Citation Nr: 19148024 Decision Date: 06/20/19 Archive Date: 06/19/19 DOCKET NO. 17-49 338 DATE: June 20, 2019 ORDER Entitlement to an increased rating for a lumbar spine disability, rated 10 percent prior to May 10, 2018, and 20 percent as of May 10, 2018, is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT 1. Prior to May 10, 2018, the evidence did not show limitation of thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a 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. 2. The preponderance of evidence is against a finding that a lumbar spine disability manifested with unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine throughout the entire period of appeal. CONCLUSION OF LAW The criteria for entitlement to an increased rating for a lumbar spine disability rated 10 percent prior to May 10, 2018, and 20 percent as of May 10, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1990 to July 2010. These matters come before the Board of Veterans’ Appeals (Board) from a September 2017 rating decision of the Department of Veterans Affairs (VA) Veterans Benefits Administration Regional Office (RO). In April 2018, the Veteran participated in a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. The rating for degenerative joint disease, lumbar was increased from 10 percent to 20 percent, effective May 2018, in a June 2018 rating decision. A claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded, or until the Veteran withdraws the claim. AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to a higher rating for degenerative joint disease, lumbar remains on appeal. 1. Entitlement to an increased rating for a lumbar spine disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period for which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). Consideration must be given as to whether staged ratings should be assigned to compensate entitlement to a higher rating at any point during the pendency of the claim. When the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is used under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. 38 C.F.R. § 4.71a. The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include vertebral fracture or dislocation (Diagnostic Code 5235), sacroiliac injury and weakness (Diagnostic Code 5236), lumbosacral or cervical strain (Diagnostic Code 5237), spinal stenosis (Diagnostic Code 5238), unfavorable or segmental instability (Diagnostic Code 5239), ankylosing spondylitis (Diagnostic Code 5240), spinal fusion (Diagnostic Code 5241), and degenerative arthritis of the spine (Diagnostic Code 5242). Degenerative arthritis of the spine can also be rated using Diagnostic Code 5003. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent rating 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. 38 C.F.R. § 4.71a. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note (2). The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion. Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: 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; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). The Veteran’s degenerative joint disease of the lumbar spine has been rated under Diagnostic Code 5242 as 10 percent prior to May 10, 2018, and 20 percent as of May 10, 2018. On VA examination in July 2017, the Veteran had initial forward flexion of the thoracolumbar spine to 75 degrees. Extension was to 25 degrees. Right lateral flexion was to 25 degrees. Left lateral flexion was to 25 degrees. Right lateral rotation was to 20 degrees. Left lateral rotation was to 20 degrees. The range of motion did not contribute to a functional loss. No additional loss of function or range of motion was found after repetitive-use testing. The Veteran did not have an abnormal gait, ankylosis, muscle atrophy, IVDS, guarding, or muscle spasm of the thoracolumbar spine. Nor did the Veteran use any assistive devices to aid in locomotion. On VA examination in May 2018, the Veteran had initial forward flexion of the thoracolumbar spine to 60 degrees. Extension was to 20 degrees. Right lateral flexion was to 15 degrees. Left lateral flexion was to 20 degrees. Right lateral rotation was to 20 degrees. Left lateral rotation was to 15 degrees. Range of motion itself contributed to a functional loss in that the Veteran could not walk long distances or bend. On repetitive use testing, the Veteran had thoracolumbar spine forward flexion of 55 degrees. Extension was to 20 degrees. Right lateral flexion was to 15 degrees. Left lateral flexion was to 20 degrees. Right lateral rotation was to 20 degrees. Left lateral rotation was to 15 degrees. During flare ups, the Veteran had thoracolumbar spine forward flexion of 55 degrees. Extension was to 20 degrees. Right lateral flexion was to 15 degrees. Left lateral flexion was to 20 degrees. Right lateral rotation was to 20 degrees. Left lateral rotation was to 15 degrees. The Veteran did not have an abnormal gait, ankylosis, muscle atrophy, IVDS, guarding, or muscle spasm of the thoracolumbar spine. The Veteran regularly used a cane and occasionally used a rollator to assist in locomotion. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. In this regard, the record currently contains no other examinations that are valid for rating purposes. During an April 2018 Board hearing, the Veteran reported taking tramadol, meloxicam, and pregabalin for back pain. During the hearing, the Veteran stated that back pain caused him to have difficulty sleeping, walking up stairs, lifting things, bending, and caused constant pain. The Veteran believed that he was unable to work, at least in part, due to the back disability and he struggled to independently take care of himself. The Veteran also provided a lengthy history of his Naval service and the tasks he believed led to the current back disability. In support of the claim, in addition to self-written statements, the Veteran has also submitted a written statement from his spouse describing his current disability and the impact it has on his life. Initially, the Board notes that there has been no medical evidence of ankylosis nor intervertebral disc syndrome of the thoracolumbar spine during the course of the appeal. Thus, a higher rating cannot be assigned on those bases. The Board also notes that the Veteran has been rated separately for cervical spine and neurological deficits associated with degenerative joint disease, lumbar. The issues of cervical spine disability and neurologic deficit are not currently before the Board and will not be addressed in this decision. Prior to May 10, 2018, the Board finds that the evidence did not show limitation of lumbar spine flexion to be greater than 30 degrees but not greater than 60 degrees. The evidence also did not show a 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. Therefore, a rating higher than 10 percent is not warranted prior to May 10, 2018. The Board finds that as of May 10, 2018, the Veteran’s back disability warranted a 20 percent rating, but not higher. The May 2018 VA examination found that after testing, at worst, the Veteran had forward flexion of the thoracolumbar spine to 55 degrees, which is greater than 30 degrees but not greater than 60 degrees. Pursuant to Diagnostic Code 5242, that level of impairment is consistent with a 20 percent disability evaluation. A higher rating is not warranted because the evidence of record does not show forward flexion of the thoracolumbar spine of 30 degrees or less; or any ankylosis. The Board has considered any additional functional loss due to pain or other factors, but finds that the objective evidence does not show additional functional loss that would warrant elevation to any higher ratings. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 10 percent for a degenerative joint disease of the lumbar spine prior to May 10, 2018. Additionally, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 20 percent for a degenerative joint disease of the lumbar spine effective May 10, 2018. Therefore, the Board finds that the preponderance of the evidence is against the assignment of any higher ratings. Thus, the claim must be and is denied. Gilbert v. Derwinski, 1 Vet. App. 49; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability pain is remanded. 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disability (TDIU) is remanded. The Board finds that further evidentiary development is necessary before the Board can adjudicate the remaining claims on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is given every possible consideration prior to further disposition of the claim of entitlement to service connection for a left knee condition. The Veteran was last provided a VA examination in July 2017. During that examination, the Veteran was found to have no diagnosable left knee disability. As a result, the claim for service connection was denied in a September 2017 rating decision. The Veteran has since provided medical evidence that shows a current diagnosis of bilateral mild degenerative joint disease with patellar tendinitis. Additionally, during the course of the appeal period, the Veteran has provided an alternate theory of entitlement. Specifically, the Veteran now alleges that a current left knee injury is secondary to service-connected right knee and back disabilities. During the April 2018 Board hearing, the Veteran stated that, because of the service-connected right knee disability, he placed all his weight on the left knee, which in turn began to deteriorate. The Veteran also stated that he is always in pain, even when using knee braces. VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). When the medical evidence is incomplete, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Remand is required to provide the Veteran a VA examination, which adequately addresses any relationship between a left knee disability, and the Veteran’s service or service-connected right knee and back disabilities. Thus, because of the new evidence of a current left knee disability and a plausible alternative theory of entitlement, remand is necessary for adequate etiology opinions regarding a left knee disability. Therefore, the Board finds that further VA examination to determine the etiology of any left knee disability is warranted. The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The Board also finds that the claim of entitlement to TDIU is inextricably intertwined with the claim for service connection for a left knee disability. Since that claim is being remanded, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider that derivative claim prior to the determination of the other claim. Therefore, the adjudication of the TDIU claim must be deferred pending resolution of that claim. Harris v. Derwinski, 1 Vet. App.180 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records relevant to the claims for service connection. 2. Schedule the Veteran for a VA joints examination, with a medical doctor who has not previously examined the Veteran, to diagnosis and determine the nature and etiology of the any left knee disability. The examiner must review all pertinent records associated with the claims file, including this Remand, and indicate review of the file in the examination report. The examiner should address the Veteran’s lay statements, including the hearing testimony of record, regarding the claimed left knee disability and its etiology. A clearly stated rationale for each opinion offered must be provided and must not be based solely on the lack of an in-service record of the claimed disability. The examiner should provide the following opinions: (a.) Diagnose all left knee disabilities found and reconcile that diagnosis with any other diagnoses of record. (b.) Is it at least as likely as not (50 percent or greater probability) that any left knee disability is etiologically related to service or any incident of service? (c.) Is it at least as likely as not (50 percent or greater probability) that any left knee arthritis manifested within one year following separation from service? Please cite to any evidence to support a finding of arthritis within one year following service. (d.) Is it at least as likely as not (50 percent or greater probability) that any left knee disability was caused by any service-connected disabilities or treatment for any service-connected disabilities, to include a right knee and back disabilities? (e.) Is it at least as likely as not (50 percent or greater probability) that any left knee disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by any service-connected disabilities or treatment for any service-connected disabilities, to include right knee and back disabilities? Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mondesir, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.