Citation Nr: 18147436 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 13-32 033 DATE: November 6, 2018 ORDER Entitlement to an initial rating of 40 percent, but no higher, for degenerative disease of the lumbar spine, with intervertebral disc syndrome, (low back disability), exclusive of periods during which the Veteran received temporary total ratings, is granted, subject to the regulations governing the payment of monetary awards. Entitlement to an initial rating higher than 10 percent for peroneal nerve radiculopathy of the right lower extremity is denied. REMANDED Entitlement to an initial rating higher than 10 percent for degenerative joint disease, limitation of flexion, of the right knee (right knee limitation of flexion) is remanded. Entitlement to an initial compensable rating for degenerative joint disease, limitation of extension, of the right knee (right knee limitation of extension) is remanded. Entitlement to an initial rating higher than 10 percent prior to May 31, 2018, and higher than 20 percent thereafter for left knee degenerative disease and residuals of meniscectomy with scars is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 9, 2013, is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the symptoms of the Veteran’s low back disability more nearly approximated forward flexion to 30 degrees or less, and there was no ankylosis or incapacitating episodes. 2. Symptoms of the Veteran’s peroneal nerve radiculopathy of the right lower extremity have not more nearly approximated severe paralysis of the peroneal nerve. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for an initial rating of 40 percent, but no higher, for the low back disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. 2. The criteria for an initial rating higher than 10 percent for peroneal nerve radiculopathy of the right lower are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1989 to June 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2011 and December 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In the February 2011 decision, the RO granted service connection for low back disability and assigned a 20 percent rating, effective August 12, 2010. Also in that decision, the RO awarded service connection for left knee disability, rated as 10 percent disabling, and for radiculopathy of the right lower extremity, rated as noncompensable, both effective August 12, 2010. In the December 2014 rating decision, the RO, inter alia, granted service connection for right knee limitation of flexion and assigned a 10 percent rating and granted service connection for right knee limitation of extension and assigned noncompensable rating, both effective December 5, 2013. The Veteran timely disagreed with the initial ratings assigned. In a July 2013 Statement of the Case (SOC), the AOJ increased the assigned rating for peroneal nerve radiculopathy to 10 percent, also effective August 12, 2010. In a June 2017 rating decision, the Decision Review Officer (DRO) increased the assigned rating for the low back disability to 40 percent, effective June 8, 2017. In a June 2018 rating decision, the RO increased the assigned rating for the left knee disability to 10 percent, May 31, 2018. This created staged ratings for the low back and left knee disability. The Veteran has not expressed satisfaction with the increased disability ratings; these issues, thus, remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). The RO granted temporary 100 percent disability rating for low back disability from January 9, 2014, to April 30, 2014, and from September 24, 2015, to November 20, 2015. As the Veteran is receiving the maximum disability rating during that period, the Board will not address the issue of entitlement to an initial higher for those periods. The RO also awarded service connection for femoral nerve radiculopathy of the right and left lower extremities, both evaluated as 20 percent disabling, effective June 8, 2017. The Veteran has disagreed with the RO’s June 2017 decision assigning separate ratings for femoral nerve radiculopathy of the lower extremities. Thus, those matters are not presently on appeal. In June 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In September 2016, the Board remanded the Veteran’s claims, listed on the title page and other issues not presently on appeal, for additional development. In December 2017, the Board remanded the Veteran’s claims to the agency of original jurisdiction (AOJ) for additional development. For the reasons indicated below, the AOJ complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). During the pendency of the appeal for initial higher ratings for low back disability and peroneal nerve radiculopathy of the right lower extremity, the Veteran filed a formal TDIU indicating that he has been unemployed since October 26, 2012, due to his service-connected right and left knee disabilities, PTSD, and “degenerative nerve disorder.” See Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940) dated June 2014. In September 2016, the Board granted entitlement to a TDIU and in an October 2016 rating decision, the RO implemented the Board’s grant of TDIU and assigned an effective date of January 9, 2013, the date the Veteran met the schedular criteria for TDIU pursuant to 38 C.F.R. §§ 4.16 (a). However, the issue of entitlement to a TDIU, prior to January 9, 2013, is raised as part and parcel of an initial rating claim when the Veteran seeks the highest rating and there is evidence of unemployability due to the disability for which a higher initial rating is being sought. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, since the appeal period for the claim for initial higher ratings for the low back and peroneal nerve radiculopathy of the right lower extremity begins August 12, 2010, the issue of entitlement to TDIU prior to January 9, 2013, is before the Board. Initial Higher Ratings Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial rating higher than 20 percent prior to June 8, 2017, and higher than 40 percent thereafter for a low back disability. The Veteran’s low back disability is rated under 38 C.F.R. § 4.71a, DC 5243. Disabilities rated under DCs 5235 to 5243, unless 5243 is evaluated Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, is rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, DCs 5235, 5237. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply: A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees or for muscle spasms 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 warranted forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. Id. Note (1) instructs to evaluate any associated objective neurologic abnormalities under an appropriate diagnostic code. Note (2) provides that normal forward flexion of the thoracolumbar spine is to zero to 90 degrees. Each range of motion measurement is to be rounded to the nearest five degrees. Alternatively, degenerative disc disease may be rating under the Formula for Rating IVDS Based on Incapacitating Episodes. This formula provides for ratings based upon the frequency and duration of incapacitating episodes during a 12-month period. An “incapacitating episode” is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. 38 C.F.R. § 4.71a, Note (1). Under this formula, ratings are assignable based on the frequency and duration of incapacitating episodes in a 12 month period: 10 percent for a total duration of at least one week but less than 2 weeks; 20 percent rating a total duration of at least 2 weeks but less than 4 weeks; 40 percent rating a total duration of at least 4 weeks but less than 6 weeks; and 60 percent for a total duration of at least 6 weeks. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply. 38 C.F.R. § 4.59 provides, “The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. Turning to the evidence of record, in December 2010, the Veteran was afforded a VA examination. He reported low back pain and flare-ups. He stated that he is unable to complete projects around the home, such as yard work, due to his back pain. He stated that he is employed as a shipping coordinator that requires prolonged standing and walking, which worsens his back pain. Ranges of motion of the thoracolumbar spine were recorded as forward flexion to 80 degrees with pain and extension was to 10 degrees with pain. There were no additional degrees of limitation upon repetitive ranges of motion. The examiner indicated that the Veteran had signs of IVDS. In May 2015, the Veteran was afforded a VA examination. He reported low back pain and flare-ups. He indicated that during flare-ups he has pain, stiffness, and decreased range of motion. Ranges of motion of the thoracolumbar spine were recorded as forward flexion to 60 degrees with pain at 55 degrees and extension was to 5 degrees with pain at 0 degrees. There were no additional degrees of limitation upon repetitive use testing. The examiner indicated that he was unable to estimate what the Veteran’s ranges of motion would be during low back flare-ups because there were no flare-ups upon examination. There was functional loss and/ or functional impairment, in terms of less movement than normal, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting or standing. There was muscle spasm of the thoracolumbar spine that resulted in abnormal gait. The examiner indicated that there was IVDS of the thoracolumbar spine; however, the Veteran did not experience incapacitating episodes over the past 12 months due to IVDS. The examiner concluded that the Veteran’s low back disability impacts his ability to work, as he is unable to lift heavy objects or sit or stand for prolong periods of time. In June 2017, the Veteran was afforded a VA examination. He reported that he has had many surgeries for his low back disabilities, to include low back decompression, laminectomies, and fusions. He stated that he is not working due to his depression, back and knee problems. He stated that he currently has low back pain and flare-ups. He indicated that during flare-ups he is unable to stand for no more than 5 minutes, walk more than 20 yards, or rise from chair. Ranges of motion of the thoracolumbar spine were recorded as forward flexion to 15 degrees and extension was to 15 degrees. The examiner indicated that he was unable to estimate the Veteran’s ranges of motion during a flare-up because there were no flare-ups upon examination. The examiner concluded that the Veteran’s low back disability impacts his ability to work. The examiner noted that the Veteran’s ranges of motion were limited to his pain on movement and his lumbar fusion and degenerative changes. He had muscle spasm of the thoracolumbar spine that resulted in abnormal gait or abnormal spinal contour. The examiner indicated that there was no ankylosis. The examiner indicated that there was IVDS of the thoracolumbar spine; however, the Veteran did not experience incapacitating episodes over the past 12 months due to IVDS. In May 2018, the Veteran was afforded a VA examination. He reported low back pain and flare-ups. He described his flare-ups as pain and throbbing. He stated that his bending and squatting are limited due to his low back pain and that he has difficulty rising from a sitting position. Ranges of motion of the thoracolumbar spine were recorded as forward flexion to 30 degrees and extension was to 5 degrees. The examiner indicated that pain on examination and causes functional loss. The Veteran was unable to perform repetitive-use testing because of his low back pain. The Veteran had muscle spasms that resulted in abnormal gait or abnormal spine contour. There was no ankylosis of the spine. The examiner indicated that there was IVDS of the thoracolumbar spine; however, the Veteran did not experience incapacitating episodes over the past 12 months due to IVDS. The examiner concluded that the Veteran’s low back disability impacts his ability to work. For the following reasons, throughout the appeal period, the Veteran’s low back disability more nearly approximated the criteria for a 40 percent rating, but no higher, under the General Rating Formula for Diseases and Injuries of the Spine. The evidence shows that the since June 8, 2017, the Veteran’s low back disability was limited, at worst, to forward flexion of 15 degrees. See VA examination report dated June 2017. However, prior to June 8, 2017, the Veteran’s low back disability was limited, at worst, to forward flexion of 60 degrees with pain at 55 degrees. To this extent, although the Veteran’s low back disability was not limited to 30 degrees or less prior to June 8, 2017, during every VA examination, the Veteran reported back pain and flare-ups. He indicated that during flare-ups he has decreased range of motion and that he is unable to stand for no more than 5 minutes, walk more than 20 yards, or rise from chair. There has been no VA examiner that has estimated what additional loss of range of motion would result during a flare-up. Thus, the evidence establishes that the Veteran’s range of motion is significantly limited due to pain during flare-ups. Notably, consistently throughout the appeal period, the Veteran has had muscle spasm of the thoracolumbar spine that resulted in abnormal gait. Also, he reported that he requires the use of a brace and cane for ambulation. Therefore, in light of the above and considering the Veteran’s low back pain, flare-ups, and the inability for any examiner to estimate the range of motion of the back during a flare-up, the evidence is at least evenly balanced as to whether the symptoms of the low back disability more nearly approximate forward flexion less than 30 degrees required for a 40 percent rating under the General Rating Formula. As 40 percent is the highest schedular rating for limitation of motion, the Board does not have to consider whether he is entitled to a higher disability rating because of functional loss under §§ 4.40 and 4.45. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In Johnston, the Court indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. Id. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). For the same reasons, as the Veteran is now in receipt of the highest schedular rating for limitation of motion, the Court’s holding in Correia, 28 Vet. App. at 158 is not applicable here. See also Sharp, 29 Vet. App. 26 at 33 (finding orthopedic examination inadequate with regard to flare-ups where the examination was the basis for a denial of a higher disability rating and the Veteran was not receiving the maximum schedular rating based on limitation of motion). There is no other basis for an initial rating higher than 40 percent. Neither the reports of examination or the Veteran’s statements indicate that there was unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. Similarly, there is no evidence showing that a physician required bed rest for a duration of six weeks during the past 12 months, as required under the Formula for Rating IVDS. For the foregoing reasons, the preponderance of the evidence reflects that an initial rating of 40 percent, but no higher, is warranted for the Veteran’s low back disability. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 2. Entitlement to an initial rating higher than 10 percent for peroneal nerve radiculopathy of the right lower extremity. The Veteran’s peroneal nerve radiculopathy of the right lower extremity is rated under DC 8522. Under DC 8522, the musculocutaneous nerve, a 20 percent rating is warranted when there is incomplete paralysis that is “severe” in nature. A 30 percent rating is warranted for complete paralysis. 38 C.F.R. § 4.124a. In December 2010, the Veteran was afforded a VA examination. Upon physical examination of the low back, the Veteran reported radiating pain on movement and weakness. The examiner indicated that there was sensory deficit of the right lateral leg and right lower extremity reflexes of the knee jerk and ankle jerk were +2. His cutaneous were normal. The examiner indicated that the Veteran had tenderness and decreased sensation of the right lateral distal leg. The examiner found that the peroneal nerve is involved. For the following reasons, entitlement to an initial rating higher than 10 percent for peroneal nerve radiculopathy of the right lower extremity is not warranted. Symptoms of the Veteran’s peroneal nerve radiculopathy of the right lower extremity have not more nearly approximated severe paralysis of the peroneal nerve. To this extent, the Veteran reported radiating pain on movement and weakness, which was attributed to his peroneal nerve. Although, the Veteran had tenderness and decreased sensation of the right lateral distal leg, the examiner indicated that the Veteran’s right lower extremity reflexes were normal. As such, the Veteran’s peroneal nerve symptoms do not more nearly approximate severe. Notably, during the appeal period, the Veteran was afforded VA examinations to determine the current severity of his service-connected low back disability. During these examinations, he reported symptoms of pain and numbness in his right lower extremity. Notably, the May 2015 June 2017, and May 2018 VA examiners attributed his symptoms to other nerves (such as the femoral and sciatic nerves) than the peroneal nerve. As noted in the introduction, the Veteran is already service-connected for those nerves identified during those examinations and he did not disagree with the assigned ratings. For the foregoing reasons, entitlement to an initial rating higher than 10 percent for peroneal nerve radiculopathy of the right lower extremity is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. 38U.S.C. § 5107 (b); 38C.F.R. §4.3. The Board has considered the Veteran’s initial rating claims and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). REASONS FOR REMAND 1. Entitlement to initial higher ratings for right and left knee disabilities. In December 2017, the Board remanded the Veteran’s initial higher ratings for right and left knee disabilities to, among other things, obtain a VA examination to determine the current severity of the Veteran’s right and left knee disabilities. Specifically, in its remand, the Board noted that if pain is present during the range of motion, the examiner should identify at what point during the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. In May 2018, the Veteran was afforded a VA examination. Upon ranges of motion testing the examiner indicated that the Veteran had pain on motion and that pain caused functional loss; however, the examiner did not indicate at what degrees the Veteran experienced pain. The United States Court of Appeals for Veterans Claims (Court) has found similar examination findings to be inadequate because the examiner did not explicitly report “whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain.” Mitchell, 25 Vet. App. At 44. See also Sharp, supra. Therefore, a remand is necessary to afford the Veteran a VA examination to determine the current severity of his service-connected right and left knee disabilities. 2. Entitlement to a TDIU prior to January 9, 2013. As indicated above, the Veteran has raised the issue of entitlement to a TDIU as part and parcel of his claim for initial higher ratings for low back disability and peroneal nerve radiculopathy of the right lower extremity. See VA Form 21-8940 dated June 2014. To this extent, in the Veteran’s June 2014 VA Form 21-8940, he indicated that he has been unemployed since January 9, 2013, in part, due to his service-connected peroneal nerve radiculopathy of the right lower extremity. During the December 2010 VA examination, the Veteran reported that he is employed as a shipping coordinator that requires prolonged standing and walking, which worsens his back pain. Prior to January 9, 2013, the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). Thus, must be given to whether his service connected disabilities render him unemployable under 38 C.F.R. § 4.16(b). The Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Given the above evidence, such consideration is warranted. These matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination as to the severity of his service-connected right and left knee disabilities. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should examine the Veteran and render findings in accordance with the currently applicable disability benefits questionnaire. All opinions must be supported by a detailed rationale. (Continued on the next page)   2. Adjudicate the issue of entitlement to a TDIU prior to January 9, 2013, to include submitting the issue to the Director of Compensation pursuant to 38 C.F.R. § 4.16(b). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel