 1. The schedular criteria for a rating in excess of 20 percent for lumbar spine strain are not met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2017). 2. Prior to September 8, 2014, the schedular criteria for a rating in excess of 20 percent for degenerative disc disease of the cervical spine are not met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2017). 3. For the period after September 8, 2014, the schedular criteria for a rating in excess of 30 percent for degenerative disc disease of the cervical spine are not met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2017). 4. The schedular criteria for a disability rating in excess of 20 percent for right shoulder bursitis are not met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5201 (2017). 5. The schedular criteria for a disability rating in excess of 10 percent for right knee strain have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5262 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Lumbar Spine Disability The Veteran is seeking a rating higher than 20 percent for his service-connected lumbar spine disability, which is evaluated under DC 5237 and the General Rating Formula for Diseases and Injuries of the Spine. In order to warrant a higher schedular rating, the evidence must show the Veteran's lumbar spine is manifested by forward flexion limited to 30 degrees or less or favorable or unfavorable ankylosis of the entire thoracolumbar spine. The evidence of record shows the Veteran's lumbar spine disability has been manifested by constant pain, stiffness, fatigability, weakness, and guarding, with occasional flare-ups of symptomatology, which results in difficulty walking, lifting heavy objects, and decreased range of motion. Indeed, the evidence shows the Veteran has demonstrated limited range of motion in his lumbar spine throughout the appeal period; however, the Veteran's forward flexion has been limited to no less than 40 degrees, including as a result of pain, after repetitive use testing, or during passive or weight-bearing range of motion testing. See August 2017 VA examination report; see also VA examination reports dated November 2010, September 2011 and September 2014. The Board acknowledges that the Veteran has reported experiencing flare-ups of pain and other symptoms in his lumbar spine; however, there is no competent lay or medical evidence showing his increased symptomatology would likely result in flexion or other movement of the spine limited to 30 degrees of less to warrant a higher disability. Therefore, a higher rating is not warranted based upon limitation of motion under DC 5237 and the General Rating Formula for Diseases and Injuries of the Spine. During the November 2016 Board hearing, the Veteran testified that, for approximately two months a year, he experiences flare-ups of pain or incapacitating episodes during which he stays in bed to rest. While the Veteran's report in this regard is considered competent, the evidence, inclusive of his statements and the medical evidence of record, does not reflect that his bed rest was prescribed by a physician to be considered an "incapacitating episode" to warrant consideration (or even a higher rating) under the Formula for Rating Intervertebral Disc Syndrome (IVDS) on the Basis of Incapacitating Episodes. Therefore, the Board finds the preponderance of the evidence is against the grant of a rating higher than 20 percent for the service-connected lumbar spine strain. As a result, the benefit-of-the-doubt doctrine is not for application and his increased rating claim is denied. The Board notes that the General Rating Formula for Diseases and Injuries of the Spine directs VA to separately evaluate any objective neurological abnormalities associated with a spinal disability under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235-5243). In this case, the evidence of record suggests that the Veteran's lumbar spine disability is manifested by various neurologic abnormalities; however, additional development is needed in this regard before the Board can render a final decision on this matter. Because there is sufficient evidence of record to adjudicate the Veteran's claim for an increased rating for his lumbar spine disability, the Board finds it is appropriate to bifurcate the increased rating claim from the issue of whether he is entitled to separate ratings for neurologic impairments associated with the service-connected lumbar spine disability. See e.g., Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions). Cervical Spine Disability The Veteran is seeking a higher disability rating for his service-connected cervical spine disability, which is awarded a staged rating under DC 5242 and the General Rating Formula for Diseases and Injuries of the Spine. Accordingly, the Board will consider whether the Veteran's cervical spine disability warrants a rating higher than 20 percent from June 2010 (the date of receipt of his increased rating claim) to September 8 2014, and a rating higher than 30 percent after September 8, 2014. The evidence shows that, prior to and after September 8, 2014, the Veteran's cervical spine disability was manifested by constant pain with flare-ups of additional, accompanying symptoms such as weakness, stiffness, and guarding, which resulted in difficulty turning his neck. The Veteran has also demonstrated limited range of motion in his neck. For the period prior to September 2014, in order to warrant a higher, 30 percent schedular rating, the evidence must show the Veteran's cervical spine disability was manifested by forward flexion limited to 15 degrees of less or favorable ankylosis of the cervical spine. In this case, however, the pertinent evidence of record (dated prior to September 2014) shows the Veteran's forward flexion was limited to no less than 45 degrees, even with pain, after repetitive use testing, and during flare-ups. See VA examination reports dated November 2010 and September 2011. Therefore, a rating higher than 20 percent under DC 5242 and the General Rating Formula for Diseases and Injuries of the Spine prior to September 2014. During the September 2014 VA examination, the Veteran's forward flexion was limited to 15 degrees during repetitive use testing and, as a result, the RO increased the Veteran's disability rating to 30 percent. See September 2014 rating decision. In order to warrant a higher 40 or 100 percent rating, the evidence must show the Veteran's cervical spine disability was manifested by unfavorable ankylosis of the entire cervical spine or unfavorable ankylosis of the entire spine. In this case, while the evidence dated after September 8, 2014 shows the Veteran's cervical spine continued to be manifested by limited range of motion, the Veteran remained able to demonstrate movement in his cervical spine, as the physicians who conducted the VA examinations in September 2014 and August 2017 specifically noted the Veteran did not have ankylosis in his cervical spine, to include a functional impairment approximating immobility or ankylosis in his neck as a result of pain, weakness, stiffness, guarding, or during flare-ups or repetitive use testing. There is also no lay or medical evidence of record showing the Veteran has ever demonstrated ankylosis in his entire spine during the appeal period. Therefore, a rating higher than 30 percent under DC 5242 and the General Rating Formula for Diseases and Injuries of the Spine after September 2014. There is also no competent lay or medical evidence of record showing the Veteran's cervical spine disability has been manifested by IVDS or has otherwise resulted in incapacitating episodes as defined by the Formula for Rating Intervertebral Disc Syndrome (IVDS) on the Basis of Incapacitating Episodes. Therefore, a higher rating for the Veteran's cervical spine disability is not warranted at any point during the appeal period based upon that criterion. Therefore, the Board finds the preponderance of the evidence is against the grant of a rating higher than 20 or 30 percent for the service-connected cervical spine disability prior to or after September 8, 2014, respectively. As a result, the benefit-of-the-doubt doctrine is not for application and his claim is denied. Right Shoulder Bursitis The Veteran is seeking a rating higher than 20 percent for his service-connected right shoulder bursitis, which is rated under the criteria of DC 5201. The evidence shows the Veteran is right hand dominant and, as a result of his service-connected disability, has endorsed having constant pain, stiffness, giving way, and locking episodes. See November 2010 and April 2011 VA examination report. He has reported having flare-ups that result in increased, sharp pain and reaching and lifting his right shoulder. See VA examination reports dated November 2010, April 2011, September 2014, and August 2017. The Veteran has also consistently demonstrated limited range of motion in the right shoulder and, while his range of motion has varied throughout the appeal period, his flexion and abduction have been limited to no less than 80 and 60 degrees, respectively, including as a result of pain, after repetitive use testing, and during passive or weight-bearing range of motion testing. See September 2014 VA examination report. While limited, the Veteran's range of motion warrants no more than a 20 percent rating under DC 5201, as his motion has not been limited midway between his side and shoulder level, i.e., 45 degrees, or to 25 degrees from his side. See 38 C.F.R. § 4.71a, DC 5201. Likewise, while the Veteran's abduction was limited to 60 degrees during the September 2014 VA examination, the examiner specifically noted there was no evidence of ankylosis of the scapulohumeral articulation, i.e., the scapula and humerus moving as one piece, as contemplated by the 30 percent rating under DC 5200. Therefore, DC 5200 does not assist the Veteran in obtaining a higher rating in this case. The Veteran's muscle strength has been normal throughout the appeal period, except for during the September 2014 VA examination when his strength was slightly decreased (4/5) to active movement against some resistance. He demonstrated a positive impingement test during the September 2011 and September 2014 VA examinations, which indicate a rotator cuff tendinopathy or tear; otherwise, however, examiners have noted that his right shoulder disability is not manifested by an impingement of the acromioclavicular joint, clavicle, or scapula. Additionally, while the Veteran reported having locking episodes during the April 2011 VA examination, VA examiners have consistently noted that he does not have a history of recurrent dislocation or subluxation of the glenohumeral or scapulohumeral joints. Therefore, DC 5202 does not assist the Veteran in obtaining a higher rating in this case. Based on the foregoing, the Board finds the preponderance of the evidence is against the grant of a rating higher than 20 percent for the service-connected right shoulder bursitis. As a result, the benefit-of-the-doubt doctrine is not for application and his claim is denied. Right Knee Strain The Veteran is seeking a rating higher than 10 percent for his service-connected right knee strain, which is rated under the criteria of DC 5262. Review of the evidence shows the Veteran has consistently reported having chronic pain in his right knee, which he states increases in severity (i.e., flares up) with extended walking, squatting, or using stairs. See VA examination reports dated September 2014 and August 2017; see also private treatment records dated March 2013 to July 2015. He has also reported that he experiences stiffness in his knee, as well as occasional swelling and giving way which rarely occurs. See November 2016 hearing transcript. Objective examination has revealed the Veteran experiences decreased range of motion in his right knee, with his flexion limited to 110 degrees and 90 degrees, at the September 2014 and August 2017 VA examinations respectively. During those examinations, the Veteran experienced pain while demonstrating range of motion testing but his motion was not additionally limited (to less than 110 or 90 degrees) as a result of his pain, after repetitive use testing, or during passive or weight-bearing range of motion testing. The Veteran was noted to have crepitus in his right knee during the August 2017 VA examination but, otherwise, examination revealed normal muscle strength and stability in the right knee during both VA examinations. Based on the foregoing, the Board finds a rating higher than 10 percent is not warranted for the right knee disability under DC 5262 or any other potentially applicable diagnostic code. As an initial matter, the Board notes that, despite the Veteran's right knee disability, he has never complained of or been shown to have ankylosis, subluxation or lateral instability, or dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion in his right knee joint. Therefore, DCs 5256, 5257, and 5258 do not assist the Veteran in obtaining a rating higher than 10 percent in this case. As noted, the Veteran has demonstrated limited range of motion in flexion during the appeal period; however, his extension has been normal to zero degrees, while his flexion has been limited to no less than 90 degrees, including as a result of pain, after repetitive use testing, or during passive or weight-bearing range of motion testing. In this regard, the Board notes that, while the Veteran has endorsed having flare-ups of right knee pain, VA examiners were unable to state whether and to what extent his pain would additionally limit his functional ability during flare-ups. Nevertheless, the Board notes that the Veteran has provided only general statements regarding his flare-ups in that they occur at night and feel like his knee will explode, without any indication as to what extent the increased pain limits his ability to move/bend his right knee. Regardless, in order to warrant a rating higher than 10 percent based upon limitation of flexion under DC 5260, there must be competent lay or medical evidence showing flexion limited to 30 degrees, which is not shown or more nearly approximated in this case. Therefore, DC 5260 does not assist the Veteran in obtaining a higher rating. Instead, the preponderance of the lay and medical evidence shows the Veteran's right knee strain is manifested by a myriad of symptoms, such as pain, stiffness, and crepitus which result in decreased (yet noncompensable) range of motion and other functional impairments such as limited walking, squatting, and use of stairs. Despite these symptoms, the Veteran retains more than half of movement (flexion) in his right knee and has normal muscle strength with a stable knee joint. Without competent evidence of these and other more severe symptoms and resulting functional impairment in the right knee, the Board finds the Veteran's right knee strain more nearly approximate a slight knee disability as contemplated by the 10 percent rating under DC 5262, but no higher. Therefore, for the foregoing reasons and bases, the Board finds the preponderance of the evidence is against the grant of a rating higher than 10 percent of the Veteran's service-connected right knee strain. As a result, the benefit-of-the-doubt doctrine is not for application and his claim is denied. ORDER A rating in excess of 20 percent for lumbar spine strain is denied. A rating in excess of 20 percent for degenerative disc disease of the cervical spine is denied prior to September 8, 2014. A rating in excess of 30 percent for degenerative disc disease of the cervical spine is denied after September 8, 2014. A rating in excess of 20 percent for right shoulder bursitis is denied. A rating in excess of 10 percent for right knee strain is denied. REMAND The Veteran is seeking an increased rating for his service-connected unspecified neurocognitive disorder, which was previously characterized and rated as a disability manifested by memory loss. In this regard, the psychologist who conducted the September 2014 Mental Disorders VA examination diagnosed the Veteran with a unspecified neurocognitive disorder under the criteria of DSM-5, which she stated was consistent with the diagnosis of a cognitive disorder, not otherwise specified, under the criteria for the DSM-4. The September 2014 VA examiner also noted that she was not a neuropsychologist and that actual evaluation of the Veteran's memory problems would be deferred to a neuropsychologist. Despite the foregoing, the Veteran was not scheduled a neuropsychological evaluation following the September 2014 Mental Disorders examination. Indeed, the record reflects that the subsequent August 2017 VA examination was a Mental Disorders examination conducted by a psychologist, which resulted in a diagnosis of "memory loss" and only provided a general notation regarding the Veteran's short and long- term memory impairment in the context of a standard mental status examination. Given the foregoing, the Board finds a remand is needed to clarify the Veteran's current diagnosis and afford the Veteran an examination that fully describes the nature and severity of his disability, to include a neuropsychological evaluation to determine the nature and severity of his unspecified neurocognitive disorder, if necessary. The evidence of record also raises a question as to whether the Veteran's service-connected lumbar spine disability is manifested by neurologic abnormalities or conditions that warrant a separate disability rating. During the November 2010 VA spine examination, the examiner noted the Veteran experienced intermittent urinary frequency, erectile dysfunction, and alternating diarrhea and constipation but stated that the etiology of those conditions were unknown. However, during the September 2011 VA spine examination, the examiner noted the Veteran experienced nocturia two times a night, erectile dysfunction, numbness and paresthesias in his feet, and unsteadiness, which he stated were not unrelated to the lumbar spine disability. These symptoms and conditions are not noted on subsequent VA examinations. In fact, the examiners who conducted the September 2014 and August 2017 VA examinations specifically noted the Veteran's lumbar spine disability is not manifested by signs or symptoms related to radiculopathy or other neurologic abnormalities. However, clarification is needed to determine whether there are, in fact, separate neurologic manifestations of the lumbar spine disability and, if so, the appropriate rating(s) to be assigned thereto. As such, a remand is needed to obtain an additional medical opinion. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination to ascertain the nature and etiology of any memory impairment. All indicated tests, to include neuropsychological evaluation, should be completed. The examiner should review the file and, after examining the Veteran, clarify the Veteran's diagnosis and describe the nature and severity of all symptoms associated with his memory loss impairment, however diagnosed. 2. Obtain an addendum opinion that addresses whether it is at least as likely as not (i.e., a probability of 50 percent) that the Veteran's service-connected lumbar spine disability is manifested by neurologic impairments, including, but not limited to, nocturia, daytime urinary frequency or urgency, erectile dysfunction, radiculopathy, constipation, or diarrhea. A rationale must be provided for each opinion and the examiner must address the findings of the November 2010 and September 2011 VA examination reports. If any neurologic conditions are determined to be associated with the lumbar spine disability, the examiner must identify the nature and severity of each condition. Appropriate examinations may be scheduled to evaluate each identified condition, if deemed necessary. 3. Readjudicate the claims on appeal. The appellant has the right to submit additional evidence and argument on the 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 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). ______________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs