Citation Nr: 18158512 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 14-00 767 DATE: December 18, 2018 ORDER Entitlement to a rating in excess of 20 percent for residuals, injury low back, with degenerative arthritis is denied. REMANDED Entitlement to a rating in excess of 10 percent for degenerative joint disease, left knee is remanded. FINDING OF FACT Residuals, injury low back, with degenerative arthritis is manifested by low back pain, stiffness, and forward flexion better than 30 degrees. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for residuals, injury low back, with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1977 to February 1981. A hearing in this matter was held before the undersigned veterans law judge in November 2016 in Phoenix, Arizona. The transcript is of record. 1. Entitlement to a rating in excess of 20 percent for residuals, injury low back, with degenerative arthritis Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. 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. The Veteran’s low back injury with degenerative arthritis is rated under Diagnostic Code 5242, covering degenerative arthritis of the spine. All spine disabilities covered by Diagnostic Codes 5235 to 5243 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine 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. Id. Under the General Formula, a 20 percent rating is warranted for the thoracolumbar spine when forward flexion is limited to 60 degrees, combined range of motion is limited to 120 degrees, or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. A 40 percent rating is warranted when forward flexion is limited to 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. Id. Throughout the period on appeal, the Veteran has reported low back pain and stiffness, along with intermittent numbness and tingling in the lower extremities. The Veteran is competent to report such lay observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372. The Veteran received a VA examination in July 2009. Upon examination, the Veteran exhibited forward flexion to 60 degrees after repetitive testing. The examiner noted pain on motion, but no additional functional loss. There was no muscle spasm, guarding, or ankylosis present. The Veteran reported no numbness or weakness in the lower extremities. Another VA examination was conducted in June 2013. Upon examination, the Veteran exhibited forward flexion to 40 degrees after repetitive testing. The examiner noted no objective evidence of painful motion. The examiner noted muscle guarding or spasms that resulted in an abnormal spinal contour (shoulder high on left, ilium high on right). There was no ankylosis. Treatment notes from July 2013 state that the Veteran has chronic low back pain, but that the subjective pain complaints were not supported by the objective clinical findings. The physician also noted the Veteran’s complaints of leg pain, but stated that they do not appear to fit any specific dermatomal distribution. Treatment notes from a consultation in August 2013 indicate that the Veteran reported occasional radiating pain down the back of both lower extremities. The physician noted that there was no clear radiculopathy. The Veteran received a VA examination in June 2015. The Veteran reported constant low back pain with intermittent numbness in both legs. He did not report flare-ups. Upon examination the Veteran exhibited forward flexion to 80 degrees. There was no muscle spasm, guarding, or ankylosis. Muscle strength, reflex, and sensory testing were all normal. Another VA examination was performed in December 2017. The Veteran reported low back pain and stiffness with intermittent radiation of pain, numbness, and tingling into the left lower extremity. Upon examination the Veteran exhibited forward flexion to 40 degrees. There was no additional functional loss after repetitive testing. There was no muscle guarding or spasm. There was no ankylosis. Muscle strength, reflex, and sensory testing were all normal. The examiner found no objective evidence of radiculopathy. Based on the above evidence, the Board finds that the Veteran’s symptoms warrant a 20 percent rating. To warrant a 40 percent rating, there would need to be forward flexion of 30 degrees or less or favorable ankylosis of the thoracolumbar spine. Throughout the period on appeal, forward flexion has been documented at 40 degrees at worst, even after repetitive testing. There is no ankylosis. The Veteran has not reported flare-ups that cause additional functional loss. Therefore, a rating in excess of 20 percent is not warranted. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. Although the Veteran has reported numbness, tingling, and pain in the lower extremities, objective testing has repeatedly found no evidence of radiculopathy. No other neurologic abnormalities or bowel or bladder impairments have been noted. As such, additional separate compensable ratings are not warranted. Although the Veteran is competent to report that he had decreased sensation or radiating pain, his lay statements must be compared with the other evidence of record. When we compare his statements with the observations of a skilled professional, we conclude that the more probative evidence establishes that he does not have a neurologic deficit and that a separate rating for neuropathy is not warranted. Stated differently, his lay evidence is less probative and less credible than observations prepared by skilled professionals. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is not in favor of a rating in excess of 20 percent for the Veteran’s low back injury with degenerative arthritis.   REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease, left knee is remanded. While the record contains a contemporaneous VA examination regarding the Veteran’s left knee degenerative joint disease (DJD), the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. The examiner simply stated that an estimate could not be provided because the examination was not conducted during a flare-up. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his left knee DJD. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state the reason. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. 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. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel