Citation Nr: 18155707 Decision Date: 12/06/18 Archive Date: 12/04/18 DOCKET NO. 16-52 495 DATE: December 6, 2018 ORDER The claim for service connection of depression is dismissed. An initial evaluation exceeding 20 percent for thoracolumbar degenerative joint disease, intervertebral disc syndrome is denied. REMANDED The claim for an initial evaluation in excess of 10 percent for left knee patellofemoral pain syndrome is remanded. The claim for an initial evaluation in excess of 10 percent for right knee patellofemoral pain syndrome is remanded. FINDINGS OF FACT 1. The claim for service connection of an acquired psychiatric disorder, to include depression, was granted in full in a December 3, 2016, Decision Review Officer (DRO) decision. 2. Service-connected thoracolumbar degenerative joint disease, intervertebral disc syndrome is marked by no worse than forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, without guarding severe enough to result in abnormal gait. CONCLUSIONS OF LAW 1. There is no question or controversy for consideration by the Board with regard to an acquired psychiatric disorder, to include depression. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.101 (2018). 2. The criteria for an initial evaluation in excess of 20 percent for thoracolumbar degenerative joint disease, intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 2007 to February 2014. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection In a December 2016 decision, a DRO granted service connection for an acquired psychiatric disorder, specifically including all currently reported and complained of diagnoses. As this encompasses depression, the benefit sought on appeal has been granted, and there is no further question to be resolved. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating musculoskeletal disabilities that are at least partly rated on the basis of range of motion, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, premature or excess fatigability, or incoordination (including during flare-ups or with prolonged or repeated use), assuming these factors are not already contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (indicating to apply 38 C.F.R. § 4.59 even in cases that do not involve arthritis). The Veteran is currently evaluated under the criteria of Code 5243, for intervertebral disc syndrome (IVDS). Either of two sets of criteria may be applied, that is, also those listed in the General Rating Formula for Diseases and Injuries of the Spine found in Codes 5235-42. The IVDS (i.e., disc disease) may be rated based on the cumulative amount of time in which the condition was incapacitating over the prior 12 months, or based upon the degree of limitation of motion, including owing to pain. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, the disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 20 percent rating requires thoracolumbar spine forward flexion 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 for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, Note 2. Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Note 4. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a, Code 5239, Note 5. In December 2014 and October 2016 statements, the Veteran reported exercising five days per week and described himself as being in excellent shape. In those same statements, the Veteran described being bedridden seven days per month and living with extensive pain every day. The Veteran is competent to describe his symptoms. Though his statements paint a contrasting disability picture, they deserve some probative weight. During a September 2014 medical examination, the Veteran reported that his back pain had worsened. He reported flare-ups, chronic daily pain, tenderness, and difficulty bending and moving quickly. He explained that family financial obligations did not permit him to take off from work due to his condition, though it was very painful at times. On physical examination, forward flexion ended at 55 degrees. The examiner indicated that the Veteran had functional loss and/or functional impairment of the thoracolumbar spine. Decreased movement, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing were noted. Guarding and/or muscle spasm were present, but did not result in abnormal gait or spinal contour. The examiner found no additional functional limitation with repetitive use. The examiner also noted no additional limitation of motion due to pain during flare-ups or repetitive use over time. There is no evidence that the examiner is not competent or credible and his opinion is entitled to significant probative weight. To merit an evaluation exceeding the currently-assigned 20 percent rating, the evidence must show that forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or that there is favorable ankylosis of the entire thoracolumbar spine. Here, the maximum degree of impairment of flexion was 55 degrees, during the September 2014 medical examination. The overall disability picture presented does not demonstrate a level of functional impairment the equivalent of the next higher criterion. Ankylosis has not been noted. Accordingly, entitlement to an evaluation in excess of 20 percent for thoracolumbar degenerative joint disease, intervertebral disc syndrome is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. Service connection has already been established for radiculopathy of the sciatic nerve, right lower extremity and radiculopathy of the femoral nerve, right lower extremity. There is no evidence of any other neurologic issues, and no other neurologic ratings are warranted here. Under the Formula for Rating IVDS, an “incapacitating episode” for purposes of totaling the cumulative time is defined as “period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, Code 5243, Formula for Rating IVDS Based on Incapacitating Episodes, Note 1. In a May 2016 procedural note, a private physician noted that the Veteran’s low back pain improved with rest. In a September 2014 medical examination, the Veteran denied any periods of incapacitation over the past 12 months due to IVDS. Though the Veteran has reported being bedridden for seven days per month, there is no evidence of physician-prescribed bed rest. An increased rating under IVDS criteria therefore is inappropriate. REASONS FOR REMAND The September 2014 VA contract examiner noted symptoms of a meniscal condition of each knee, to include frequent locking, pain, and effusion in the joints. However, there is no indication of any tear or dislocation of semilunar cartilage in either knee to account for these symptoms. Further, given that the current 10 percent rating is assigned for pain with noncompensable limitation of motion, more detailed findings are needed to ensure that prohibited pyramiding, or paying for the same disability twice, it avoided. Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for a VA knee examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all current diagnoses of the left and right knees and describe in detail the functional impairments related to the service-connected disabilities. The examiner should specify whether there is meniscal, ligamentous and/or osteo involvement in either joint, and how such is manifested, 2. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issues. If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDermott, Associate Counsel