Citation Nr: 18146309 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-33 617 DATE: October 31, 2018 ORDER Entitlement to a disability rating in excess of 10 percent for a neck condition is denied. Entitlement to a disability rating of 10 percent, but no higher, for a scar on the left knee is granted; subject to subject to the law and regulations governing the award of monetary benefits. REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a right ankle condition is remanded. Entitlement to a disability rating in excess of 10 percent for a left knee condition is remanded. Entitlement to an effective date earlier than July 30, 2013 for the assignment of service connection for a scar on a left knee is remanded. Entitlement to service connection for a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Flexion of the cervical spine exceeded 30 degrees; combined range of motion exceeded 170 degrees; there was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; and there was no evidence of ankylosis. 2. An unstable scar presented on the left knee; there was no evidence of more than two scars that were painful or unstable; any scars of the head, face, or neck; any deep and linear scars; or additional limitations due to scars. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for a neck condition have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2018). 2. The criteria for a disability rating of 10 percent for a scar on the left knee have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7805 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1983 to April 1987. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia made in June 2013 and June 2014. The Veteran appealed the denial of entitlement to service connection for a bilateral foot condition and an acquired psychiatric disorder. The Veteran, however, was granted service connection for a bilateral foot disorder in July 2016; as well as granted service connection for an acquired psychiatric disorder in July 2018. These are considered complete grants of the Veteran’s claims, and the Board shall not address them further. The Veteran appealed the effective date for the assignment of service connection for a left knee condition. In January 2010, the Veteran was first assigned service connection for a left knee condition and assigned a disability rating of 10 percent effective May 15, 2009. The Veteran was notified of the decision in January 2010. In June 2014, the RO continued the Veteran’s disability rating of 10 percent, and, in August 2014, the Veteran submitted a NOD appealing the effective date for the assignment of service connection. As the Veteran’s NOD was submitted well after one year from the date of notification of the decision in January 2010, the Board finds the submission of the NOD untimely and shall not address it any further. The Board notes that the Veteran appealed the effective date for the assignment of service connection for a neck condition. In February 2010, the Veteran was first assigned service connection for a neck condition and assigned a disability rating of 10 percent effective May 15, 2009. The Veteran was notified of the decision in February 2010. In June 2014, the RO continued the Veteran’s disability rating of 10 percent, and, in August 2014, the Veteran submitted a NOD appealing the effective date for the assignment of service connection. As the Veteran’s NOD was submitted well after one year from the date of notification of the decision in February 2010, the Board finds the submission of the NOD untimely and shall not address it any further. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a disability rating in excess of 10 percent for a neck condition At issue is whether the Veteran is entitled to a disability rating in excess of 10 percent for a neck condition. Entitlement to an increased disability rating is denied. The Veteran first filed for service connection in May 2009, and, in February 2010, the RO granted service connection and assigned a disability rating of 10 percent. The Veteran filed an increased rating claim in July 2013, and, in June 2014, the RO denied the Veteran’s increased rating claim. The Veteran appealed. Disability ratings of the neck are assigned pursuant to the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. The Formula for Rating IVDS Based on Incapacitating Episodes is not raised by the record, because the Veteran’s VA examinations and treatment records do not indicate that the Veteran manifested IVDS with incapacitating episodes. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Under the General Rating Formula for Diseases and Injuries of the Spine, a disability rating of 10 percent is assigned when forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees, or the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; or there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or there is a vertebral body fracture with loss of 50 percent or more of the height. Combined range of motion is the sum of the flexion, extension, left and right lateral flexion, and left and right lateral rotation. A disability rating of 20 percent is assigned when the forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the cervical spine is greater than 120 degrees but not greater than 170 degrees; or there is 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 disability rating of 30 percent is assigned when the forward flexion of the cervical spine is 15 degrees or less; or there is favorable ankylosis of the entire cervical spine. A disability rating of 40 percent is assigned when there is unfavorable ankylosis of the entire cervical spine, and a total disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Ankylosis is not raised by the record, because the Veteran’s examinations and treatment records do not show that the Veteran manifested ankylosis. Therefore, the criteria for a disability rating of 40 percent and a total disability rating do not provide an adequate disability rating, because the criteria for these two disability ratings require the Veteran to manifest ankylosis. Additionally, the Veteran shall only consider the criteria for a disability rating of 30 percent based on criteria that does not require ankylosis. The Veteran’s treatment records and statements indicate that the Veteran manifested neck symptoms throughout the period on appeal. The Veteran underwent a VA examination in December 2013. The Veteran claimed that his neck symptoms had gotten worse. The Veteran reported pain and stiffness in his neck. The Veteran’s flexion was 45 degrees, and the Veteran’s combined range of motion was 340 degrees. The Veteran was able to perform three repetitions of range of motion testing without any additional range of motion testing. The examiner indicated that there was no additional functional limitation. The examiner indicated that the Veteran did not manifest in guarding or muscle spasm sufficient to result in abnormal gait or an abnormal spinal contour. Muscle strength testing results were normal. The Veteran did not manifest ankylosis of the spine or incapacitating episodes due to IVDS. The Veteran underwent another VA examination in July 2018. The Veteran reported stiffness and pain, and the Veteran claimed that his neck pain made it hard for the Veteran to do anything. The Veteran’s flexion was 40 degrees, and the Veteran’s combined range of motion was 285 degrees. The Veteran was able to perform repetitive range of motion testing without additional loss of range of motion. The examiner indicated that the Veteran’s condition was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner indicated that he was not unable to say without mere speculation whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time or during flare-ups. Muscle strength testing revealed normal strength. The examiner indicated that there was no guarding or muscle spasm or ankylosis of the cervical spine, and the Veteran did not manifest incapacitating episodes due to IVDS. The weight of the evidence indicates that the Veteran is not entitled to a disability rating in excess of 10 percent. In order to meet the criteria for a disability rating in excess of 10 percent, the Veteran needed to manifest a flexion of 30 degrees or less; a combined range of motion of 170 degrees or less; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or ankylosis of the spine. The Veteran’s flexion was always in excess of 30 degrees. The Veteran’s combined range of motion was always in excess of 170 degrees. The Veteran did not manifest muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Finally, ankylosis, as previously noted, has not been raised by the record. Therefore, the Veteran has not met the criteria for a disability rating in excess of 10 percent. In evaluating disabilities of the musculoskeletal system however, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain however, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (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. The weight of the evidence does not indicate that the Veteran manifested additional functional impairment sufficient to warrant an increased disability rating. The Veteran was consistently able to perform three repetitions of range of motion testing without additional loss of range of motion. Muscle strength testing was consistently normal. One VA examiner indicated that the Veteran did not manifest additional functional impairment, and another VA examiner indicated that it could not be determine without resorting to mere speculation whether the Veteran manifested additional functional impairment. Therefore, the evidence of record does not demonstrate that the Veteran manifested additional functional impairment severe enough to warrant a disability rating in excess of 10 percent. Here, the weight of the probative evidence of record fails to demonstrate that the Veteran is entitled to a disability rating in excess of 10 percent throughout the period on appeal. Therefore, the evidence in this case is not evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to a disability rating in excess of 10 percent for a neck condition is denied. 2. Entitlement to a compensable disability rating for a scar on the left knee At issue is whether the Veteran is entitled to a compensable disability rating for a scar of the left knee. The weight of the evidence indicates that the Veteran is entitled to a disability rating of 10 percent. The Veteran first filed for service connection for his left knee in May 2009, and, in January 2010, the RO granted a single disability rating of 10 percent for the left knee with a scar effective May 15, 2009. The Veteran filed an increased rating claim in June 2012, and, in June 2014, the RO granted a separate non-compensable disability rating for a scar of the left knee effective July 2013. The Veteran’s scars are evaluated pursuant to Diagnostic Code 7800, 7801, 7802, 7804, and 7805. Diagnostic Code 7800 (scars of the head, face, or neck) is not raised by the record, because the Veteran is only being evaluated for a single scar of the left knee. Diagnostic Code 7801 (deep non-linear scars) are not raised by the record, because the Veteran’s only scar is superficial. Diagnostic Code 7802 is not raised by the record, because, as discussed below, the Veteran is entitled to a disability rating of 10 percent. Ten percent is the maximum disability rating under Diagnostic Code 7802, and, therefore, Diagnostic Code 7802 does not provide an adequate basis for an increased disability rating. Diagnostic Code 7805 (additional disabling effects) is not raised by the record, because none of the scars resulted in complications, conditions, signs, symptoms, muscle damage, or nerve damage. Therefore, Diagnostic Code 7804 is the only other rating criteria that the Board must consider. 38 C.F.R. § 4.118. Under Diagnostic Code 7804, a disability rating of 10 percent is assigned when there are one or two scars that are unstable or painful. The criteria for a disability rating in excess of 10 percent is not raised by the record, because the criteria requires the Veteran to manifest more than two scars; but the Veteran is only being evaluated for one scar. 38 C.F.R. § 4.118, Diagnostic Code 7804. The Veteran’s treatment records and statements indicate that the Veteran manifested a scar of the left knee throughout the period on appeal. The Veteran underwent a VA examination in December 2013. The examiner indicated that the Veteran had a scar on the left knee that was 3.2 sq. cm. The examiner indicated that the Veteran’s scars were not painful or unstable. The Veteran underwent another VA examination in July 2018. The Veteran did not report that his scar was painful or that it caused additional impairment. The examiner did not identify any unstable or painful scars. The examiner indicated that none of the scars resulted in complications, conditions, signs, symptoms, muscle damage, or nerve damage. The examiner indicated that the Veteran had a superficial non-linear scar that had a total area of 40 sq. cm. The Veteran is entitled to a disability rating of 10 percent. The Veteran has a single scar that that had a total surface area of 3.2 sq. cm. in December 2013 and a total surface area of 40 sq. cm. in July 2018. The fact that these two measurements could be so radically different suggests that the Veteran’s scar is unstable, and therefore, resolving all doubt in favor of the Veteran, the Board finds that the Veteran’s scar of the left knee most closely resemble the criteria for a disability rating of 10 percent. Here, the weight of the probative evidence of record indicates that the Veteran is entitled to a disability rating of 10 percent throughout the period on appeal. Therefore, the evidence in this case is evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to a disability rating of 10 percent for a scar on the left knee is granted. REASONS FOR REMAND 1. Entitlement to service connection for a back condition is remanded. The Veteran contends that he is entitled to service connection for a back condition. The Veteran submitted medical literature suggesting a link between the Veteran’s back condition and the Veteran’s pre-existing acquired psychiatric disorder. This is sufficient to trigger VA’s duty to assist, and, therefore, this matter must be remanded in order to provide the Veteran with a VA examination evaluating the relevance if any of the medical literature submitted by the Veteran. 2. Entitlement to service connection for a right ankle condition is remanded. The Veteran contends that he is entitled to service connection for a right ankle condition. The Veteran submitted medical literature suggesting a link between the Veteran’s ankle condition and the Veteran’s pre-existing acquired psychiatric disorder. This is sufficient to trigger VA’s duty to assist, and, therefore, this matter must be remanded in order to provide the Veteran with a VA examination evaluating the relevance if any of the medical literature submitted by the Veteran. 3. Entitlement to a disability rating in excess of 10 percent for a left knee condition is remanded. The Veteran contends that he is entitled to a disability rating in excess of 10 percent for a left knee condition. As described above, the Veteran’s claim for entitlement to service connection for a right knee condition is being remanded for a new VA examination. Examinations of one knee often reveal facts and data about the current condition of the other knee. Therefore, this matter is inextricably intertwined with the above, and it must be remanded as well in order to avoid piecemeal appellate litigation. Harris v. Derwinski, 1 Vet. App. 180 (1991). 4. Entitlement to an effective date earlier than July 30, 2013 for the assignment of service connection for a scar on a left knee is remanded. The Veteran contends that he is entitled to an effective date earlier than July 30, 2013 for the assignment of service connection for a scar on the left knee. The Veteran was previously assigned a single disability rating of 10 percent for a left knee and a scar. In June 2014, the Veteran was assigned two separate disability ratings for left knee and a scar of the left knee. The disability rating for the Veteran’s scar was assigned effective July 30, 2013, and the Veteran filed a NOD in August 2014. Unfortunately, a SOC responsive to the Veteran’s claim for an earlier effective date was not issued. Moreover, the record does not contain documentation that VA is aware of or otherwise currently evaluating the Veteran’s claim. Therefore, the Board shall take special jurisdiction over this matter for the purposes of remanding it for the issuance of a SOC. 5. Entitlement to TDIU is remanded. Entitlement to TDIU has been raised by the record; Rice v. Shinseki, 22 Vet. App. 47 (2009); because a December 2013 VA examination indicated that the Veteran’s neck condition impacted the Veteran’s ability to work. Moreover, the issue of entitlement to TDIU is inextricably intertwined with the above issues and must be remanded as well. See Harris. The matters are REMANDED for the following action: 1. Arrange to provide the Veteran with a VA examination in order to determine the significance, if any, of the medical literature submitted by the Veteran indicating that there is a link between the Veteran’s previously service connected acquired psychiatric disorder and pain; and, therefore, the Veteran’s claimed back condition; and explain why. 2. Arrange to provide the Veteran with a VA examination in order to determine the following: (a.) Evaluate the current severity of the Veteran’s knee. (b.) What is the significance, if any, of the medical literature submitted by the Veteran indicating that there is a link between the Veteran’s previously service connected acquired psychiatric disorder and pain; and, therefore, the Veteran’s claimed left knee condition? Why? 3. Then, readjudicate the claims of entitlement to service connection for a back condition, entitlement to service connection for a right knee condition, and entitlement to an increased disability rating for a left knee condition. If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate opportunity to respond thereto before returning the case to the Board, if in order. 4. Issue an SOC for the Veteran’s claim for entitlement to an effective date earlier than July 30, 2013 for the assignment of service connection for a scar of the left knee. Do not return this matter to the Board unless the Veteran perfects an appeal on this issue. K. A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel