Citation Nr: 20037530 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 17-24 282 DATE: June 2, 2020 ORDER An initial rating in excess of 10 percent for lumbar degenerative disc disease (DDD) and degenerative joint disease (DJD) is denied. REMANDED Service connection for a left knee disorder.   FINDING OF FACT The Veteran’s lumbar spine disability has not manifested by forward flexion limited to 60 degrees or less, combined range of motion of the thoracolumbar spine 120 degrees or less, or intervertebral disc syndrome (IVDS). CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for the Veteran’s lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1981 to January 1985. The case is on appeal from an August 2016 rating decision. The Board notes that only the claims listed on the title page are currently on appeal. In this regard, in February 2017 notices of disagreement (NODs), the Veteran requested service connection for hearing loss, tinnitus, a right knee disorder, and an eye disorder, in addition to the claims on appeal. However, the NOD for hearing loss was not timely in regard to the April 2015 rating decision denying such claim. See 38 C.F.R. § 19.21. In addition, the Veteran’s representative expressly limited the appeal to the issues listed on the title page in an April 2017 VA Form 9 substantive appeal. The Board also notes that the Veteran requested a hearing in the April 2017 VA Form 9. He was scheduled for a hearing in May 2019, but he did not attend. Thus, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial rating in excess of 10 percent for lumbar DDD and DJD. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran’s low back disability is rated under DC 5242, which is rated according to The General Rating Formula for evaluating the spine. 38 C.F.R. § 4.71a. The General Rating Formula provides for a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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 disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Following the rating criteria, Note 1 states: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. Id. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent rating is warranted for 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 incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.   Analysis The Veteran is seeking a higher initial rating for his lumbar spine disability. In the April 2017 VA Form 9, the Veteran’s representative stated that the July 2016 examiner did not estimate range of motion on repetitive use over time. He also stated that the Veteran experiences moderate to severe pain and limited range of motion after prolonged walking and repetitive lifting and bending that results in functional impairment. He further stated that the evidence shows the Veteran experiences muscle spasm or guarding severe enough to cause an abnormal gait or spinal contour after prolonged activity. The Veteran was afforded an examination in regard to this claim in July 2016. The Veteran reported constant pain that is worse with heavy lifting, repetitive lifting and bending, prolonged walking, and climbing ladders. He also reported intermittent numbness in his right thigh and across his knees that lasts 4 to 5 hours and that makes it feel like he has a limp. He denied experiencing flareups. The examiner diagnosed the Veteran with lumbar DDD and DJD. The examiner reported ranges of motion of forward flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, and right and left lateral rotation to 30 degrees each, with pain resulting in functional loss. He also reported evidence of pain with weight-bearing and mild to moderate tenderness to palpation. He denied additional loss of range of motion on 3 repetitions of testing. The examiner found that he was unable to estimate ranges of motion on repetitive use over time without resorting to mere speculation because the Veteran’s medical history and the examination do not allow for an estimation of such additional functional limitation. He further reported that lower extremity strength and reflex testing was normal. He denied the presence of guarding, muscle spasms, ankylosis, IVDS, use of assistive devices, and lower extremity radiculopathy or other neurologic abnormalities. The examiner explained that the Veteran has a patch of numbness on his left lateral thigh that did not match a dermatome and is unrelated to his lumbar spine disability. He concluded that the Veteran experiences functional impairment of difficulty with repetitive or heavy lifting, repetitive bending, prolonged walking, and using ladders. In August 2016, the Veteran was afforded an examination in regard to back scars. The examiner reported the presence of 2 scars on the Veteran’s left midback. The examiner also reported that the scars each measured 2 centimeters (cms) by 1 cm in area and that are not painful or unstable. Thereafter, in April 2018, the Veteran was afforded another back examination. The Veteran reported experiencing daily, dull lumbar pain 1 or 2 out of 10 in severity. He also reported experiencing flareups of lumbar symptoms 3 to 4 times per month resulting in pain 3 to 4 out of 10 in severity and lasting up to 8 hours. He further reported being able to perform activities of daily living, driving, and sitting without limitations as well as being able to walk 2 miles, climb 1 flight of stairs, and lift less than 50 pounds. The examiner reported ranges of motion of forward flexion to 75 degrees, extension to 25 degrees, right and left lateral flexion to 30 degrees each, and right and left lateral rotation to 30 degrees each, with pain on forward flexion and extension. She also reported evidence of pain on palpation. She denied additional loss of range of motion on 3 repetitions of testing. The examiner found that the examination was consistent with the Veteran’s statements regarding functional loss with repetitive use over time, but that his functional ability is not significantly limited due to pain, weakness, fatigability, or incoordination with repetitive use over time. She also found that the examination was consistent with the Veteran’s statements regarding functional loss during flareups, but that his functional ability is not significantly limited due to pain, weakness, fatigability, or incoordination during flareups. She further found that lower extremity strength and reflex testing was normal. The examiner also denied the presence of guarding, muscle spasms, ankylosis, IVDS, use of assistive devices, and lower extremity radiculopathy or other neurologic abnormalities. She stated that there is no objective evidence of pain on nonweight-bearing and that passive range of motion testing was not performed because it is not feasible to do so in a safe and reasonable manner. She concluded that the Veteran’s lumbar spine disability results in a need to avoid heavy or repetitive lifting. The Board finds that a rating in excess of 10 percent for the Veteran’s lumbar spine disability is not warranted. In this regard, the evidence of record does not show that he experienced forward flexion limited to less than 75 degrees or combined range of motion of the thoracolumbar spine limited to less than 220 degrees, even during repeated use over time or flareups. The evidence also does not show the presence of IVDS. While the Veteran’s representative reported that the Veteran’s symptoms are worse with repetitive use over time, the April 2018 examiner explained that he does not experience significant functional limitation with repetitive use over time or during flareups. The Veteran has consistently reported experiencing pain due to his lumbar spine disability and the examiners found functional impairment due to this disability. However, such impairment, even during flareups and with repetitive use over time, is contemplated by the 10 percent rating already assigned for this disability during the period on appeal. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5242; DeLuca, 8 Vet. App. at 202. In addition, the Veteran does not experience neurologic abnormalities due to his lumbar spine disability. While he has reported experiencing lower extremity numbness, the July 2016 examiner explained that left lower extremity numbness is unrelated to his back condition and both examiners denied the presence of radiculopathy or other neurologic abnormalities related to this condition. Furthermore, the August 2016 scar examiner explained that the back scars are not painful, unstable, or greater than 39 square cms in area. See 38 C.F.R. § 4.118, DCs 7800-7805. In sum, the preponderance of the evidence shows that the Veteran’s lumbar spine disability has not manifested by forward flexion limited to 60 degrees or less, combined range of motion of the thoracolumbar spine 120 degrees or less, or IVDS. Therefore, there is no doubt to be resolved and a rating in excess of 10 percent for the lumbar spine disability is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND Service connection for a left knee disorder. The Veteran contends that he has a left knee disorder due to service. In this regard, in a February 2017 NOD, the Veteran’s representative stated that the Veteran has a left knee disorder due to wear and tear on the joint during service as a welder. He also stated that the Veteran worked on his knees for extended periods and went from kneeling to standing frequently during service. The Veteran’s service personnel records (SPRs) show that he served as a welder. His service treatment records (STRs) show that he denied experiencing arthritis, lameness, and trick or locked knees in October 1983 and January 1985 reports of medical history. The Veteran’s lower extremities were marked normal and no knee symptoms were noted or reported during October 1983 and January 1985 examinations. The Veteran’s post-service VA treatment records show that he reported experiencing bilateral knee pain in June 2010 after sitting with his knees in an uncomfortable position while painting his church. He denied having a history of knee injury or trauma. The Veteran has not yet been afforded an examination for this claim. On remand, he should be afforded an examination to determine the nature and etiology of his current left knee disorders. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The claim is REMANDED for the following action: Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature and etiology of the left knee disorders. The entire claims file should be reviewed by the examiner. The examiner should address the following: (a.) Identify all left knee disorders present since June 2016. (b.) State whether it is at least as likely as not that each left knee disorder had its onset during service, within one year of discharge, or is otherwise related to an in-service event, disease, or injury, to include working as a welder. A rationale for should be provided for opinions expressed. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Jimerfield 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.