Citation Nr: 21000684 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 10-12 119 DATE: January 5, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for degenerative changes of the cervical spine (neck condition) is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for right knee patello-femoral pain syndrome (right knee condition) is remanded. Entitlement to disability rating based upon individual unemployability (TDIU) prior to June 5, 2017, is remanded. FINDING OF FACT The Veteran’s neck condition manifest as forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees. CONCLUSION OF LAW The criteria for evaluation for a disability rating in excess of 20 percent for a neck condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10-4.14, 4.21, § 4.71a, Diagnostic Code (DC) 5003-5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty service from December 1971 to December 1973; and from March 1974 to March 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2007 and May 2009 rating decisions by the Department of Veteran Affairs (VA) Regional Office (RO). In the August 2018 Board decision, the Veteran’s claims for increased disability ratings for his neck condition and right knee condition were denied. The Veteran appealed his claim to the U. S. Court of Appeals for Veterans Claims (Court), and in a April 2019 Order, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), partially vacated the August 2018 Board decision, and remanded the matters to the Board for readjudication consistent with the JMPR. In the June 2020 rating decision, the RO granted a TDIU effective February 8, 2018, the date the Veteran filed a VA 21-8940 TDIU application. However, a TDIU is still available prior to February 8, 2018, because the Veteran contends that he has not been able to work due in part to his neck condition. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (a TDIU, “whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather...part of a claim for increased compensation”). Essentially, this stems from his claim for an increased disability rating received on March 26, 2007. Therefore, the Board finds that the issue on appeal is appropriately characterized as entitlement to a TDIU prior to February 8, 2018. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to a disability rating in excess of 20 percent for a neck condition is denied. In the April 2019 JMPR, the parties agreed that the August 2018 Board decision warrants a remand because the Board failed to provide adequate statement of reasons or bases that addressed whether the Veteran’s functional loss during flare-ups or after repetitive use over time warrants a disability rating in excess of 20 percent for his neck condition. The Veteran contends that he is entitled to a higher disability rating. Currently, he has a 20 percent disability rating under 38 C.F.R. § 4.71a, DC 5003-5242. Hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Here, the hyphenated DC 5003-5242 indicates that the Veteran’s degenerative arthritis (DC 5003) is rated by analogy under the criteria for degenerative arthritis of the spine, DC 5242. Under DC 5242, the General Rating Formula for Diseases and Injuries of the Spine, A 20 percent rating 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. 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. In addition, DC 5242 provide for ratings under either the General Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, which allows for the assignment of rating criteria based on the frequency and extent of incapacitating episodes during the preceding 12 months. 38 C.F.R. § 4.71a, DC 5242. For VA rating purposes, 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. Id. at Note (1). The Board notes that the evidence of records does not indicate the Veteran has had incapacitating episodes. Thus, the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted. 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 joints are entitled to at least the minimum compensable rating for the joint. Here, the minimum compensable rating has been in effect during the entire appeal period. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In the May 2008 private treatment record, it was noted that the Veteran complained of chronic pain in his neck. Active side bending to right was to 25 degrees and left was to 20 degrees. Passive side bending to the right and left was to 25 degrees. Forward flexion was to 30 degrees and extension was to 25 degrees on both active and passive motion. The Veteran was afforded several VA examinations. First, in the November 2007 VA examination, passive neck side bending to the right and left was limited to 25 degrees. Active side bending to right was to 25 degrees and left was to 20 degrees. After three repetitions, side bending to the right was to 25 degrees and left was to 18 degrees. Forward flexion was to 30 degrees and extension was to 25 degrees on both active and passive motion. After three repetitions, flexion remained the same and extension was to 23 degrees. Second, in the June 2017 VA examination, it was noted that the Veteran reported flare-ups of neck pain and functional loss or functional impairment of the neck. In particular, the Veteran described functional loss as decreased movement due to pain and weakening of his arms due to degenerative disc disease. Forward flexion was to 30 degrees. Extension was to 20 degrees. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the neck. The Veteran was not able to perform repetitive-use testing with at least three repetitions due to potential neck pain with significant movement with extreme bending. The Veteran was not examined immediately after repetitive use over time nor during a flare-up. The examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and flare-ups. It was noted that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over time and flare-ups but could not be describe in terms of range of motion (ROM). It was noted that the Veteran has not guarding or muscle spasm of the neck. No abnormal gait or abnormal spinal contour. There was no ankylosis of the spine. Under Correia, there was objective evidence of pain when the neck is used in non-weight bearing. It was noted that passive ROM for the neck could not be performed or is not medically appropriate. Third, in the March 2018 VA examination, it was noted that the Veteran reported flare-ups of neck pain and functional loss or functional impairment of the neck. In particular, the Veteran described functional loss as “I have limited motion when the pain is worst.” Forward flexion was to 45 degrees. Extension was to 40 degrees. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the neck. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or ROM. The Veteran was not examined immediately after repetitive use over time nor during a flare-up. The examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. It was noted that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over time and flare-ups. The VA examiner noted that functional loss due to repeated use over time and flare-ups could not be describe in terms of ROM because the Veteran reported that the loss of ROM is variable depending on how strenuously the joint is used. Further, at worst, the Veteran cannot move it at all due to pain. It was noted that the Veteran has no guarding or muscle spasm of the neck. There was no ankylosis of the spine. Under Correia, there was no objective evidence of pain when the neck is used in non-weight bearing. It was noted that passive ROM was the same as active ROM. The Board finds that the preponderance of the evidence is against a disability rating in excess of 20 percent for a neck condition. The complete medical record indicates forward flexion of the neck greater than 15 degrees. For example, at worst, forward flexion was to 30 degrees as noted in the May 2008 private treatment record. The Board acknowledges the Veteran attorney’s argument that the June 2017 VA examination failed to comply with Mitchell and Deluca because ROM during flare-ups was not described. Further, the June 2017 VA examination failed to comply with Correia because pain on both active and passive ROM, and in weight-bearing and non-weight-bearing positions was not described and/or tested. The Board agrees and places no probative value to the June 2017 VA examination; however, the March 2018 VA examination is compliant. As noted above, the March 2018 VA examination was “medically consistent with the Veteran’s statements describing functional loss during flare-ups.” Additionally, it was noted that passive ROM was the same as active ROM. Essentially, ROM performed during the examination is indicative of ROM during flare-ups and passive ROM; which adequately describes the functional loss due to flare-ups and passive ROM. Therefore, in conjunction with the remaining medical evidence, the Veteran’s neck condition remains to be best contemplated by the 20 percent criteria. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for a neck condition. In denying such a rating, 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 a disability rating in excess of 10 percent for a right knee condition is remanded. In the April 2019 JMPR, the parties agreed that the August 2018 Board decision warrants a remand for the Board to set forth an adequate statement of reasons or bases regarding whether a separate or higher disability rating is warranted under DC 5258 or 5259 for meniscal disabilities. In the November 2007 VA examination, a right knee medial meniscus tear was noted. Subsequently, in the August 2018 Board decision, it was determined that a separate rating was not warranted for a right knee meniscal disability. Additionally, in the June 2017 VA examination, it was noted that pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups but could not be describe in terms of ROM because not examined in this context. “Where the record does not adequately reveal the current state of the claimant’s disability, a VA examination must be conducted.” Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Here, none of the provided VA examinations addresses the November 2007 private medical record that notes a right knee medial meniscus tear. Also, the June 2017 VA examination is inadequate because a description of ROM during flare-ups was not provided as required under Sharp. Therefore, a remand is necessary for a new VA examination. 2. Entitlement to a TDIU prior to June 5, 2017, is remanded. The Veteran contends his neck condition prevents him from securing or following any substantially gainful employment. In the February 2018 VA 21-8940 TDIU application, he indicated that he has not worked since 1997. Further, all his employment was truck driving. Additionally, in the June 2017 VA examination, the VA examiner indicated that the Veteran neck condition impacts his ability to work. The VA examiner noted that occupational tasks requiring overhead work, driving, heavy lifting, grasping/gripping or repetitive/frequent head movements would not be suited for the Veteran’s due to his neck condition. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran has a 40 percent disability rating for radiculopathy, right upper extremity effective June 5, 2017; 30 percent for radiculopathy, left upper extremity effective June 5, 2017; 20 percent for a back condition effective February 8, 2006; 20 percent for a neck condition effective March 26, 2007; 20 percent for sciatic nerve, bilateral lower extremity effective June 5, 2017; 10 percent for a bilateral knee condition effective February 15, 2001; 10 percent for esophagitis effective February 15, 2001; and noncompensable ratings for a neck scar and left knee scar. Combined evaluation for compensation is 90 percent from June 5, 2017. Thus, the criteria for consideration of a schedular TDIU are met since June 5, 2017, but not for the entire appeal period for his neck condition. If the applicable percentage standards set forth in 38 C.F.R. § 4.16(a) are not met, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board is precluded from granting a TDIU on an extraschedular basis in the first instance and must refer the matter to the Director of Compensation Service for the initial adjudication. 38 C.F.R. § 4.16(b); Barringer v. Peake, 22 Vet. App. 242 (2008). The evidence suggests the Veteran is unable to work partly due to his neck condition. Thus, the Board finds that entitlement to a TDIU prior to June 5, 2017, is referred to the Director of Compensation Service for adjudication in the first instance. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate examiner to determine the current severity of his right knee condition. The entire claims file and a copy of this remand must be made available to the examiner for review. All pertinent symptomatology and findings must be reported in detail. The examiner must determine if the Veteran has a right knee medial meniscus tear, then address the symptomatology in the examination report. 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 the right knee condition alone and discuss the effect of the Veteran’s right knee condition 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 based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. The examiner is advised that a statement that the examination did not take place during a flare-up is not a sufficient rationale for inability to provide an opinion. 2. Refer the issue of entitlement to a TDIU prior to June 5, 2017, to the Director of Compensation Service for consideration pursuant to 38 C.F.R. § 4.16 (b). 3. If the claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran an opportunity to respond. The case should then be returned to the Board, if in order, for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, 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.