Citation Nr: 18151916 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 10-22 633A DATE: November 20, 2018 ORDER Entitlement to a rating in excess of 20 percent for mechanical back pain due to chronic muscle strain is denied. REMANDED Entitlement to service connection for a right knee disability, to include as secondary to the service-connected bilateral ankle disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s service-connected mechanical back pain due to chronic muscle strain manifested, at worst, as forward flexion to 60 degrees with total range of motion to 210 degrees. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for mechanical back pain due to chronic muscle strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 1995 to January 2000 and from February 2002 to March 2002. In the Veteran’s September 2018 Informal Hearing Presentation, his representative stated that the Veteran took exception to and preserved for appeal all failures to discharge the duty to assist. Also, his representative specifically stated that the Board failed to consider whether an increased evaluation is warranted. However, this statement is inconsistent with the procedural history of this claim. The Veteran’s mechanical back pain due to chronic muscle strain disability has been considered for an increased evaluation throughout the appeal period. Ultimately, that issue is discussed in this decision. Other than that specific statement, no other specific errors were described. Neither the Veteran nor his representative have raised any other issue with the duty to notify or duty to assist. 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.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to a rating in excess of 20 percent for mechanical back pain due to chronic muscle strain A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran seeks entitlement to a disability rating in excess of 20 percent for his service-connected mechanical back pain due to chronic muscle strain. He is rated under Diagnostic Code 5237. Conditions of the spine are to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, a 20 percent rating is warranted 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 warranted when the forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. To receive a rating of 50 or 100 percent, a Veteran must have unfavorable ankylosis of the entire thoracolumbar spine or the entire spine, respectively. 38 C.F.R. § 4.71a. VA considers forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, bilaterally, normal ranges of motion of the thoracolumbar spine. 38 C.F.R. § 4.71a at Note 2 and Plate V. Ankylosis is the complete immobility of a joint. Lewis v. Derwinski, 3 Vet. App. 259 (1992). The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula. 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; 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 criteria.”). The Veteran was afforded several VA examinations in July 2012, May 2017, and June 2018. The Board notes that the Veteran underwent an L4-S1 spinal fusion in 2015. At worst, the Veteran’s forward flexion was to 60 degrees with pain at 60 degrees at his July 2012 VA examination. His total range of motion was 210 degrees. His extension was normal at 30 degrees with pain at 30 degrees. This was prior to the Veteran’s spinal fusion. The July 2012 examiner found the Veteran to have functional loss due to less movement than normal and pain on movement. The Veteran did not have localized tenderness or pain to palpation, nor did he have guarding, muscle spasm, or muscle atrophy. His muscle strength was normal at 5/5 for bilateral hip flexion, bilateral knee flexion, and bilateral great toe dorsiflexion. His right ankle plantar flexion and right ankle dorsiflexion were also normal at 5/5. His left ankle plantar flexion and dorsiflexion were 4/5, indicating some weakness. The Veteran did not have radiculopathy, intervertebral disc syndrome, or other neurologic abnormalities. The examiner noted that the Veteran constantly wore a brace, but it was for his left lower leg, ankle, and foot to sustain the left ankle and help with the drop foot on the left side. The examiner stated that the Veteran’s abnormal gait and left ankle weakness as due to a left ankle injury. The examiner found degenerative changes of the thoracic spine along the thoracic margin. At his May 2017 VA examination, the Veteran had forward flexion to 70 degrees with total range of motion to 220 degrees. The examiner noted pain on examination, but found that it does not result in or cause functional loss. The examiner also found evidence of pain with weight bearing and localized tenderness or pain on palpation of the joints for his lower lumbar area. The Veteran was able to perform repetitive use testing without additional range of motion loss, but pain limits his functional ability with repeated use over a period of time. The Veteran reported that since his spinal fusion surgery, his lumbar condition has improved. He described flare-ups related to prolonged driving, which occur two-to-three times per week. The examiner found that the Veteran has muscle spasms that do not result in abnormal gait, but does not have guarding, muscle atrophy, radiculopathy, or ankylosis. His muscle strength was normal at 5/5 for all areas. Additionally, the examiner did not find intervertebral disc syndrome or any other neurologic abnormalities. The Veteran reported occasional use of a cane around once a month, after flare-ups due to installing tile. The examiner found mild degenerative changes in the lumbar spine with disc bulges, but no significant interval change. At his June 2018 VA examination, the Veteran had forward flexion to 90 degrees with a total range of motion to 240 degrees. The examiner found the Veteran to have normal range of motion with pain noted on examination, but no evidence of localized tenderness or pain on palpation, or evidence of pain with weight bearing. The Veteran reported flare-ups when lifting heavy objects that require rest for a few hours to reduce the pain and causes difficulty with bending. The Veteran described pain, but it did not contribute to any loss of range of motion. The examiner did not find muscle spasm, guarding, muscle atrophy, radiculopathy, or ankylosis. Additionally, the examiner did not find intervertebral disc syndrome or any other neurologic abnormalities. The Veteran denied the use of assistive devices. The examiner found minor space narrowing at L4-5 due to minor disc degeneration. When considering the functional loss described by the Veteran, the medical and lay evidence of record does not show that his functional loss causes his back disability to be more closely described by the 40 percent criteria. Even when considering pain and functional loss, his forward flexion was at worst 60 degrees with pain, and at best normal with pain. The record does not show that he has functional loss due to the factors set forth in 38 C.F.R. §§ 4.40 and 4.45 such that his forward flexion is limited to 30 degrees or results in ankylosis. Forward flexion to 60 degrees falls squarely within the 20 percent criteria. Reviewing the evidence, the Board finds that the overall disability picture for the Veteran’s mechanical back pain due to chronic muscle strain does not more closely approximate a 40 percent rating under the applicable Diagnostic Code. 38 C.F.R. § 4.7. Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3. Additionally, the evidence of record does not show that the Veteran has radiculopathy or other neurologic abnormalities that would require separate ratings. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability, to include as secondary to the service-connected bilateral ankle disability is remanded. In May 2015, the Board denied service connection for a right knee disability. The Veteran appealed the denial to the U. S. Court of Appeals for Veterans Claims (Court), and in October 2015, the parties agreed to a Joint Motion for Remand (JMR). To comply with the JMR, the Board remanded the right knee disability claim in December 2015, March 2017, and January 2018. In the December 2015 remand, an opinion regarding whether the Veteran’s right knee disability was aggravated by his service-connected bilateral ankle disability was requested. In the March 2017 remand, the Board found that the examiner failed to address whether the Veteran’s falls due to his ankle disabilities harmed his knee and whether bilateral patellofemoral syndrome was consistent with falling down and requested another opinion. In the January 2018 remand, the Board noted that the May 2017 examiner provided an opinion as to whether the Veteran’s falls caused his knee disability, but the examiner did not address whether falls due to his service-connected ankle disabilities aggravated his knee disability. Unfortunately, the claim for entitlement to service connection for a right knee disability, to include as secondary to the service-connected bilateral ankle disability must be remanded again. In a June 2018 VA examination, the examiner stated that there was no objective evidence to warrant a diagnosis for a right knee condition. Due to a lack of diagnosis, the examiner did not give an opinion regarding the right knee, as directed by the January 2018 Remand. Despite the examiner’s finding that no disability existed, the Veteran has had a diagnosis of a knee disability during the appeal period. In February 2010, a VA examiner diagnosed the Veteran with right knee patellofemoral syndrome. Due to the Veteran having a disability during the appeal period, the examiner is required to comply with the remand directives and give an opinion on the Veteran’s right knee disability. The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The standard is whether a disability exists at the time the claim was filed. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). While further delay is regrettable, the Board finds that additional development is required prior to adjudicating the Veteran’s claim. See 38 C.F.R. § 19.9 (2017). A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). As the January 2018 remand orders were not substantially complied with, a remand is warranted. 2. Entitlement to a TDIU is remanded. The January 2018 Remand directed the RO to provide the Veteran with a VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability and request that he complete and return it. To date, the Veteran has not provided the RO with a completed VA Form 21-8940. Since the Veteran contends that his right knee contributes to his claimed unemployability and the right knee claim is already being remanded for other reasons, the Veteran should be afforded another opportunity to provide a completed VA Form 21-8940. The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to a qualified clinician to obtain a supplemental opinion. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must opine as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right knee disability was proximately due to or the result of his service-connected ankle disabilities, including whether falling down due to his ankle disabilities caused the right knee disability. b. Whether it is at least as likely as not that the Veteran’s right knee disability was aggravated beyond its natural progression by his service-connected ankle disabilities, including whether falling down due to his ankle disabilities aggravated his right knee disability. A finding that the Veteran’s right knee condition has resolved does not negate the need for the requested opinion. The examiner is advised that the Board has conceded that he has fallen down due to his ankle disabilities. The examiner is advised that to be adequate, a VA opinion must provide separate rationales for both causation and aggravation. Atencio v. O’Rourke, 30 Vet. App. 74 (2018). The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Request that the Veteran complete and return a VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability. Then, develop the TDIU issue if the proper information is provided. 3. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Fowler, Associate Counsel