Citation Nr: 20043783 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 18-11 448 DATE: June 29, 2020 ORDER Entitlement to a rating in excess of 10 percent for cervical spine osteoarthritis is denied. REMANDED Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for lumbar spine condition is remanded. FINDING OF FACT For the period on appeal, the Veteran’s forward flexion is limited, at most, to 35 degrees with no guarding or muscle spasms reported. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for cervical spine osteoarthritis have not been met. 38 C.F.R. § 4.71a Diagnostic Code (DC) 5242 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1987 to June 1990 and from October 2012 to June 2013. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 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. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that 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 Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45 (2019). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 1. Entitlement to a rating in excess of 10 percent for cervical spine osteoarthritis is denied. The Veteran was service connected for cervical spine osteoarthritis with a 10 percent rating in a March 2015 rating decision. The Veteran filed for increase in January 2017 and was denied in a March 2017 rating decision. This appeal arises from disagreement with this decision. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. As the Veteran is rated at 10 percent for his cervical spine condition, a higher rating is not permitted under this code. The General Rating Formula for diseases and injuries of the spine provides that, 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 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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. An evaluation of 20 percent is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. An evaluation of 30 percent is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. An evaluation of 40 percent is warranted for unfavorable ankylosis of the entire cervical spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a (2019). Intervertebral disc syndrome (IVDS) is evaluated 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 evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See also 38 C.F.R. § 4.71a, DC 5243. Note (1) to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes explains that an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. Note (2) explains that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment 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. In February 2017, the Veteran underwent a VA examination for his cervical spine condition. His diagnosis of cervical spine osteoarthritis was confirmed. No functional impairment of the spine was reported. It was noted that since his previous VA examination, he reported increased pain and stiffness. Range of motion testing revealed forward flexion to 45 degrees, extension to 45 degrees, right lateral flexion to 45 degrees, left lateral flexion to 40 degrees, and right and left lateral rotation to 60 degrees. Pain was noted on examination in left lateral flexion and left lateral rotation but it did not result in/cause functional loss. There was no evidence of pain on weight bearing. Localized pain or tenderness on palpation was noted with passive range of motion; but no specific muscle pain was reported. The Veteran was able to undergo repetitive-use testing; but he was not examined immediately after. Additionally, it was reported that repetitive use testing did not yield additional loss of function or range of motion. Flare-ups were not reported. Guarding or muscle spasms of the cervical spine were not reported. No additional factors contributed to his disability. Muscle strength testing and sensory examination yielded normal responses. His reflex examination noted hypoactive reflexes; but radiculopathy was not reported. The examiner reported that the Veteran does not have invertebral disc syndrome, there was no ankylosis of the spine, and he did not require assistive devices. The examiner opined that the cervical spine condition did not impact the Veteran's ability to work. The Veteran underwent an additional VA examination in October 2017. A diagnosis of osteoarthritis of the cervical spine. At the examination, the Veteran reported neck pain which increased when working under vehicles. He reportedly experienced stiffness, pain, and numbness and tingling in his left arm. The tingling began in his neck and went into his upper arm and forearm on the left. He compared the sensation to “like it’s falling asleep. It was limited ot the left side of his shoulder and arm into the forearm but not any further. It did not go into his hand. The Veteran reported that he has not had any diagnosis of the sensation on the left neck and arm. He had not had any EMG study of this. He reported that the left neck and arm sensation began in 2008/ 2009. Yet the condition has become better since he started taking medication for his headaches the year of this examination. He reported no change in his symptoms since his prior February 2017 VA examination. However, since his VA examination in 2015, his pain had become worse. He had more neck pain and a decreased range of motion in his neck. He reported the February 2017 VA examination did not adequately reflect the worsening. The baseline of his pain was a 2 out of 10. His flare-ups in his neck were 5-6 out of 10. The pain became worse with lifting or working overhead; and riding in a car or driving long distances. The examiner opined that the functional impact of the cervical spine condition was stiffness in the neck while driving that caused problems. The Veteran worked as an emergency medical service provided. He also worked as a mechanic, and noted that he had difficulty working under vehicles on a creeper or when he to work overhead. This could increase neck pain and make him less efficient at work. He reported that heavy lifting could also increase his pain. The examiner noted that while the Veteran complained of left upper extremity sensations of numbness and tingling on occasion, it did not go into his hands; and it may not be typical for cervical radiculopathy. Moreover, he had not made any claim of these symptoms in the past, per the records that he reviewed. As it compared to his previous February 2017 VA examination, the examiner stated there was no change in neck condition. Moreover, it was stated a review of the records did not indicate any concern in the past for possible cervical radiculopathy. More specifically, a review of the previous medical records, both VA and private, did not show any diagnosis of a cervical spine abnormality. Range of motion testing revealed forward flexion to 35 degrees, extension to 35 degrees, right lateral flexion to 35 degrees, left lateral flexion to 40 degrees, right lateral rotation to 70 degrees, and left lateral rotation to 50 degrees. Pain was noted on examination in left lateral flexion and caused functional loss. There was no evidence of pain on weight bearing. Minimal tenderness in the posterior neck to light palpation was reported. The Veteran was able to perform repetitive use testing, but no additional loss of function or range of motion was reported. The examiner did not provide an opinion as to fatigability or incoordination significantly limiting functional ability with repeated use over a period of time, including during flare-ups. It was explained that the examination is neither medially consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-ups. Moreover, the examiner found it was not possible to determine functional loss without resorting to mere speculation because there was no conceptual or empirical basis for making the determination without directly observing function under the conditions. Guarding or muscle spasms were both denied. There were no additional factors contributing to the disability. Again, both muscle and sensory examination reported normal results. Reflex examination yielded normal results. Radiculopathy, ankylosis, and IVDS were not found. The Veteran report use of assistive devices. With regard to functional impact, it was noted that the Veteran, who worked as an EMS provider, and opined that he have stiffness in his neck that affected his driving. He also worked as a mechanic, and would have difficulty working under vehicles or on a creeper due to increased neck pain. Problems with heavy lifting were also reported. The record includes the Veteran’s clinical treatment records but they do not include detailed measurements of any range of motion testing. There were also no complaints from the Veteran about muscle spasms or altered gait reflected in the clinical records. The Board finds the preponderance of the evidence is against granting a higher rating for the Veteran’s cervical spine condition. To warrant a higher rating, the evidence would need to show limitation of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 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. The record reveals the Veteran’s forward flexion of his cervical spine has been limited, at minimum, to 35 degrees. Additionally, both muscle spasms or guarding have not been reported. Nor has any IVDS been reported. This is so even when pain on use or during flares is taken into account. The Board calls attention to Sharp v. Shulkin, 29 Vet. App. 26 (2017), in which it was held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. To the extent that the October 2017 VA examination is deficient under Sharp, it is noted that the Veteran has not raised any challenge to the later examination. Nor has his representative, including the general boilerplate from the April 2020 Appellate Brief. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”). Moreover, it is not clear to the Board that any additional development would yield a probative response on this point. In any event, it is noted that the degrees of flexion shown on the two examinations during the period on appeal have consistently been greater than that required for the next-higher rating. For these reasons, a remand here would likely serve only to delay the claim. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The Board has also considered the Veteran’s complaints of pain in his left upper extremity and whether a separate compensable rating for radiculopathy was warranted. However, both VA examiners were aware of the Veteran’s complaints but radiculopathy was consistently not found. Additionally, the sensory examinations were reportedly normal. The Veteran denied in his October 2017 VA examination that the feelings of tingling and numbness went to his hand and this examiner found this is inconsistent with radiculopathy. A separate rating for radiculopathy is not warranted. REASONS FOR REMAND 2. Entitlement to service connection for a right knee condition is remanded. The current February 2015 direct service connection medical opinion of record for the Veteran’s right knee reports that the Veteran’s right knee symptoms were subjective on examination with no chronicity of care in his medical records. To that extent, a nexus could not be established. Later in February 2017, the Veteran reported persistent knee pain since injuring himself in July 2014. Moreover, functional loss or impairment was reported. He had pain with prolonged squatting and kneeling bilaterally. Yet, a diagnosis was not reported. Although the Veteran does not have a chronic, identifiable right knee disability, pain alone can constitute a “disability” if it results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018); see also Dorland’s Illustrated Medical Dictionary at 526 (32nd ed. 2012) (defining disability as “an incapacity or lack of the ability to functional normally; it may be either physical or mental or both”). To that extent, the Board finds that there is enough evidence to indicate his right knee may meet the Saunders threshold. As noted at his most recent VA examination for his knees, he experiences functional loss or impairment due to pain with prolonged squatting and kneeling. Moreover, the Veteran’s STR’s report an injury to the bilateral knees during active duty (see July 1989). Accordingly, the direct service connection VA opinion of record is inadequate. To that extent, a remand is needed to for a VA opinion that addresses his painful knee condition and inservice report of an injury to his right knee. 3. Entitlement to service connection for lumbar spine condition is remanded. The Veteran underwent a VA examination for his lumbar spine in October 2015. The VA examiner reported that the Veteran’s claim was less likely than not incurred in or caused by service. He rationalized that the Veteran’s condition was acute only, and there was no chronicity of care during service. On a July 2015 VA 21-4138 Statement in Support of Claim, the Veteran contended that he has a lower back disability was due to the heavy lifting he did during service. He reported that he loaded 105mm shells and 25mm turret gun shells during active duty. He also reported he was required to wear load-bearing tactical gear during service. According to him, these duties were accomplished while going over uneven terrain. He also reports he fell from a wall on an obstacle course while in the reserves. The October 2015 VA examiner reported that he reviewed the Veteran’s claim’s file. However, the Veteran's contentions were not addressed in the October 2015 VA opinion. The Veteran’s reserve records include reference an incident where he fell off of a wall. As such, an addendum opinion is needed to address the Veteran’s lay assertions. The matters are REMANDED for the following action: 1. Obtain updated medical records and associate them with the records to the extent possible. 2. Obtain an addendum VA medical opinion regarding the Veteran’s right knee condition from a medical professional with appropriate expertise. If the reviewer determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. The reviewer must address the following inquiry: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s right knee condition is due to a disease, injury or event experienced during his active duty service, to include his June 1989 injury? The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In reaching this conclusion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology such as pain. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Obtain an addendum VA medical opinion regarding the Veteran’s lumbar back condition from a medical professional with appropriate expertise. If the reviewer determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. The reviewer must address the following inquiry: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s lumbar condition is due to a disease, injury or event experienced during his active duty service? The examiner should address the Veteran's report that the back condition is due to include heavy lifting, wearing load bearing equipment, and/or a fall during active duty. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. (Continued on the next page)   In reaching this conclusion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology such as pain. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Wade, J. 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.