Citation Nr: 18150573 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 08-37 515 DATE: November 15, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent for instability of the left knee effective August 1, 2007 to August 12, 2008 (formally rated as arthroscopic debridement with microfracture technique to posteromedial femoral condyle, status post-operative ACL reconstruction of the left knee) is denied. Entitlement to an initial disability rating for left knee arthritis with limitation of motion, status post medial compartment knee replacement, in excess of 10 percent effective August 1, 2007 to August 12, 2008 is denied. Entitlement to an initial disability rating in excess of 30 percent for residuals of left knee replacement effective October 1, 2009. is denied. REMANDED Entitlement to an increased rating in excess of 10 percent for service-connected chronic lumbar spine sprain prior to November 16, 2015, and in excess of 20 percent thereafter, to include temporary total evaluations for convalescence following a January 3-4, 2011 discectomy and fusion at the level of L4 through L5 and L5 through S1, a November 5, 2012 anterior L3 through L4 lumbar diskectomy and fusion, and a claimed November 4, 2013 spinal surgery, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Effective August 1, 2007 to August 12, 2008, the Veteran’s service-connected instability of the left knee was mild with no more than a grade I Lachman and grade I anterior drawer with firm endpoints. 2. Effective August 1, 2007 to August 12, 2008, the Veteran’s service-connected left knee arthritis with limitation of motion, involved flexion limited to 110 degrees with pain, full extension, and no evidence of ankylosis. 3. Effective October 1, 2009, the Veteran’s service-connected left knee replacement residuals consisted of painful motion and limited flexion, but no evidence of limited extension, ankylosis, instability, subluxation, or nonunion of the tibia or fibula. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent for instability of the left knee effective August 1, 2007 to August 12, 2008 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). 2. The criteria for entitlement to an initial disability rating for left knee arthritis with limitation of motion, status post medial compartment knee replacement, in excess of 10 percent effective August 1, 2007 to August 12, 2008 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2017). 3. The criteria for entitlement to an initial disability rating in excess of 30 percent for left knee replacement effective October 1, 2009 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5055 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1987 through January 1990. This matter has been before the Board on several occasions. In relevant part, the above-listed issues were remanded in July 2017 for further development. The requested actions having been completed to the extent possible, and the claims having been readjudicated by the Regional Office (RO) in an August 2018 Supplemental Statement of the Case (SSOC), the matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet App. 268 (1998). The July 2017 remand noted that the issue of entitlement to a rating in excess of 10 percent for left knee instability was an initial increased rating claim as new and material evidence was received within one year of the January 2006 rating decision. However, on his December 2008 substantive appeal (Form 9), the Veteran expressly limited his claim to the period of August 1, 2007 through August 12, 2008. During the course of the appeal period, the Veteran made several applications for spinal fusion surgeries he asserted were related to his service-connected chronic spine strain. As the record contains evidence that the Veteran’s degenerative disc disease of the lumbar spine, and thus potentially his spinal fusions, is etiologically related to his service-connected chronic lumbar strain, the Board finds that the claims for temporary total disability ratings for spinal fusions in January 2011, November 2012, and November 2013 are part the issue of entitlement to an increased rating for a chronic lumbar spine strain. Moreover, the Regional Office has led the Veteran to believe that his claims for temporary total disability ratings are on appeal. See June 2011 Statement of the Case and April 2014 Correspondence. Accordingly, the issue has been recharacterized as it appears above to include the issues of entitlement to temporary total disability ratings. Duties to Notify and Assist The Veteran has contested the adequacy of his November 2007 VA examination. Specifically, he asserted that the VA examiner forced his knee during range of motion testing, and that his range of motion was much more limited than reflected in the examination. Additionally, the Veteran argued that the examiner could not properly assess where painful motion began due to his knee being forced to bend by the examiner. A presumption of regularity is applied to all manner of VA processes and procedures. Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed. Cir. 2004) (“The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.”); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (applying the presumption of regularity to VA examination). Clear evidence is required to rebut the presumption of regularity. Miley, 366 F.3d at 1347. Here, the Board finds that the presumption of regularity has not been rebutted. The VA examination report noted range of motion results consistent with range of motion testing conducted during the 2006 and 2015 VA examinations, which have not been contested. Moreover, as will be discussed further below, the Veteran’s private treatment records noted his range of motion to be “good” or “excellent”. Accordingly, the Veteran’s assertions that his range of motion was improperly measured in November 2007 do not demonstrate that the VA examiner’s report was inadequate in this regard. Neither the Veteran nor his representative has raised any other issues with the duty to notify, the duty to assist, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”). Increased Rating 1. Entitlement to an initial disability rating in excess of 10 percent for instability of the left knee effective August 1, 2007 to August 12, 2008 (formally rated as arthroscopic debridement with microfracture technique to posteromedial femoral condyle, status post-operative ACL reconstruction of the left knee). 2. Entitlement to an initial disability rating for left knee arthritis with limitation of motion, status post medial compartment knee replacement, in excess of 10 percent effective August 1, 2007 to August 12, 2008. The Veteran asserts that his left knee disability warrants increased disability ratings. He is currently in receipt of a 10 percent disability rating for left knee instability rated under Diagnostic Code 5257, applying to recurrent subluxation or lateral instability, and a 10 percent disability rating for arthritis with limitation of motion, rated under Diagnostic Code 5010-5260, applying to traumatic arthritis with limitation of flexion. The Veteran was afforded a VA examination to evaluate his left knee disabilities in October 2006. He reported that he had fallen three times during the past six months due to locking and instability, and that he used a knee brace while at work and iced nightly to relieve symptoms. He reported symptoms of instability, pain, stiffness, weakness, locking, inflammation, and flare-ups once a year. Flare-ups manifested as inability to run and limited mobility with recreational sports and ambulation. The Veteran did not report any deformity, subluxation, or effusion. Range of motion testing reflected active range of motion from zero to 120 degrees, with pain beginning at 110 degrees. There was no additional limitation of motion with passive range of motion or repetitive use testing. All ligamentous testing was normal, and the examiner noted the Veteran had a surgically absent meniscus with effusion, but no locking or dislocation. The Veteran was next afforded a VA examination to evaluate his left knee disabilities in November 2007. He reported symptoms of deformity, giving way, instability, pain, stiffness, weakness, weekly flare-ups, and weekly locking episodes. He did not report any dislocation, subluxation, effusion, or inflammation. During flare-ups it felt like his entire knee was on fire, he could not stand or walk, and pain was relieved with ice and painkillers. Physical evaluation revealed an antalgic gait with no evidence of abnormal weight bearing. He had active range of motion from zero to 120 degrees with pain at 120 degrees. His range of motion as the same with passive range of motion and repetitive use testing. The examiner noted there was evidence of crepitus and grinding, but no clicks, snaps, instability, patellar abnormality, or meniscus abnormality. The claims file contains extensive private treatment records reflecting treatment for the Veteran’s left knee disability. In August 2006, it was noted that his left knee had a slight varus alignment, intact anterior drawer, and a Lachman’s test reflecting three to four millimeters of slide with a good firm endpoint. His range of motion was full extension with flexion to 125 degrees, with some stiffness and tightness on full flexion. His extension seemed locked out and flexed down into more than about 40 or 50 degrees. A September 2006 treatment record noted that the Veteran had a two to three millimeter anterior drawer and Lachman’s tests with a firm feeling endpoint. In December 2006, his range of motion was zero to 125 degrees without collateral instability, but a hint of a Lachman and a hint of an anterior drawer. Private treatment records from March 2007 through December 2008 noted the Veteran had good range of motion with little or no instability. A July 2008 record noted the Veteran had full extension, with maybe a grade I Lachman and a grade I anterior drawer with no lateral instability. In consideration of the medical and lay evidence, the Board finds that a rating in excess of 10 percent under Diagnostic Codes 5010-5260 or a rating in excess of 10 percent under Diagnostic Code 5257 is not warranted. The Veteran is currently in receipt of a 10 percent disability rating under Diagnostic Code 5010-5260 for x-ray evidence of arthritis with painful limitation of flexion. The evidence throughout the entire period on appeal does not show compensable limitation of flexion to 45 degrees. The evidence shows that his flexion was, at worst, limited to 110 degrees with pain. Accordingly, only a 10 percent rating is warranted for painful but non-compensable limitation of motion. Moreover, the Veteran has had normal extension throughout the period on appeal; therefore, a separate rating based on limitation of extension is not warranted. The Veteran is also in receipt of a 10 percent disability rating under Diagnostic Code 5257 for mild recurrent subluxation or lateral instability. At no point during the period on appeal has the Veteran demonstrated moderate recurrent subluxation or lateral instability to warrant an increased, 20 percent rating. Ligamentous testing conducted during the October 2006 and November 2007 VA examinations reflected no objective medical evidence of instability. The majority of his private treatment records dated between August 1, 2007 and August 12, 2008 reflect little to no instability, with a three to four millimeter Lachman with a firm endpoint noted in August 2006, a two to three millimeter Lachman and anterior drawer with firm endpoint in September 2006, and a grade I Lachman and grade I anterior drawer with no lateral instability in July 2008. These measurements reflect only mild instability during the period on appeal. The Board notes that the Veteran has reported “extreme instability with the knee giving out” on his December 2008 Form 9. The Board is cognizant that objective medical evidence is not categorically more probative than lay evidence when it comes to determining the degree of left knee instability the Veteran has experienced during the appellate period. See English v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1464 *2. However, in this case, the Veteran’s lay testimony and statements describing severe left knee instability is contradicted by the evidence, and are not credible. This is not an instance where the Board is negating the probative value of the Veteran’s lay statements simply because they are unaccompanied by supporting contemporaneous medical evidence, which would be in contravention of Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). To the contrary, the medical evidence of record, to include the October 2006 and November 2007 VA examinations in the appellate period, are inconsistent with and contradict the severity of the Veteran’s left knee instability as presented in his lay statements. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (finding the Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Accordingly, these statements are afforded little evidentiary weight in this determination. The Board has considered whether the Veteran would be entitled to a separate compensable rating under any other diagnostic code applying to the knees. Diagnostic Code 5256 is not applicable as there is no evidence the Veteran’s left knee disability was ankylosed, or that his symptoms are severe enough to be analogous to ankylosis. The Board has considered whether the Veteran may be entitled to a separate compensable rating under Diagnostic Codes 5258 or 5259. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). Initially, the Board notes there is some confusion regarding whether he was diagnosed with a meniscus tear while on active duty service. See VA examinations dated October 2006 (noting a meniscus repair post-service); November 2007 (finding that the Veteran’s report of a meniscus repair in-service was unsubstantiated); November 2014 (noting that the Veteran underwent an arthroscopic surgery while on active duty and ruled out any meniscus tear); February 2015 (noting the Veteran tore his meniscus and underwent an arthroscopic repair in 1989); November 2015 (noting the Veteran reported a MRI on active duty showed a meniscus tear); and March 2018 (reflecting the Veteran gave a history of a meniscus tear in 1988). Service treatment records dated October 1988 reflect his MRI showed imaging consistent with meniscus tears. However, his March 1989 left knee exploratory arthroscopy found no evidence of a torn meniscus. Accordingly, there is no evidence the Veteran sustained a meniscus tear while on active duty service, and there is no evidence that he has a meniscus abnormality related to his active duty service. Additionally, none of the Veteran’s post-service treatment records reflect that any meniscus tear he sustained was related to his service-connected left knee instability or arthritis. As the Veteran does not have a meniscus tear related to his active duty service or service-connected left knee disabilities, Diagnostic Codes 5258 and 5259 are not applicable. The Board further finds that there is no basis for the assignment of ratings in excess of those upheld or awarded herein based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. The Court has held that “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). 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. While the record shows pain, limitation of standing, and limited ambulation, and the Veteran has reported severe pain, weakness, and fatigability with flare-ups, the evidence does not show that his symptoms and flare-ups produce functional loss that is manifested by adequate evidence of disabling pathology for higher ratings. Indeed, the Veteran did not experience additional limitation of motion after repetitive use testing and his disability rating is already based on the extent to which his symptoms reduce range of motion and impair stability. In light of the Veteran’s reported symptoms and the medical evidence, the Board finds that the Veteran is not entitled to any higher or separate ratings for his left knee disability. In summary, entitlement to increased ratings greater than 10 percent under Diagnostic Code 5257 for left knee instability and greater than 10 percent under Diagnostic Codes 5010-5260 for painful limitation of motion are not warranted. The benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application as there is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an initial disability rating in excess of 30 percent for residuals of left knee replacement effective October 1, 2009. The Veteran was awarded a temporary total evaluation from August 13, 2008 through September 30, 2009, and was awarded a 30 percent disability rating effective October 1, 2009 under Diagnostic Code 5055, applying to knee replacements. Diagnostic Code 5055 provides criteria for rating knee disabilities that require knee replacement surgery. Under those criteria, a 100 percent disability rating is assigned for one year following the surgery. Thereafter, the disability is to be rated as being no less than 30 percent disabling, but may be assigned a higher disability rating on the basis of demonstrated residual weakness, pain, or loss of motion consistent with the criteria under Diagnostic Codes 5256, 5261, or 5262. A 60 percent disability rating may also be assigned where the post-surgery evidence shows chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, the disability is to be rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5261 (limitation of extension) or 5262 (impairment of the tibia and fibula). 38 C.F.R. § 4.71a, Diagnostic Code 5055. The words “severe” referencing painful motion or weakness and “intermediate” degrees of disability as used in Diagnostic Code 5055 are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” Here, for the following reasons, the Board finds the severity of the Veteran’s painful motion or weakness is not “severe” such as warranted by a 60 percent rating. The Veteran was afforded a VA examination to evaluate the severity of his left knee disability in July 2010. He reported symptoms of giving way, instability, pain, stiffness, weakness, decreased speed of joint motion, and locking episodes. He did not report any deformity, incoordination, dislocation, subluxation, effusion, inflammation, or flare-ups of joint disease. The examiner noted the Veteran had a slow gait with a limp, but there was no evidence of abnormal weight bearing. Physical examination reflected bony joint enlargement, guarding of movement, crepitation, clicks, snaps, and grinding, but no mass behind the knee, instability, or abnormal tendons or bursae. Range of motion testing reflected flexion to 105 degrees with objective evidence of pain and full extension. There was no additional limitation of motion after repetitive use testing. In February 2015, the Veteran was afforded another VA examination to evaluate his left knee disability. He reported experiencing chronic pain with increasing weakness, but did not report any functional loss or functional impairment due to flare-ups. Range of motion testing reflected flexion to 130 degrees and extension to 10 degrees with pain noted on flexion. There was no noted tenderness to palpation of the left knee. After repetitive use testing, the Veteran’s flexion was further limited to 120 degrees due to pain, weakness, fatigability, or incoordination. There was no additional limitation of extension. Muscle strength testing was normal with no evidence of muscle atrophy. There was no evidence of ankylosis, and all stability testing was normal. The Veteran did not report using any assistive devices such as knee braces. The Veteran was afforded a VA examination to evaluate his left knee disability in November 2015. He reported daily flare-ups when weight bearing a lot, during which he had to sit to remove the weight from his knee. He also reported functional loss of being unable to play football, baseball, coach sports, duck hunt, and hike. The Veteran reported being limited to low impact activities. Range of motion testing resulted in flexion to 130 degrees and full extension with pain noted on flexion. There was evidence of pain with weight bearing and tenderness to palpation along the lateral joint line. He was able to complete repetitive use testing without evidence of additional limitation of motion. The examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and flare ups. However, it would be mere speculation to assign additional loss of motion due to pain, weakness, fatigability, and incoordination after repetitive use over time or during flare-ups, because the Veteran was not being examined after repetitive use over time or during a flare up. Muscle strength testing was normal without evidence of muscle atrophy. There was no evidence of ankylosis and all stability testing was normal. The Veteran reported regular use of a knee brace during activity. The Veteran was afforded a final VA examination to evaluate his left knee disability in March 2018. He reported constant sharp pain and a dull burning sensation. Flare-ups produced increased burning pain lasting approximately 20 minutes. His pain was aggravated by kneeling, bending, prolonged walking, and he avoided going up and down stairs and squatting. His knee buckled occasionally, and swelled following prolonged standing and walking. Range of motion testing reflected flexion to 100 degrees and full extension, with pain noted on all ranges of motion. There was evidence of pain with weight bearing, but the examiner noted it was not medically appropriate to test the Veteran’s passive range of motion or identify evidence of pain with non-weightbearing. The examiner noted the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. However, the examiner could not provide an opinion as to the degree of functional loss caused by pain, weakness, fatigability, incoordination after repetitive use over time or during flare-ups, because the range of motion exam was done three times with pain, but it would be mere speculation to express any additional functional loss in degrees because the Veteran was not examined during a flare-up or after repeated use over time. Muscle strength testing was normal without evidence of muscle atrophy. There was no evidence of ankylosis, and all ligament stability testing was normal. The Veteran did not report using any assistive devices such as knee braces. VA treatment records reflect the Veteran continued to report left knee pain and buckling. An April 2016 VA treatment record noted the Veteran had rigidity in the knees, but did not record the results of range of motion testing. The Veteran’s left knee disability has never manifested as ankylosis, or symptoms severe enough to be analogous to ankylosis, to warrant an increased 40 percent rating under Diagnostic Code 5256 for unfavorable ankylosis in flexion between 10 and 20 degrees. None of his private treatment records, VA treatment records, or VA examinations indicate he has ever been diagnosed with ankylosis. The Veteran also would not warrant a rating in excess of 30 percent under Diagnostic Code 5261, applying to limitation of extension. To warrant an increased, 40 percent, rating, the Veteran would have to demonstrate extension limited to 30 degrees. The February 2015 VA examination noted that the Veteran’s flexion was limited to 10 degrees, with no additional loss of motion following repetitive use testing. Extension limited to 10 degrees warrants a 10 percent disability rating under Diagnostic Code 5261. The July 2010, November 2015, and March 2018 VA examinations noted the Veteran had full extension with pain, with no additional loss of motion following repetitive use testing. Accordingly, the Veteran’s mild limitation of extension does not warrant an increased rating greater than 30 percent. Finally, Diagnostic Code 5262 applying to malunion of the tibia or fibula does not apply, because there is no evidence, and the Veteran does not argue, that his left knee disability manifests as malunion or nonunion of the tibia or fibula. To warrant an increased rating of 40 percent under Diagnostic Code 5262, the Veteran’s left knee replacement would have to manifest as nonunion of the tibia or fibula with loose motion requiring bracing. As there is no evidence of any nonunion, or even malunion, of the tibia or fibula, an increased rating greater than 30 percent is not warranted. As there is no evidence of ankylosis, nonunion of the tibia or fibula, or limitation of extension limited to 30 degrees, an increased rating greater than 30 percent for left knee replacement is not warranted under any analogous Diagnostic Code. The Board has also considered whether the Veteran’s left knee disability could be better rated under another Diagnostic Code applying to the knees. However, the Veteran does not have limitation of flexion that would warrant even a compensable rating under Diagnostic Code 5260; and there has been no evidence of any subluxation or lateral instability to warrant a compensable rating under Diagnostic Code 5257. The residual symptoms he has following his left knee replacement are best rated under Diagnostic Code 5055. As the Veteran’s left knee replacement does not warrant a greater than 30 percent rating under analogous Diagnostic Codes 5256, 5261, or 5262, it cannot be said that the Veteran’s left knee replacement manifests as severe painful motion or weakness in the affected extremity to warrant a 60 percent rating under Diagnostic Code 5055. As noted above, the Veteran’s motion was limited to, at most, 100 degrees of flexion with pain and extension limited, at most, to 10 degrees with pain. The limitation in the Veteran’s flexion and extension would not warrant a rating higher than 10 percent if rated under the appropriate codes. It also cannot be said that the Veteran’s residuals manifested as extreme weakness, as all muscle strength testing was consistently normal and there was no evidence of muscle atrophy. Additionally, all ligamentous stability testing was normal, and at no point was there evidence of ankylosis or malunion or nonunion of the tibia and fibula. While the Veteran reported using assistive devices in February 2015, such use is consistent with the current 30 percent rating that contemplates such functional limitations after a knee replacement. For these reasons, the Board finds that a higher rating for a left knee replacement is not warranted under Diagnostic Code 5055. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 10 percent for service-connected chronic lumbar spine sprain prior to November 16, 2015, and in excess of 20 percent thereafter, to include temporary total evaluations for convalescence following a January 3-4, 2011 discectomy and fusion at the level of L4 through L5 and L5 through S1, a November 5, 2012 anterior L3 through L4 lumbar diskectomy and fusion, and a claimed November 4, 2013 spinal surgery, is remanded. As the Board has found that the Veteran’s claims for temporary total evaluations for convalescence are part of his claim for an increased rating for a chronic lumbar strain, remand is required for further development. Review of the claims file reflects that the Veteran submitted evidence he underwent spinal fusion surgery on January 3 and 4, 2011 and November 5, 2012, but he has not submitted any evidence that he underwent a third fusion on November 4, 2013, as he claimed. The Veteran should be afforded an opportunity to submit evidence pertaining to the November 4, 2013 surgery. The Veteran was service-connected for chronic lumbar strain. In approximately 2009-10, he was diagnosed with degenerative disc disease and degenerative joint disease of the lumbar spine. A VA examiner in 2010 concluded it was less likely as not that the service-connected lumbar strain and history of back injury was related to the degenerative disc disease of the spine, as it had been 20 years since service and the Veteran had a history of working around heavy equipment. A VA examiner in 2014 also provided a negative opinion. The Board remanded this claim, and in 2015, a VA examiner opined: The onset of the development of his DDD/DJD was the occurrence of his lower back injuries in service which were episodic and never fully healed. Once the seeds of injury were planted in his back he was more susceptible to further injury over time and the normal aging process. The DDD/DJD was a natural progression of his service connected injuries over time. Regardless, it appears that the Veteran has sustained industrial and/or vehicular injuries that may have precipitated some of the surgeries. Therefore, on remand, an opinion should be obtained as to whether it is at least as likely as not that the Veteran’s January 3 and 4, 2011 spinal fusion, November 5, 2012 spinal fusion, and November 4, 2013 claimed spinal fusion (if evidence is submitted substantiating the claim that the Veteran underwent a third surgery – it is possible he confused 2012 and 2013 when he later reported a third surgery) were surgeries for a service-connected condition. If any of the surgeries are determined to be surgery for a service-connected condition, the examiner should provide an opinion on the amount of time required for the Veteran’s recovery (return to a healthy or normal state). 2. Entitlement to a TDIU is remanded. The determination of the claim for entitlement to an increased rating for a chronic lumbar spine strain, to include temporary total evaluations for convalescence following surgical procedures, may affect the outcome of the claim for entitlement to a TIDU. Accordingly, the issues are intertwined, and the claim for entitlement to an increased rating for a TDIU cannot be decided until the other issue has been considered. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2018 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for his claimed November 4, 2013 spinal surgery. Make two requests for the authorized records regarding the November 4, 2013 spinal surgery, unless it is clear after the first request that a second request would be futile. 3. DO NOT SCHEDULE THE FOLLOWING until all available records are obtained for the claimed third surgery in 2013 or, in the alternative, the Veteran indicates he was mistaken and there was no surgery in 2013. 4. Obtain a VA medical opinion from a spinal surgeon due to the medical complexity of this case to determine whether the Veteran’s January 2011, November 2012, and November 2013 (if substantiated) surgeries were surgery for service-connected disabilities. The examiner should specifically note the conflicting 2010, 2014, and 2015 VA nexus opinions as to whether the Veteran’s degenerative disc disease is etiologically related to his service-connected chronic lumbar spine strain or his in-service back injuries. The examiner should also discuss the nature and circumstances precipitating each surgery (i.e., the role, if any, that post-service work injuries and/or motor vehicle accidents played in the need for surgical intervention). Only if it is determined that any of the Veteran’s spinal surgeries constituted surgery for a service-connected condition, the examiner should provide an opinion as to the amount of time required for the Veteran’s recovery (return to a healthy or normal state). 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel