Citation Nr: 21003030 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 13-36 026 DATE: January 19, 2021 ORDER Entitlement to an increased rating in excess of 20 percent for traumatic fibromyositis of the lower back prior to December 24, 2013 is denied. Entitlement to an increased rating in excess of 40 percent for traumatic fibromyositis of the lower back since December 24, 2013 is denied. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity is denied. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity is denied. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDINGS OF FACT 1. Prior to December 24, 2013, even considering his complaints of pain and functional loss, forward flexion in the Veteran’s thoracolumbar spine functionally limited to 30 degrees or less was not shown; ankylosis of the thoracolumbar spine was not shown; and the Veteran was not prescribed bed rest to treat his lumbar spine disability. 2. From December 24, 2013, ankylosis of the thoracolumbar spine is not shown; and the Veteran is not prescribed bed rest to treat his lumbar spine disability 3. The preponderance of the evidence of record reflects that the Veteran’s left lower extremity radiculopathy was productive of no more than moderate symptomology. 4. The preponderance of the evidence of record reflects that the Veteran’s right lower extremity radiculopathy was productive of no more that moderate symptomology. CONCLUSIONS OF LAW 1. Prior to December 24, 2013, the criteria for an initial schedular rating in excess of 20 percent for traumatic fibromyositis of the lower back have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243. 2. From December 24, 2013, the criteria for a schedular rating in excess of 40 percent for traumatic fibromyositis of the lower back have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243 3. The criteria for entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8520. 4. The criteria for entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1982 to March 1984. The Board remanded the claims on appeal for evidentiary development in October 2015, October 2016, October 2017, and most recently, in March 2019. The Board finds there has been substantial compliance with the remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran’s January 2020 claim for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was granted in the October 2020 rating decision effective September 1, 2019. The Veteran has not appealed the effective date granted, therefore that issue is not on appeal before the Board. Lastly, the record reflects that Puerto Rico Public Advocate for Veterans Affairs is the Veterans Service Organization (VSO) currently recognized by VA as the Veteran’s authorized VA claims representative for all matters pending before VA. However, the Virtual VA electronic record contains a more recent VA Form 21-22 appointing Disabled American Veterans (DAV) as the Veteran’s representative. If accepted by VA, this VA Form 21-22 would automatically revoke Puerto Rico Public Advocate for Veterans Affairs’ representation of the Veteran; however, it does not appear that VA has acknowledged or accepted this VA Form 21-22. The matter is therefore referred to the AOJ for appropriate action; and, in the absence of further clarification, the Board will continue to recognize Puerto Rico Public Advocate for Veterans Affairs as the Veteran’s authorized representative. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 1. Entitlement to an increased rating in excess of 20 percent for traumatic fibromyositis of the lower back prior to December 24, 2013 2. Entitlement to an increased rating in excess of 40 percent for traumatic fibromyositis of the lower back since December 24, 2013 Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less; or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is 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. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. 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). The Veteran’s medical records show he is treated for his lumbar spine disability; however, his medical records do not show findings consistent with ratings in excess of those assigned. In November 2011, the Veteran was afforded a VA examination. He reported his worsening back pain radiating to his lower extremities. He also reported managing pain with anti-inflammatory medications and analgesics and denied bowel problems While the Veteran reported dribbling during urination and nocturia, he denied Foley placement. The VA examiner indicated that there were no neurologic abnormalities or findings related to the spine disability such as bowel or bladder problems. The also reported having flare-ups requiring him to lay down but acknowledged that such episodes had not occurred in the ten years prior. On examination, the Veteran demonstrated forward flexion to 70 degrees with painful motion beginning at 70 degrees. The Veteran performed repetitive testing without additional loss of range of motion. The examiner indicated that the Veteran did not have ankylosis. He had less movement than normal and pain on movement. Tenderness to palpation was shown and the Veteran was noted to have guarding and/or muscle spasm present which did not result in abnormal gait or spinal contour. The Veteran was afforded another VA examination in December 2015. At that time the Veteran reported of constant low back pain again radiating to the lower extremities. The Veteran reported that he stays home all day when he has flare-ups and reported functional impairment in dressing/undressing lower part of his body. On examination, he demonstrated forward flexion to 40 degrees and pain on motion. Following repetitive motion, the Veteran’s forward flexion was limited to 30 degrees and pain was noted to cause functional loss. The Veteran was noted to have muscle spasm, localized tenderness, and guarding; neither of which resulted in abnormal spinal contour. The examiner indicated that the Veteran did not have ankylosis nor bladder or bowel incontinence. The examiner observed that the Veteran had IVDS and he reported that episodes of acute signs and symptoms due to IVDS required bed rest prescribed by a physician of at least two weeks but less than four weeks during the prior 12 months based on medical history described by the Veteran without documentation. It was noted that he regularly used a cane. The examiner reported regarding the Veteran’s functional impact that he was to avoid heavy lifting or carrying objects of no more than 15 pounds. According to the December 2016 VA examination report, the Veteran complained of daily lower back pain that flares up with prolonged standing/sitting, and heavy lifting. On examination, he demonstrated forward flexion to 30 degrees and pain on motion. The Veteran performed repetitive testing without any additional loss of range of motion and was noted to have localized tenderness. It was noted that the Veteran’s muscle spasm and guarding resulted in abnormal gait or spinal contour. The examiner indicated that the Veteran did not have ankylosis. The examiner also indicated that the Veteran did not have bladder or bowel incontinence. The examiner observed that the Veteran had IVDS and the Veteran reported that episodes of acute signs and symptoms due to IVDS required bed rest prescribed by a physician of at least two weeks but less than four weeks during the prior 12 months. It was noted that he regularly used a brace and constantly used a cane. The Veteran was afforded another VA examination in December 2017. At that time the Veteran reported having daily flare-ups and reported functional impairment in loss of stooping and ambulation tolerance. On examination, he demonstrated forward flexion to 25 degrees and pain on motion. Following repetitive motion, there was no additional loss of function or range of motion. The Veteran was noted to have muscle spasm, localized tenderness, and guarding; neither of which resulted in abnormal spinal contour. The examiner indicated that the Veteran did not have ankylosis, bladder or bowel incontinence, or IVDS. Pursuant to the Board’s March 2019 remand, the Veteran was last afforded a VA examination in February 2020. At that time, the Veteran complained of persistent pain radiating to the legs. He also reported having attacks of pain lasting days and that he could not run, stand or sit for long periods, walk long distances, bend, stoop, or squat and that he has difficulty with lifting and carrying. Upon examination, forward flexion was to 90 degrees. The examiner observed that there was pain on exam which did not result in functional loss. There was localized tenderness and pain with weight bearing but no muscle spasm or guarding. Following repetitive motion, there was no additional limitation of range of motion. However, the examiner opined that pain would limit functional ability with flare-ups to 45 degrees of flexion. There was no ankylosis nor associated bowel or bladder problems. There was objective evidence of pain when the back was used in non-weight bearing. Passive range of motion was noted to be the same as active range of motion. Regarding the Veteran’s lumbar spine disability prior to December 24, 2013, the Veteran did not demonstrate limitation of flexion or consistent with a 40 percent rating. At the 2011 VA examination, he retained flexion in excess of 30 degrees, even when considering repetitive use. The medical record does not demonstrate findings consistent with a higher 40 percent evaluation, and as such, a rating in excess of 20 percent is not warranted. In reaching this conclusion, the Board has considered whether a higher disability evaluation was warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 prior to May 8, 2018. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Indeed, when § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Here, while the Veteran had pain on flexion, his lumbar spine pain did not result in additional limitation of flexion. In addition, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id., at 43; see also 38 C.F.R. § 4.40. In this case, the November 2011 VA examiner indicated that repetitive use testing did not result in any additional limitation of flexion. Furthermore, the Veteran’s medical record does not demonstrate functional limitation from pain or other source that would effectively limit his forward flexion to 30 degrees or less prior to December 24, 2013. The Board has also considered whether a higher rating is warranted pursuant to the criteria for rating IVDS. According to the November 2011 VA examination report, the examiner noted the Veteran did not have IVDS and did not report having incapacitating episodes. Regarding the Veteran’s lumbar spine disability from December 24, 2013, the medical evidence does not show ankylosis of the spine. The December 2015, 2016, 2017, and February 2020 VA examiners indicated that the Veteran did not have ankylosis of the spine. The Veteran’s medical records do not document ankylosis of the spine. As such, a rating in excess of 40 percent is not warranted. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, 8 Vet. App. 202. However, from December 24, 2013 the Veteran is in receipt of the maximum rating allowed based on range of motion. The only higher ratings available contemplate ankylosis of the spine. Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). The Board has also considered whether a higher rating is warranted pursuant to the criteria for rating IVDS; however, a higher disability rating is not warranted under the formula for IVDS based on incapacitating episodes, as the evidence reflects that the Veteran did not have incapacitating episodes having a total duration of at least 6 weeks during a 12 month period. As such, the schedular criteria for a higher rating have not been met for the rating period from December 24, 2013. Accordingly, the criteria for an initial schedular rating in excess of 20 percent prior to December 24, 2013, and in excess of 40 percent afterwards, for the Veteran’s lumbar spine disability have been not been met, and the claim is denied. 3. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity 4. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity The Veteran’s bilateral lower extremity peripheral neuropathy is rated under DC 8520 for impairment of the sciatic nerve. Under DC 8520, a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve; and a 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. 38 C.F.R. § 4.124a, DC 8520. A maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, there is no active movement possible of muscles below the knee, and where flexion of the knee is weakened or (very rarely) lost. Id. VA examination and treatment records reflects that the Veteran reported consistently radiating pain down his lower extremities. According to the November 2011 VA examination report, the Veteran had normal strength (5/5) in the lower extremities and no muscle atrophy. Reflexes in the knees and ankles were noted to be 2-. Sensory exam revealed decreased sensation to light touch except the upper anterior right thigh which was normal. Straight leg raising test was negative bilateral. The Veteran was noted to have moderate constant pain and numbness in the bilateral lower extremities. The examiner described the Veteran’s sciatic radiculopathy as moderate. According to the December 2015 VA examination report, muscle strength and reflexes were normal. Sensory exam findings showed decreased light touch sensation to the lower legs/ankles and foot/toes. The examiner also indicated that the Veteran had moderate intermittent pain and numbness in the lower extremities. There was no muscle atrophy. During the December 2016 VA examination, ankle dorsiflexion and great toe extension were rated as 4 out of 5; muscle strength was otherwise normal. Light touch sensation was decreased in the lower legs/ankles and foot/toes. The Veteran was noted to have moderate constant pain, paresthesias and/or dysesthesias, and numbness in both lower extremities. In December 2017, motor and sensory exam findings were normal except for decreased lower leg/ankle and foot/toes testing. Straight leg raising testing was positive and he was noted to have mild paresthesias and/or dysesthesias and numbness. The examiner described the Veteran’s sciatic radiculopathy as mild. The most recent VA examination in February 2020 reflect normal muscle and sensory testing. Reflexes were hypoactive in the ankles and the Veteran was noted to have moderate constant pain. The examiner indicated that the Veteran had moderate radiculopathy of the femoral nerves. After careful consideration of the relevant evidence, the Board finds that the disability ratings in excess of 20 percent are not warranted during the appeal period. The Board finds that the preponderance of the evidence of record reflects that the Veteran’s bilateral lower extremity peripheral neuropathy was productive of, at most, moderate symptomology. The Veteran has consistently had moderate symptomatology in his bilateral lower extremities during each of the VA examinations. He has been observed to have some decreased strength, decreased sensation, moderate pain, numbness and dysesthesias and/or paresthesias. At no point during these examinations was greater than moderate symptomology reported and was described as mild in the December 2017 VA examination report. Although the February 2020 VA examiner is indicated that the femoral nerves were impacted and not the sciatic nerves, a higher rating is not warranted. If the femoral nerve is involved, under DC 8526; a 20 percent rating is warranted for moderate incomplete paralysis; a 30 percent rating is warranted for severe incomplete paralysis; and a 40 percent rating is warranted for complete paralysis. 38 C.F.R. § 4.124a. To receive a higher rating, the evidence must demonstrate moderately severe incomplete paralysis of the sciatic nerve or severe incomplete paralysis of the femoral nerve. Here, the objective medical evidence does not indicate that the Veteran experienced significant motor loss or atrophy, rather the Veteran had impaired sensation. Accordingly, the Board finds that a rating in excess of 20 percent is not warranted for radiculopathy of the sciatic or femoral nerves. Thus, the Board finds that disability ratings in excess of 20 percent for bilateral lower extremity radiculopathy are not warranted. Accordingly, the criteria for an initial schedular rating in excess of 20 percent have been not been met, and the claims are denied. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disability is remanded. 2. Entitlement to service connection for a right shoulder disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. 4. Entitlement to service connection for a right knee disability is remanded. 5. Entitlement to service connection for a left ankle disability is remanded. 6. Entitlement to service connection for a right ankle disability is remanded. Regarding the service connection claims on appeal, remand is warranted for a supplemental medical opinion. In March 2019, the Board remanded this claim, in part, to afford the Veteran a new medical opinion regarding direct service connection for the claims following receipt of requested outstanding medical records. The examiner was explicitly requested to consider the Veteran’s service treatment records and specific post-service records. VA treatment records from 1989 were obtained. Although only a portion of the requested records were available, the Veteran agreed to have a decision based on the available evidence of record. However, as opinions as to direct service connection were not provided, the Board finds that there has not been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). New VA examinations and opinions were obtained in February 2020. However, the opinions only addressed secondary service connection. Thus, remand is warranted for a supplemental medical opinion. The Board also notes that the rationale regarding aggravation of the shoulder disabilities relates to causation and does not exclaim why the claimed shoulder disabilities are not aggravated by the service-connected back disability and/or lower extremity radiculopathies. Additionally, no opinion regarding aggravation was provided regarding the right knee, although the opinion for the left knee was stated twice. Thus, the opinions are inadequate and addendum opinions are warranted on remand. The matters are REMANDED for the following actions: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bilateral shoulder disabilities, bilateral knee disabilities, or bilateral ankle disabilities are at least as likely as not (50 percent or greater probability) related to the Veteran’s active duty service, to specifically include the Veteran’s documented in-service parachute accident and fall from a truck. The examiner must also specifically address: Service treatment records pertaining to a September 1982 right foot injury; service treatment records pertaining to a 1983 lumbar spine compression fracture resulting from a parachute jump injury; April 1983 service treatment record documenting a fall from a truck; January 1985 Veteran reports of injury; a June 1986 notation of “musculoskeletal pain” status post in-service L1-L2 compression fracture; the 1989 VA treatment records including a July 1989 notation of pain and occasional swelling in both knees since parachute injury; and an article submitted by the Veteran in April 2016 titled “Degenerative Disease in Lumbar Spine of Military Parachuting Instructors”. Further, the examiner is asked to address the Veteran’s assertions regarding in-service incurrence of the claimed disabilities and any continuity of symptomatology. The examiner must also opine whether the Veteran’s bilateral shoulder disabilities, bilateral knee disabilities, or bilateral ankle disabilities are at least as likely as not (50 percent or greater probability) related to his service-connected low back disability or were aggravated beyond their natural progression by his service-connected low back disability.   If, and only if, determined necessary by the reviewing clinician, the Veteran should be scheduled for additional VA examination(s). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, 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.