Citation Nr: 18146440 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-24 084 DATE: November 1, 2018 ORDER Entitlement to an increased disability rating in excess of 10 percent prior to February 27, 2017 for lumbosacral spine disorder is denied. REMANDED Entitlement to an increased disability rating in excess of 20 percent from February 27, 2017 for lumbosacral spine disorder is remanded. Entitlement to an increased disability rating in excess of 10 percent for bilateral foot disorder is remanded. FINDING OF FACT The objective medical evidence shows that at no time prior to February 27, 2017 did the Veteran exhibit forward flexion of the thoracolumbar spine greater than 30 degrees, but less than or at 60 degrees, his combined range of motion in degrees was at no time at or less than 120 degrees and he did not exhibit signs of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent prior to February 27, 2017 for lumbosacral spine disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003 and 5236 and the General Rating Formula for Diseases and Injuries of the Spine. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from June 1974 to October 1974 and from May 1978 to August 1985. Although the Veteran’s May 2016 VA Appeals Form 9 states he is appealing the denial of service connection for personality disorder, the record shows that an April 2017 rating decision granted service connection for depression at a 70 percent disability rating. Therefore, as each of the above-mentioned disorders is understood to fall under the broad heading of “psychiatric disorders,” the claim for personality disorder has been granted and the issue of service connection is no longer before the Board. 1. Entitlement to an increased disability rating in excess of 10 percent prior to February 27, 2017 for lumbosacral spine disorder. Rating Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In deciding the Veteran’s higher rating claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Court previously indicated that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). However, the Court recently suggested that the plain language of 38 C.F.R. § 4.59 indicates that it is potentially applicable to the evaluation of musculoskeletal disabilities involving joint or periarticular pathology that are painful, whether or not evaluated under a diagnostic code predicated on range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158 (2016); Southall-Norman v McDonald, 28 Vet. App. 346 (2016). In Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017), the Court noted that the VA Clinician’s Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from a Veteran. Initially, to the extent that evaluations dated prior to February 27, 2017 d not comply with the recent Court directives, that matter cannot be retroactively remedied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome 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. The disabilities of the spine that are rated under the General Rating Formula include vertebral fracture or dislocation (Diagnostic Code (DC) 5235), sacroiliac injury and weakness (DC 5236), lumbosacral or cervical strain (DC 5237), spinal stenosis (DC 5238), unfavorable or segmental instability (DC 5239), ankylosing spondylitis (DC 5240), spinal fusion (DC 5241), and degenerative arthritis of the spine (DC 5242) (for degenerative arthritis of the spine, see also DC 5003). In relevant part, 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 forward flexion of the thoracolumbar spine 30 degrees or less; or, unfavorable 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) of the General Rating Formula 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 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 of the thoracolumbar spine is 240 degrees. 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. A June 2007 rating decision granted service connection for lumbosacral spine disorder at a 10 percent disability rating, effective August 27, 2005. The Veteran’s lumbosacral spine disorder was rated under DC 5236 for sacroiliac injury and weakness and DC 5003 for degenerative arthritis. The Veteran seeks an increased disability rating in excess of 10 percent for the relevant period prior to February 27, 2017. In June 2007, the Veteran underwent a general medical VA examination. The VA examiner’s findings for the Veteran’s spine included the Veteran’s posture is erect, his gait is steady and he walked in a normal fashion; the cervical, thoracic and lumbar spine does not reveal any erythema, edema, there is no tenderness of the spine, but there is a mild curvature to the left. Range of motion results for the thoracolumbar spine showed forward flexion is 0-90 degrees without limitation due to pain; extension is 0-30 degrees without limitation due to pain; left and right lateral flexion is 0-30 degrees without limitation due to pain; left and right lateral rotation is 0-30 degrees with limitation due to mild pain; and there are no additional degrees lost with repetitive use due to pain, fatigue or lack of endurance. Examination of the Veteran’s extremities did not reveal any effusions tenderness, muscle spasm, swelling, joint laxity, or atrophy. Neurological testing showed normal gait, stance and coordination; normal cranial nerves II-XII; deep tendon reflexes are normal; pain, touch, temperature, and vibration are normal; Babinski sign is normal; and no sensory deficits noted with testing of the monofilament of 5.0. She concluded that the neurological examination is unremarkable. After reviewing that day’s x-rays, the June 2007 VA examiner diagnosed the Veteran with “a minimal lumbosacral instability and scoliosis to the left. Mild spondylosis from L2-L4. Degenerative facet joints on the right from L2-S1. A minimal right sided sacroiliitis.” June 2010 x-rays revealed degenerative joint disease of the lumbar spine. In August 2010, the Veteran again underwent a VA examination for the spine, in which findings for the thoracolumbar sacrospinalis (muscle) on either side showed no spasms, atrophy, guarding, pain with motion, tenderness, or weakness. Lasègue’s sign (straight-leg raise test) was negative. X-rays revealed degenerative change, but no acute osseous abnormality involving the lumbar spine. The Veteran’s diagnosis included low-back pain and degenerative arthritis of the spine. Effects on occupational function were increased pain in the back and feet; decreased mobility; problems with lifting and carrying; decreased strength in the lower extremities; and pain. Effects on activities of daily living would be identical or similar. In April 2011, the Veteran presented for another VA examination for spine. Active range of motion findings for the thoracolumbar spine were the following: Flexion: 0 to 75 degrees; extension: 0 to 20 degrees; left lateral flexion: 0 to 20 degrees; left lateral rotation: 0 to 20 degrees; right lateral flexion: 0 to 20 degrees; right lateral rotation: 0 to 20 degrees. The April 2011 VA examiner further found objective evidence of pain on active range of motion. December 2011 x-rays findings indicated low-back pain with probable sciatica. August 2014 x-rays of the lumbar spine showed degenerative joint disease at multiple sites with scoliosis. October 2016 x-rays showed degenerative joint disease of the spine. The Board notes at this point that the treatment record offers no findings of radiculopathy, associated with the Veteran’s lumbosacral spine disorder. As stated above, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees. The foregoing summary of the treatment record for the period of August 27, 2005 through February 27, 2017 shows that, in the Veteran’s latest VA examination in April 2011, forward flexion was recorded at 75 degrees, 15 degrees of motion beyond the limitation of motion necessary to attain an increase to a 20 percent rating. Previous range of motion findings for forward flexion in the June 2007 VA examination were at 90 degrees (full and normal). Nothing in the record for this period provides findings for forward flexion which would warrant an increase from the 10 percent rating granted. Alternatively, under the General Rating Formula, an increased rating to 20 percent might be achieved if the combined ranges of motion of the thoracolumbar spine is not greater than 120 degrees. The April 2011 and June 2007 VA examination findings for ranges of motion in all maneuvers, to include forward flexion, extension, right and left lateral flexion, and right and left lateral rotation come to 170 and 180 degrees, respectively, well beyond the combined limited motion of 120 degrees, required for an increased rating. The General Rating Formula also allows for an increase to 20 percent if signs are exhibited of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis (abnormal lateral curvature), reversed lordosis (excessive inward curvature), or abnormal kyphosis (excessive outward curvature). As stated above, the June 2007 VA examiner diagnosed the Veteran with “a minimal lumbosacral instability and scoliosis to the left.” However, before making her diagnosis, she also specifically found erect posture, a steady gait, normal walking, no erythema or edema, no tenderness of the spine, and “a mild curvature to the left.” These findings plainly do not indicate effects of muscle spasm or guarding severe enough to result in an abnormal gait or the abnormal spinal contour of scoliosis. Quite the contrary, they indicate, in effect, there is curvature despite the absence of severe spasm or guarding as a reaction to pain. Although the June 2007 VA examiner’s finding of “mild curvature to the left” is later characterized in her diagnosis as “scoliosis to the left,” there are no findings to show that the curvature is due to severe effects of spasm or guarding, as required under the General Rating Formula. Additionally, as stated above, the record contains August 2014 x-rays findings showing “degenerative joint disease at multiple sites with scoliosis.” However, once again, no findings are offered showing that the finding of scoliosis is caused by severe spasms or a severe level of guarding from pain. In both the June 2007 VA examination and the August 2014 x-rays, the identification of “scoliosis” is, in effect, incidental and without connection to other signs or symptoms. The Board further notes that the August 2010 VA examiner found the thoracolumbar sacrospinalis muscle on either side showed no spasms, atrophy, guarding, pain with motion, tenderness, or weakness, indicating in these findings that there is no effect on the spine to cause curvature in any direction. Based on the above findings, a higher disability rating for the thoracolumbar spine at 40 percent under the General Rating Formula is not available, as range of motion findings for forward flexion must show even greater limitation. The 50 percent rating is not available, as no findings indicate unfavorable ankylosis (frozen in an unnatural position) of the entire thoracolumbar spine. Once again, the June 2007 VA examiner found no more than “a mild curvature to the left.” Moreover, there are no findings by any treatment provider or examiner in the record indicating unfavorable ankylosis for the entire spine, as required for a 100 percent disease rating. Under Diagnostic Code 5003, degenerative arthritis, when substantiated by x-rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Therefore, as the Veteran has been rated at 10 percent under Diagnostic Code 5236, no separate rating for arthritis under Diagnostic Code 5003 is permitted, as an additional rating for the Veteran’s arthritis would constitute the evaluation of the same disability and symptomatology under multiple diagnoses, that is to say, by “pyramiding” one effectively identical diagnosis on top of another. 38 C.F.R. § 4.14. See also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Even under its own terms, as just stated, Diagnostic Code 5003 first directs the rater to the appropriate diagnostic code to determine the limitation of motion of the specific joint or joints involved and, in the instant case, Diagnostic Code 5236 defers to the General Rating Formula. When a disability rating is then assigned, as in this case, no “extra” rating for arthritis is available. Based on the objective medical evidence, the Board finds at no time prior to February 27, 2017 did the Veteran exhibit forward flexion of the thoracolumbar spine greater than 30 degrees, but less than or at 60 degrees, his combined range of motion in degrees was at no time at or less than 120 degrees and he did not exhibit signs of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. Consequently, a disability rating in excess of 10 percent prior to February 27, 2017 for lumbosacral spine disorder is not warranted. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to an increased disability rating in excess of 20 percent from February 27, 2017 for lumbosacral spine disorder. The February 2017 VA examination for thoracolumbar spine is inadequate, as it does not specify whether findings for passive range of motion and non-weight bearing maneuvers were made, as required under Correia. Moreover, the February 2017 VA examiner stated she could not provide findings for significant limitation of functional ability with repeated use over time, due to pain, weakness, fatigability, or incoordination, “without resorting to mere speculation.” As a higher disability rating is sought, findings from comprehensive maneuvers of the thoracolumbar spine and estimations of inhibited functionality based on the professional knowledge and judgment of the VA examiner are determinative of the Veteran’s claim. For these reasons, the claim is remanded for a new VA examination. 2. Entitlement to an increased disability rating in excess of 10 percent for bilateral foot disorder. The February 2017 VA examination for bilateral foot disorder is inadequate. Although the Board is well aware that the examination includes findings for pain on weight-bearing and non-weight-bearing, it does not specify whether findings for passive range of motion were made, as required under Correia. Although Diagnostic Code 5284, under which the Veteran’s bilateral foot disorder has been evaluated, does not require range of motion findings, in Southall-Norman v. McDonald, the Court held, in a case involving rating of disabilities of the feet, that the plain language of § 4.59 indicates that it is potentially applicable to the evaluation of musculoskeletal disabilities involving joints that are painful, whether or not evaluated under a diagnostic code predicated on range of motion measurements. In addition, in Sharp, the Court explained that “the VA Clinician’s Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from a veteran, including during flare-ups. The examiners should elicit relevant information as to a veteran’s flares with a description of the additional functional loss, if any, a veteran suffers during flares. The examiner should estimate a veteran’s functional loss due to flare-ups based on all the evidence of record-including the lay information or sufficiently explain why the examiner cannot do so. Accordingly, the claim is remanded for a new VA examination. The matters are REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for lumbosacral spine disorder and bilateral foot disorder at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the record, but whether or not records are obtained, arrange for examinations conducted by VA examiners with appropriate specialties for producing findings for lumbosacral spine and foot disorders. The complete electronic claims file must be made available to the examiners in conjunction with the examination. The examiners should detail all findings. The examinations should provide findings and diagnoses as to the nature, extent and current severity of the service-connected lumbosacral spine disorder and bilateral foot disorder. Both examinations must produce findings showing that the thoracolumbar spine and both feet were tested for pain, for active and passive motion, in weight-bearing and non-weight-bearing maneuvers, and with comparisons to the ranges of motion of any opposite undamaged joint, if applicable. The examiners are requested to render adequate consideration in assessing functional loss during flare-ups due to pain and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint. It will be insufficient for the examiners to state that determining the effects of functional loss during flare-ups would be mere speculation. Furthermore, if the Veteran reports knee flare-ups, the examiners are requested to produce findings reflecting the extent of impairment of function attributable to flare-ups. However, if flare-ups are not exhibited during the examinations, it will be insufficient for the examiners to state that determining the effects of functional loss during flare-ups would be mere speculation. The examiners must elicit from the Veteran details as to the effects on function during flare-ups and then estimate the loss of motion and function in terms of degrees, using his or her medical knowledge, experience and professional judgment. The examiners are further requested to produce findings in this manner when testing for repeated use over time. The examiners should comment on the findings and opinions of other examiners, which appear in the record. In addition, the examiners should acknowledge, address, consider, and discuss all lay evidence in the record pertaining to the Veteran’s right-knee disorders, including the Veteran’s lay statements, any lay statements of his wife, other family members, friends, co-workers, or others, as well as the Veteran’s reports to providers, as they appear throughout the record. Findings should be reconciled with other records on file to the extent possible. J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Franke, Associate Counsel