Citation Nr: 18153522 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-39 635 DATE: November 28, 2018 ORDER A disability rating greater than 20 percent for recurrent lumbar strain is denied. A disability rating greater than 30 percent for residuals of right knee surgery is denied. A disability rating greater than 30 percent for recurrent synovitis of the left ankle is denied. REMANDED The issue of entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Recurrent lumbar strain has been manifested by forward flexion of the thoracolumbar spine beyond 30 degrees. Ankylosis, incapacitating episodes, and doctor-prescribed bed rest are not shown. 2. Residuals of right knee surgery have been manifested by extension limited to 25 degrees and pain; limited extension to 30 degrees or worse has not been demonstrated. 3. Recurrent synovitis of the left ankle has been manifested by moderate limitation of motion and pain with weight-bearing; neither ankylosis nor marked limitation of motion of the left ankle has been demonstrated. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for recurrent lumbar strain are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2018). 2. The criteria for a disability rating greater than 30 percent for residuals of right knee surgery are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Table II, Diagnostic Code 5261 (2018). 3. The criteria for a disability rating greater than 10 percent for recurrent synovitis of left ankle are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from March 1977 to April 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2016). Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Here, the Veteran filed claims for increased ratings in June 2013. Recurrent Lumbar Strain The Veteran’s recurrent lumbar strain is assigned a 20 percent rating under Diagnostic Code 5237. Spinal disabilities are primarily evaluated under a general rating formula (which provides the criteria for rating orthopedic disability, and authorizes separate evaluations of its chronic neurologic manifestations). The current 20 percent evaluation contemplates pain on motion. Also, it is consistent with 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 higher evaluation of 40 percent may be assigned if there is the functional equivalent of forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability evaluation is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2018). Alternatively, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either based on incapacitating episodes over the past 12 months, or under the general rating formula for spinal disabilities—whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. A higher evaluation of 40 percent rating may be assigned if there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. In general, the rating criteria for spinal disabilities take into account pain and other symptoms. Pain is often the primary factor limiting motion and is almost always present when there is muscle spasm. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurological sections of the rating schedule. Schedule for Rating Disabilities; The Spine, 68 Fed. Reg. 51,454 (Aug. 27, 2003) (See also 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243). The October 2013 VA examination report reveals that the Veteran reports constant low back pain that is localized. Records show that after twenty minutes on the job, the Veteran begins to have low back spasms. Climbing up a ladder is painful, and the Veteran reportedly uses icy hot patches. Physical therapy has not helped much. Flare-us occur daily, especially when doing more physical work or walking. His pain level most days with activity is Level 8 on a scale of 10, and Level 4 on a scale of 10 on days when he does nothing. Examination in October 2013 reveals that muscle spasm is severe enough to be responsible for abnormal gait. Ranges of motion of the thoracolumbar spine are to 90 degrees on flexion; to 30 degrees on extension; to 25 degrees on bending to the right; to 25 degrees on bending to the left, with pain from 20 degrees; to 30 degrees on rotation to the right, with pain from 25 degrees; and to 30 degrees on rotation to the left, with pain from 25 degrees. There were additional decreases in ranges of motion following repetitive-use testing—that is, 80 degrees on flexion, 25 degrees on extension, 20 degrees on bending to the right and to the left, and 25 degrees on rotation to the right and to the left. Contributing factors of disability include less movement than normal, and pain on movement. Muscle strength testing was normal, and there was no atrophy. Deep tendon reflexes and sensory examination were normal. Straight leg raising was negative. The Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. Social Security records, received in August 2016, show a primary diagnosis of disorders of the back, discogenic and degenerative. During the August 2017 VA examination, the Veteran reported that his lumbar strain was “slowly getting worse” since last examined. He reported pain radiating down the back of both thighs, all the way to his big toes with tingling. He reported numbness in his toes, and reported flare-ups; and reported that twisting and bending over made his back pain worse. Ranges of motion of the thoracolumbar spine in August 2017 were to 70 degrees on flexion, to 20 degrees on extension, to 20 degrees on bending to the right and bending to the left, and to 20 degrees on rotation to the right and to the left. Pain was noted on active ranges of motion in flexion, bending, and rotation. There was no evidence of pain with weightbearing, and no additional loss of function or ranges of motion following repetitive-use testing. Muscle strength testing was normal, and there was no atrophy. Deep tendon reflexes and sensory examination were normal. Straight leg raising was negative. The Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. There was no ankylosis of the spine. In this case, throughout the rating period, the evidence shows that the Veteran can flex his thoracolumbar spine beyond 30 degrees. He, therefore, does not meet the criteria for a disability rating greater than 20 percent under the general rating formula. 38 C.F.R. § 4.7. Higher evaluations may be assigned for ankylosis, but there is no evidence that the Veteran has ankylosis in his thoracolumbar spine. Nor is there evidence of doctor-prescribed bed rest or incapacitating episodes having a total duration of at least four weeks during any past 12 months to warrant an increased rating. Accordingly, under the general rating formula, the orthopedic component of the Veteran’s recurrent lumbar strain warrants no more than the currently assigned 20 percent evaluation. While the Veteran indicated that his recurrent lumbar strain has slowly worsened, the objective findings consistently fail to show that his disability meets the criteria for an increased evaluation. In this regard, the Board has considered the Court’s holding in Deluca. Examiners have acknowledged that ranges of motion were additionally limited following repetitive testing; and that pain is the primary factor impairing function. However, such impaired function still does not satisfy the criteria for an increased rating for a disability of the spine. Thus, even with consideration of increased pain during flare-ups, the rating criteria applied take into account pain and other symptoms. The Veteran’s reported symptoms have been considered, and they support the currently assigned evaluation. The evidence does not show that the criteria for an increased disability rating are approximated. The evidence does not indicate that the criteria for a 40 percent rating has been met on active or passive motion, or while weightbearing and non-weightbearing. See Correia, 28 Vet. App. at 170. For these reasons, an increased rating is not warranted based on functional loss due to pain and other symptoms as contemplated by Deluca. Thus, the weight of the evidence is against the grant of a disability rating greater than 20 percent for the Veteran’s recurrent lumbar strain, based on orthopedic findings. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2017). In addition, the Veteran has described some sensory deficits. The Board finds the Veteran’s statements to be credible. Mild incomplete paralysis of the sciatic nerve of the lower extremity warrants a 10 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520. In this case, the evidence is against a separate disability rating for associated mild, incomplete paralysis of the sciatic nerve. There have been no reports of loss of reflexes or muscle atrophy. Neurological examinations in October 2013 and in August 2017 were normal. The Veteran reported that he took medication for peripheral neuropathy with history of diabetes mellitus; and that no back issues were discussed with his primary physician. The evidence indicates that neurological deficits have not been associated with lumbar spine disability. Residuals of Right Knee Surgery The Veteran underwent right knee surgery during service after injuring the knee while playing basketball. Arthroscopic examination at the time revealed the presence of a grade II medial collateral ligament tear, a partial tear of the anterior cruciate ligament, and a lateral tracking patella. Partial debridement of the anterior cruciate ligament was accomplished, as well as the lateral release. A Medical Board report included diagnoses of right anterior cruciate ligament tear, partial, healing; fibrous ankylosis, right knee, improving; and lateral riding patella, surgically treated. Service connection was granted for residuals of right knee surgery. VA records, dated in October 2001, show that the Veteran underwent additional right knee surgery. He also was hospitalized in July 2008 for right knee cellulitis. X-rays taken in March 2009 revealed a right knee joint intact without sclerosis or osteophytes. There was no diffusion or patellar subluxation. Effective August 2009, the RO assigned a 30 percent evaluation under Diagnostic Code 5261 based on limited extension. The current 30 percent evaluation contemplates pain on motion. Also, it is consistent with limitation of extension to 20 degrees. Higher evaluations may be assigned if there is the functional equivalent of limitation of extension to 30 degrees or more. Moreover, separate evaluations may be assigned for other knee disorders. See 38 C.F.R. § 4.71a, DCs 5256-63. An October 2013 VA examination report reveals that ranges of motion of the Veteran’s right knee were to 125 degrees on flexion, and to 5 degrees on extension. Pain was noted at the extreme of flexion. The examiner explained that the ranges of motion were normal for this Veteran due to body habitus (obese). There was additional limitation in ranges of motion and functional loss following repetitive use testing. Contributing factors of disability included less movement than normal, and pain on movement. No meniscal conditions were identified. The Veteran also reported pain and tenderness under the right knee cap, which slowly increased over the last five years. He reported hearing a “grinding” noise with stepping up onto stairs, and reported no additional surgery. The examiner diagnosed osteoarthritis of the right knee, and a history of patellar cartilage flap tear repair in 2008. During a May 2016 VA examination, the Veteran reported that his right knee hurts all the time, regardless of whether he was “on it or not.” He reported that the knee was swollen, with warmth in the joint. The Veteran reported having flare-ups caused by stairs and increased activity, and that the pain was at Level 9 on a scale of 10. Examination in May 2016 reveals that ranges of motion of the Veteran’s right knee were to 120 degrees on flexion, and to 25 degrees on extension. The examiner explained that the range of motion itself contributed to functional loss because the Veteran could not straighten out the right leg, and he walked with a limp. Pain was noted on flexion and extension, and with weight-bearing; and pain caused functional loss. There was objective evidence of localized tenderness or pain on palpation of the joint. Joint stability testing was normal, and there was no finding of ankylosis. The August 2017 VA examination report reveals complaints of flare-ups of right knee pain when going up stairs, and that the Veteran had to limit his time standing or walking to no more than thirty minutes. Examination in August 2017 reveals that ranges of motion of the Veteran’s right knee were to 140 degrees on flexion, and to 20 degrees on extension. Pain was noted on examination in flexion, and pain caused functional loss. There was objective evidence of localized tenderness on the patella joint line with palpation. There was no additional functional loss, or range of motion decrease following repetitive-use testing of the right knee. Joint stability testing was normal, and there was no finding of ankylosis. Here, there is no indication that the Veteran has limitation of motion of the right knee that meets or approximates the criteria for a disability rating greater than 30 percent under Diagnostic Code 5261. Relative to functional loss due to pain, fatigue, incoordination, or the like, the May 2016 examiner confirmed that pain causes functional loss; and that the Veteran cannot straighten his leg, and he limps. The Board finds that the currently assigned 30 percent evaluation adequately compensates the Veteran’s symptoms of pain that are limiting his extension of the right knee. The rating is sufficient. As his symptoms do not more nearly approximate those contemplated by higher ratings for limitation of motion or for other disabilities of the knee, no more than the currently assigned 30 percent disability rating is warranted for limitation of extension of the right knee. The remaining diagnostic codes for knee disabilities are not applicable. While the Veteran has complained of balance problems and limping, all joint stability tests were normal. There is no evidence or history of recurrent patellar subluxation or dislocation. Ultimately, the Board places the most probative weight on the results of objective physical examination by medical professionals, which fail to show any evidence of recurrent subluxation or instability; and is against the assignment of a separate evaluation for instability under Diagnostic Code 5257. Moreover, no examiner has found current evidence of meniscus complications resulting in additional functional impairment to warrant a separate, compensable rating for the right knee on the basis of meniscus pathology. 38 C.F.R. § 4.71, Diagnostic Codes 5258 or 5259. Lastly, a separate rating has already been awarded for the scar residual on the Veteran’s right knee; and there is no showing that the scar residual is tender or painful, or causes any functional impairment to warrant a compensable rating on the basis of scars. 38 C.F.R. § 4.118, Diagnostic Codes 7804 or 7805. Recurrent Synovitis of Left Ankle Service connection has been established for recurrent synovitis of the left ankle as related to the service-connected residuals of right knee surgery. The RO has assigned a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5271, based on moderate limited motion in plantar flexion. The standard ranges of motion of the ankle are 20 degrees dorsiflexion and 45 degrees plantar flexion. 38 C.F.R. § 4.71, Plate II. Moderate limitation of motion of an ankle warrants a 10 percent evaluation. A 20 percent rating requires marked limitation of motion, and is the maximum rating under this diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Alternatively, higher evaluations are assigned for impairment of the tibia and fibula with marked ankle disability under Diagnostic Code 5262; or for ankylosis of the ankle under Diagnostic Code 5270. During the October 2013 VA examination, the Veteran reported limited motion and weakness and swelling in his left ankle. He reported that his gait was “a lot slower” because of pain associated with walking. He reportedly did not wear an ankle brace for extra support, and standing for prolonged periods of time and excess walking caused pain. Flare-ups occurred daily and lasted until the Veteran elevated his leg; and pain was at Levels 8 or 9, on a scale of 10. On examination, ranges of motion of the left ankle were to 45 degrees or greater on plantar flexion; and to 20 degrees or greater on dorsiflexion. Although there was no objective evidence of painful motion, the examiner did note contributing factors of disability as including less movement than normal. Joint stability testing was normal, and there was no finding of ankylosis. The May 2016 VA examination report reveals that the Veteran performed repetitive-use testing; and that ranges of motion of the left ankle were to 45 degrees on plantar flexion, and to 10 degrees on dorsiflexion. Pain was noted both in dorsiflexion and plantar flexion, and on weight-bearing; pain did not result in, or cause functional loss. Tenderness was noted on palpation of the frontal area and below the bilateral malleoli. Muscle strength testing was normal; and there was no ankylosis of the ankle, subtalar, or tarsal joint. Although the examiner suspected instability or dislocation, both anterior drawer test and talar tilt test were negative. During the August 2017 VA examination, the Veteran reported that the left ankle was increasingly painful and it twisted easily. The pain was constant, and worse with activity. The Veteran performed repetitive-use testing; ranges of motion of the left ankle were to 45 degrees on plantar flexion, and to 20 degrees on dorsiflexion. Pain was not noted on examination. There was no objective evidence of pain with weight-bearing. The examiner again suspected instability or dislocation; however, both anterior drawer test and talar tilt test were negative. There was no laxity exhibited in the left ankle, in comparison to right ankle. In this case, the evidence shows that recurrent synovitis of left ankle has been manifested primarily by objective evidence of decreased dorsiflexion of left ankle, and complaints of pain with weight-bearing. There has been no evidence of marked ankle disability; the evidence is equivalent to no more than moderate limited motion of left ankle. The Board acknowledges the Veteran’s complaints of pain with prolonged standing or walking; however, the overall severity, frequency, and duration of the Veteran’s symptoms have not been on par with the level of severity contemplated by a disability rating greater than 10 percent under Diagnostic Code 5271 or under alternative diagnostic codes. Hence, the criteria for a disability rating greater than 10 percent for recurrent synovitis of left ankle are not met or nearly approximated. REASONS FOR REMAND PTSD The Veteran asserts that the stressors that triggered his claimed PTSD include incidents in August 1979 in which he was physically beaten, sleep deprived, and threatened continuously while he was in SERE (Survival, Evasion, Resistance, and Escape) training; and locked in a cement box with a wooden front opening, and often “hooded.” The Veteran did witness other students being buckled to a board and water poured on their face. Another stressor incident described by the Veteran included his participation in a dangerous mission aboard an aircraft in 1979 in search of Vietnamese boat refugees, in which a volcano pelted the aircraft and broke the cockpit glass, and put the aircraft in danger of crashing. The Veteran’s DD Form 214 corroborates the Veteran’s participation in SERE training for nine days in August 1979. VA records show that the Veteran’s screening test for PTSD was positive in October 2011. But a VA psychiatrist in October 2011 was uncertain whether military training counted as a “trauma.” In December 2012, the Veteran reported that he had buried the torture events for years until his mental health degraded and he was ordered to seek psychiatric counseling. He then reported that he had felt like a prisoner-of-war. His in-service performance evaluations reportedly reflect “erratic performance” in the years following his SERE training; however, these records are not associated with the Veteran’s claims file. A psychological evaluation in November 2013 reveals that the Veteran reported having several close encounters with death in active service, including riding in a plane that almost crashed, as well as Special Forces training in enhanced interrogation techniques—which the Veteran found traumatic. While the Veteran reported hypervigilance related to traumatic stressors involving his personal safety, he did not endorse symptoms regarding “reliving” the trauma. A November 2015 VA examiner found that the Veteran did not meet diagnostic criteria for PTSD under DSM-5 criteria. Most of the Veteran’s occupational and social impairment was attributable to personality disorder, due to symptoms of difficulty forming and maintaining effective work and social relationships. A lesser degree of impairment was attributable to anxiety and depressive symptoms, with symptoms fairly well-controlled with medication. The Veteran had not exhibited visible psychological distress or physiological arousal when telling of stressful incidents in SERE training. Regarding the aircraft trauma, the Veteran reported making it back to Guam; the aircraft did not crash. The Veteran had denied mental health treatment in active service; and while the Veteran had been treated for almost two decades at VA, he had not been diagnosed with PTSD. The November 2015 VA examiner opined that the Veteran’s SERE training stressor occurred during training and was not related to the Veteran’s fear of hostile military or terrorist activity; and that the aircraft stressor was not related to combat or to fear of hostile military or terrorist activity. The examiner indicated that neither of these stressors related to personal assault, and opined that the Veteran did not meet DSM-5 criteria for a diagnosis of PTSD. The examiner found that the Veteran did not report, endorse, or exhibit any mental health symptoms consistent with PTSD related to his claimed stressors. Regarding claims based on personal assault in service, VA regulations state, in pertinent part, as follows: If a [PTSD] claim is based on in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran’s service records, or evidence of behavior changes, may constitute credible supporting evidence of a stressor, and without allowing him or her the opportunity to furnish this type of evidence, or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304 (f)(5). Under these circumstances, given the November 2015 examiner’s uncertainty as to the Veteran’s experiencing trauma per se, the Veteran’s service personnel records—including performance evaluations, training documents, etc.—should be associated with the Veteran’s claims file. Records in the claims file already show evidence of longstanding depression and anxiety. An examination is needed to determine the likelihood that a physical assault in SERE training occurred; and, if so, whether the Veteran currently has PTSD under DSM-5. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4). TDIU The Veteran reported that he worked full-time until June 2013, and that he became too disabled to work in January 2014. He reportedly was no longer able to stand for long periods of time, or to walk long distances in a large warehouse. The Veteran has one year of college education, and had additional training in stonecutting. The Social Security Administration found that the Veteran has been disabled since November 2011, based upon multiple impairments—including disorders of the back, and affective disorders. He submitted a formal claim for TDIU in August 2015. Inasmuch as this issue may be impacted by the service connection claim for PTSD, this issue must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2017 to the present. 2. Obtain and associate with the Veteran’s claims file, all service personnel records. 3. Notify the Veteran regarding evidentiary requirements for claims of entitlement to service connection for PTSD based on personal assault. 4. Schedule the Veteran for an examination by a VA psychiatrist to determine whether the diagnostic criteria for PTSD under DSM-5 are met. The Veteran’s claims file must be available to the examiner designated to examine the Veteran. All necessary special studies or tests, to include psychological testing and evaluation, should be accomplished. The examiner should comment on the presence or absence of any behavioral changes occurring at or close in time to the alleged stressor incidents. The examiner should render opinions as to whether the claimed in-service physical assault in SERE training occurred; whether the Veteran currently has PTSD or a psychiatric disability of any kind; and if so, whether it is at least as likely as not that PTSD or psychiatric disability of any kind was caused or aggravated by his active service, to include reports of in-service physical assault. Please explain in detail any opinion provided. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary C. Suffoletta