Citation Nr: 20006281 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 14-27 411 DATE: January 24, 2020 ORDER Entitlement to an initial rating in excess of 10 percent prior to February 13, 2014, an evaluation in excess of 20 percent from February 13, 2014 to May 4, 2015, and an evaluation in excess of 40 percent since May 5, 2015 for degenerative disc disease of the lumbar spine disability is denied. REMANDED Entitlement to an initial evaluation in excess of 20 percent for impingement syndrome with partial rotator cuff tear, tendinitis, and arthritis of the left shoulder disability is remanded. Entitlement to an initial evaluation in excess of 10 percent for left knee patellofemoral pain syndrome disability is remanded. Entitlement to an initial evaluation in excess of 10 percent for right knee patellofemoral pain syndrome disability is remanded. FINDING OF FACT 1. Prior to February 13, 2014, the Veteran’s lumbar spine disability was not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees or for muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis or favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes of intervertebral disc syndrome (IVDS). 2. For the period from February 13, 2014 to May 4, 2015, the Veteran’s lumbar spine disability was not manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes of IVDS. 3. At no point during the period under appeal has the Veteran’s lumbar spine disability been manifested by favorable or unfavorable ankylosis of the thoracolumbar spine, or IVDS having a total duration of at least 6 weeks during any 12-month period. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent prior to February 13, 2014, an evaluation in excess of 20 percent from February 13, 2014 to May 4, 2015, and an evaluation in excess of 40 percent since May 5, 2015 for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from November 1997 to January 2011. The Veteran has submitted a waiver of initial consideration for additional VA medical records, including a December 2018 VA back examination report, associated with the claims folder following the issuance of an April 2018 supplemental statement of the case (SSOC). See April 2019 correspondence. During the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) has proposed a reduction in the assigned rating from 40 percent to 20 percent for the Veteran’s lumbar spine disability. See July 2017 rating decision. However, as a reduction has not been implemented during the pendency of the appeal, the merits of any reductions will not be considered herein. 1. Entitlement to an initial rating in excess of 10 percent prior to February 13, 2014, and evaluation in excess of 20 percent from February 13, 2014 to May 4, 2015, and an evaluation in excess of 40 percent since May 5, 2015 for lumbar spine disability The Veteran seeks higher ratings for his lumbar spine disability. He asserts that the severity of his lumbar spine disability is worse than reflected by the assigned rating. To the extent that the Veteran testified in July 2018 that his back condition had worsened since the previous VA examination, a more recent November 2018 examination report has been added to the record which provides more current finding regard the lumbar spine. The Veteran has waiver initial RO consideration of evidence submitted after the last supplemental statement of the case. Therefore, the Board finds that the evidence of record is sufficient to adjudicate the increased rating claim for the lumbar spine disability and remand for another VA examination is not necessary. The Veteran’s lumbar spine disability has been assigned a 10 percent prior to February 13, 2014, a 20 percent from February 13, 2014 to May 4, 2015, and a 40 percent since May 5, 2015 under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 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 for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The record shows that the Veteran initiated his claim for service connection for a lumbar spine disability prior to his separation from service in January 2011. During the pendency of the appeal, the Veteran’s lumbar spine disability has been evaluated six times by VA, and the Veteran has sought VA and private treatment for low back pain and associated radiating pain down his lower extremities. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent prior to February 13, 2014 for lumbar spine disability. Prior to February 13, 2014, the Veteran’s lumbar spine was evaluated in December 2010 and February 2012 VA spine examination reports, and at worst, range of motion testing showed his forward flexion was limited to 70 degrees and his total combined range of motion was limited to 220 degrees due to pain and no additional limitation of motion after repetitive use. There was evidence of tenderness and muscle spasms, but the curvature of his lumbar spine and gait were considered within normal limits. VA treatment records show the Veteran sought treatment for exacerbations of low back pain, but do not describe the results of any range of motion testing. See January 2012, July 2012, and October 2013 VA treatment records. The Veteran’s low back pain was considered to have improved following long-term physical therapy sessions. See May 2012 VA medical statement for employment; and November 2013and December 2013 VA physical therapy notes. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, stiffness, muscle spasms, and decreased motion, and flare-ups of pain due to physical activity that limited his ability to perform heavy lifting. See December 2010 VA examination report. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s statements would not result in limitation of motion more nearly approximating 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. Additionally, the competent medical evidence did not demonstrate that the Veteran’s muscle spasm or guarding was severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Despite the Veteran’s contention that he has experienced flare-ups, the evidence does not indicate that such flare-ups were of such a severity to limit flexion of the thoracolumbar spine to 60 degrees or less during the period prior to February 13, 2014. To that end, the Board notes that the Veteran complained largely of pain during flare-ups, but not limitation of motion. As such, the General Rating Formula provides no basis for a rating in excess of 10 percent for lumbar spine disability for the period prior to February 13, 2014. Next, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the period from February 13, 2014 to May 4, 2015 for lumbar spine disability. Here, the February 2014 VA spine examination report shows that the Veteran complained of low back pain and radiating pain down his lower extremities; he stated that he can sit and stand fairly comfortably and drives for up to 330 miles. He reported that he had increased stiffness with cold weather, and he alleviated low back pain by lying down, stretching, taking warm showers, and using heating pads. He reported that during flare-ups of low back pain, he must cease his activity and rest. Range of motion testing showed his forward flexion was limited to 60 degrees and there was no additional limitation of motion after repetitive use. The VA examiner considered that the Veteran had increased low back pain with prolonged sitting, standing, and repetitive heavy lifting, but stated that no specific degree of limitation of range motion during a flare-up could be estimated. There was evidence of tenderness and muscle spasms, but the curvature of his lumbar spine and gait were considered within normal limits. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to less movement than normal, weakened movement, excess fatigability, and pain on movement. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s statements that he has decreased range of motion and needs to rest during flare-ups of low back pain would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. As such, the General Rating Formula provides no basis for a rating in excess of 20 percent for the period from February 13, 2014 to May 4, 2015. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the period since May 5, 2015 for lumbar spine disability. The 40 percent rating currently assigned for the period since May 5, 2015 is the maximum schedular rating for limitation of motion of the thoracolumbar spine under the General Rating Formula. Notably, a rating greater than 40 percent for the thoracolumbar spine under the General Rating Formula requires a finding of ankylosis. Here, however, there is no evidence of the Veteran’s thoracolumbar spine being fixed in position or ankylosed during the period under consideration, and the absence of ankylosis was specifically noted during May 2015, July 2017, and November 2018 VA spine examination reports. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to weakened movement, pain on movement, and muscle spasms on exam. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s statements that he is body locks up, he is unable to walk and requires use of wheelchair during periods of severe flare-ups in pain, would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. Therefore, the rating considerations pertaining to functional loss due to pain and other factors (as delineated in 38 C.F.R. §§ 4.40 and 4.45, and DeLuca), provide no basis for any higher rating, and a rating greater than 40 percent under the General Rating Formula is not warranted from May 5, 2015 or at any time pertinent to the current claim. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. While the Veteran does have IVDS, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating at any point during the pendency of the appeal. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. While the Veteran reports that in order to alleviate increased low back pain, he will lay down and rest, the record does not show that the Veteran has been prescribed bed rest by a physician of any duration. See 2012, 2014, 2015, 2017, 2018 VA spine examination report, VA treatment records, and private treatment records. Therefore, a higher rating under the Formula for Rating IVDS based on incapacitating episodes of IVDS is not warranted for any period on appeal. See 38 C.F.R. § 4.71a, DC 5243, Note (1). Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy in the right and left lower extremities. The Veteran did not disagree with the ratings assigned for the bilateral lower extremity radiculopathy and the propriety of such ratings is not before the Board. In addition, the preponderance of competent evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. The Board has considered the Veteran and his spouse’s lay statements regarding the instances of urinary and bowel incontinence during periods of severe flare-ups of the Veteran’s low back pain. See July 2017 VA spine examination report, and August 2018 statement in support of the case from the Veteran’s spouse. However, no medical provider has identified chronic bladder or bowel problems associated with the Veteran’s lumbar spine disability. Each of the VA examiners marked that the Veteran did not have any bladder or bowel impairment associated with his lumbar spine disability. While the Veteran is competent to report symptomatology that he experiences, he has not shown that he has the medical experience or training to relate chronic conditions to his lumbar spine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, such a determination must be made by a medical professional with appropriate expertise. Id. Accordingly, the Board give more probative value to the VA examiners’ medical findings than the Veteran’s lay statement of urinary and bowel incontinence during flare-ups of low back pain. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for an initial rating in excess of 10 percent prior to February 13, 2014, and evaluation in excess of 20 percent from February 13, 2014 to May 3, 2015, and evaluation in excess of 40 percent since May 5, 2015 for the Veteran’s lumbar spine disability. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 20 percent left shoulder disability is remanded. 2. Entitlement to an initial evaluation in excess of 10 percent for left knee disability is remanded. 3. Entitlement to an initial evaluation in excess of 10 percent for right knee disability is remanded The Veteran seeks higher initial evaluations for his left shoulder, left knee, and right knee disabilities. During the July 2018 Board hearing, the Veteran testified that each of his disabilities has worsened since they were last evaluated by VA. Moreover, additional VA treatment records suggest that the Veteran’s knee and left shoulder disabilities have worsened. See VA treatment record dated from March 2018 to January 2019. Accordingly, the Veteran should be afforded with new VA examinations to evaluate the severity of his disabilities. The matters are REMANDED for the following action: 1. Update the claims folder with the Veteran’s VA treatment records dated from January 2019 to the present. (Continued on the next page)   2. Schedule the Veteran for an examination to determine the current severity of his service-connected left shoulder disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to left shoulder disability alone and discuss the effect of the Veteran’s left shoulder disability on any occupational functioning and activities of daily living. 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 whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination to determine the current severity of his service-connected right knee and left knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due knee disabilities alone and discuss the effect of the Veteran’s knee disabilities on any occupational functioning and activities of daily living. 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 whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.