Citation Nr: 21000976 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 07-16 256 DATE: January 6, 2021 ORDER For the period from April 28, 2009 through April 28, 2010, entitlement to a 40 percent but no higher rating, for service-connected degenerative arthritis of the lumbar spine (low back disability), is granted. For the period since April 29, 2010, entitlement to a disability rating in excess of 20 percent for service-connected low back disability is denied. REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. During the period from April 28, 2009 through April 28, 2010, the Veteran’s low back disability manifested with painful motion resulting in forward flexion being reduced to 30 degrees or less; ankylosis of the thoracolumbar spine was not present. 2. Since April 29, 2010, the Veteran’s low back disability manifested with painful motion but with forward flexion greater than 30 degrees and no ankylosis of the thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 40 percent, but no higher, for service-connected low back disability have been met for the period from April 28, 2009 through April 28, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 2. The criteria for entitlement to a disability rating in excess of 20 percent for service-connected low back disability have not been met for the period since April 29, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2004 to June 2005. This matter comes before the Board of Veterans’ Appeals (Board) from May 2006 and June 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded in December 2011, September 2015, December 2016, and March 2018 and has since been returned to the Board for appellate review. Increased Rating for Low Back Disability Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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.”). Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula 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. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is 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 with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12 month period. By way of history, the Veteran is service-connected for degenerative arthritis of the lumbar spine, currently rated as 20 percent disabling effective June 16, 2005, as well as bilateral leg sciatic radiculopathy as due to his low back disability. This claim is on appeal after an April 2009 statement from the Veteran was interpreted as a claim for an increased rating for the low back disability, and the claim was subsequently denied by a June 2010 rating decision and appealed to the Board. The disability ratings assigned for radiculopathy are not presently before the Board. 1. From April 28, 2009 through April 28, 2010 During an October 2009 VA examination, range of motion testing was performed and showed, at worst, forward flexion to 30 degrees due to pain and pregnancy. There was no indication that limitation of motion due solely to the low back disability, as opposed to pregnancy, could be determined. In addition, the Veteran reported flare-ups of back pain resulting in additional limitation of motion. As such, the Board finds that forward flexion was limited to 30 degrees or less warranting a 40 percent disability rating. A higher rating requires ankylosis of the thoracolumbar spine, which is not shown in this case. Notably, the October 2009 examiner specifically found that ankylosis was not present. Since a 40 percent disability rating is the highest evaluation possible for limitation of motion, further consideration of functional loss due to pain under 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995) is not required. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). While the Veteran reported to a VA examiner in April 2010 that she was ordered to bedrest by an emergency room physician in November 2009, bedrest and treatment by a physician for a period of at least 6 weeks, as required for a higher rating, is not shown. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Thus, it is more beneficial to award a 40 percent rating for the orthopedic manifestations and a 20 percent rating for the right lower extremity radiculopathy during this period then to assign a single rating based on incapacitating episodes. 2. Since April 29, 2010 During an April 2010 VA examination, range of motion testing was performed and showed, at worst, forward flexion to 55 degrees. The Veteran reported having flare-ups which mostly consisted of pain and difficulty with ordinary activity as a result of the pain. During an April 2017 VA back examination, range of motion testing was performed and showed normal/full range of motion. According to the examiner, pain, weakness, fatigability and incoordination would not significantly limit functional ability with repeated use over a period of time. The Veteran reported having flare-ups of back pain during colder weather. When asked about functional impairment, she did not describe additional limitation of motion. The examiner indicated an estimated range of motion during flare-up could not be provided without speculation as direct observation was not possible and estimation without direct observation was not feasible as the Veteran attributed her problems both to back symptoms and increased mood and “agoraphobia” during colder weather. The Board finds this an acceptable explanation as to why an estimation could not be provided. The Board recognizes that in August 2017 the Veteran took issue with the April 2017 findings, to include by noting that other testing has never showed normal range of motion. The examination findings were considered by the Board with the Veteran’s statements and the other evidence, none of which shows thoracolumbar ankylosis or forward flexion limited to 30 degrees as would be required for a higher rating during this period. The Veteran was afforded an August 2018 VA examination, where range of motion testing was performed and showed, at worst, forward flexion to 70 degrees. The Veteran described flare-ups as “having constant shooting sharp pain with stiffness.” When asked about functional impairment, she did not describe additional limitation of motion. No opinion was offered regarding estimation of range of motion after repetitive use over time or during flare-up. The Veteran was again afforded a VA examination in April 2019. Regarding flare-ups, she reported that when the weather is cold or damp the pain gets worse. Range of motion testing was performed, to include after repetitive use, and the examiner estimated range of motion during flare-up and after repetitive use over time. At worst, range of motion was estimated at 80 degrees of forward flexion with a combined range of motion of 180 degrees. The other evidence of record is not in significant conflict with the examination findings. After a careful review of the evidence, the Board finds that the criteria for more than a 20 percent rating for the Veteran’s low back disability are not met during this period. The evidence as discussed above shows forward flexion of the thoracolumbar spine to greater than 30 degrees and that the Veteran does not have ankylosis of the thoracolumbar spine. In this case, the Board finds the examinations adequate for rating purposes and that a higher disability rating is not warranted based on limitation of motion even when considering the functional effects of pain to include during flare-ups and after repetitive use over time. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners. The reports do not suggest that the findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. To this end, the Veteran has identified flare-ups of varying severity and frequency, although she has not described any additional limitation of motion during this period nor has she provided specific information about how far she can bend. The April 2019 examiner estimated range of motion during flare-up and repetitive use over time and that estimate reflected a range of motion much better than would be required for a 40 percent rating. The Veteran has at times asserted her back disability continues to worsen and has not suggested it has improved to any significant degree during the appeal period. Thus, the April 2019 estimate is the most probative evidence as to range of motion. Notably, the estimate was made after diagnostic testing, review of the record, and interview of the Veteran. Simply put, no competent evidence shows limitation of thoracolumbar flexion to 30 degrees or less; instead, multiple reports show or suggest range of motion much greater than that. There is no medical documentation of treatment and bedrest prescribed by a physician for incapacitating episodes of IVDS during this period. Based on the foregoing, the Board concludes that the symptoms associated with the Veteran’s low back disability do not more nearly approximate the criteria for a 40 percent disability evaluation and an increased rating is denied for this period. 3. Neurological Manifestations As noted above, the ratings assigned for the Veteran’s bilateral lower extremity radiculopathy are not before the Board. The Board finds that a separate rating for left lower extremity radiculopathy was not warranted prior to October 2, 2014, the current effective date of service connection for that disability. Likewise, the Board finds that there are no other neurological manifestations of the Veteran’s low back disability warranting separate disability ratings. During the October 2009 examination, no neurological manifestations of the low back disability were identified. Lower extremity strength, reflex, and sensory testing was normal. During the April 2010 examination, no neurological manifestations of the low back disability were identified. Lower extremity reflex and sensory testing was normal, and strength was 4/5. The April 2017, August 2018, and April 2019 examiners identified no neurological manifestations other than the already service-connected radiculopathy. There is no competent evidence in significant conflict with these findings and the Board finds the examination reports to be highly probative as they are based on diagnostic testing accepted in the medical community as well as consideration of the Veteran’s reports regarding symptomatology. REASONS FOR REMAND Service connection for right hip disability Service treatment records suggest that the Veteran had a stress fracture of her right hip after an injury during jump school in 2004 with subsequent reports of ongoing hip pain. In June 2004, she was assessed with right hip adductor tendinitis. A September 2004 x-ray of the right hip showed no fracture. An October 2004 x-ray of the right hip was negative. In January 2005, after reporting right hip pain, it was noted the Veteran was on a profile for hip fracture. During the March 2005 separation examination, evaluation of the lower extremities was abnormal with notation to right leg weakness and the Veteran being tender to palpation of the right pelvis. In a corresponding report of medical history, the Veteran reported fracturing her right hip in Airborne school. The examining practitioner noted a stress fracture of the right hip with continuing physiotherapy and the Veteran having been on crutches previously. The Veteran reported for a series of VA examinations in May 2006. She relayed that she was told during service that she dislocated her right hip after a hard fall during training. She also reported a left hip stress fracture during basic training. After examination, the diagnosis was “Status post right hip dislocation as reported by the Veteran with no clinical confirmation noted [in the file]; no residual arthritis per X-rays of [October 2004].” After examination in October 2014, a VA examiner provided historical diagnoses of right hip stress reaction and adductor tendinitis in 2004. After examination in April 2017, a VA examiner determined that the Veteran had a bilateral hip stress reaction in 2004 that resolved with no residuals and that the hip complaints during service were due to stress reaction and radiculopathy from her low back. The examiner noted that a recent MRI in December 2015 showed no mass on the right hip. The examiner opined the current complaints were related to her service-connected fibromyalgia. In August 2018, a VA examiner diagnosed myofascial pain syndrome. The Board notes the Veteran is service-connected for fibromyalgia. The examiner also noted a diagnosis of right hip strain. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner explained that there was a right hip series done in May 2006 regarding the claim of hip pain based on the Veteran’s report of right hip dislocation. There was no confirmation of dislocation or reduction in the Veteran’s medical file. The examiner noted that no other hip condition was documented until the bilateral hip series x-rays in 2013 and 2014, at which point the x-rays were negative for hip issues. However, MRI in 2014 revealed an ovoid structure at the obturator internus with a differential diagnosis of myxoma, ganglion cyst, small lymphangioma or a benign peripheral nerve sheath cyst, per radiology report. The 2015 MRI revealed similar findings but a larger 1.6 cm ovoid structure with the same stated differential. The examiner however, ultimately stated that even with the MRI results, there is still no documentation of an on-going right hip condition while in the military. The Board finds the August 2018 medical opinion incomplete. The examiner reports post-service findings related to the right hip but does not sufficiently address the Veteran’s reports of ongoing hip symptomatology since service. Another medical examination and opinion is necessary. Service connection right knee disability Service treatment records show reports of leg pain, knee grinding/crepitus, and knee pain during service. During the March 2005 separation examination, evaluation of the lower extremities was abnormal with notation to right leg weakness and the Veteran being tender to palpation of the right pelvis. In a corresponding report of medical history, the Veteran reported having knee trouble and explained that she had a deformed knee due to an injury during Airborne school. She did not identify which side. The Veteran reported for a series of VA examinations in May 2006. The Veteran relayed that during service she had a hard fall, injuring her right hip, with the right side of her body taking most of the impact. X-rays were performed for the examination but did not show any fracture or significant arthritis. After examination in October 2014, a VA examiner provided a historical diagnosis of right knee strain in 2004; no current right knee disability was diagnosed. After examination in April 2017, a VA examiner determined the Veteran had a right knee strain during service that resolved without residual. The examiner opined it was less likely than not that the Veteran had a current right knee disability related to her military service. The examiner explained that after reviewing the evidence, to include service records and diagnostic testing results, as well as examination and interview of the Veteran, any right knee strain in service had resolved. The examiner found it significant that the Veteran reported decreased knee pain after weight loss and that x-rays were normal. The examiner also opined that her complaints of pain were likely due to her fibromyalgia. In August 2018, a VA examiner diagnosed right knee strain. The examiner opined that the claimed right knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner explained that while the Veteran has a right knee strain there was no right knee condition found while in service. The examiner appears to attribute the Veteran’s in-service right lower extremity tingling and numbness to her already service-connected right lower extremity radiculopathy from her low back disability. Overall, VA examiners did not identify a post-service knee disability prior to the August 2018 examination. Instead, her complaints of knee pain were attributed to her service-connected fibromyalgia. Importantly, while two VA examiners previously indicated the Veteran had a right knee strain during service, the October 2018 examiner, who diagnosed a current right knee strain, provided a negative nexus opinion based on there being no right knee condition during service. This finding seems to contradict service treatment records showing right lower extremity complaints other than tingling and numbness, such as right knee grinding in October 2004, as well as right knee pain and crepitus after right side trauma during a fall. The most recent medical opinion does not appear to take into account all of the service records. Remand is required for another examination and opinion. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to her right hip and right knee disabilities. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of the right hip onset during service or is otherwise related to an in-service injury, event, or disease, to include the multiple in-service complaints of hip pain and assessments suggesting right hip stress fracture and adductor tendinitis. In offering the opinion, the examiner should discuss the Veteran’s report of ongoing right hip symptomatology since injury during service. It is noted the Veteran also has fibromyalgia. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 3. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of the right knee onset during service or is otherwise related to an in-service injury, event, or disease, to include in-service complaints of right knee grinding, pain, and crepitus. The examiner is asked to comment on whether the Veteran had an in-service right knee strain. Previous examiners have come to opposite conclusions on this point. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. J. Kim, 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.