Citation Nr: 21003566 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 15-35 466A DATE: January 22, 2021 ORDER Entitlement to an initial evaluation of 10 percent, but no higher, for spondylosis of the thoracolumbar spine for the period from November 1, 2011 to December 29, 2014 is granted. Entitlement to an evaluation in excess of 10 percent for spondylosis of the thoracolumbar spine the period beginning December 30, 2014 is denied. REMANDED Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, for the period from November 1, 2011 to December 29, 2014, the Veteran has had painful motion due to spondylosis of the thoracolumbar spine which was documented by X-ray findings. 2. For the entire period on appeal, the Veteran’s thoracolumbar spine condition did not result in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 10 percent, but no higher, for spondylosis of the thoracolumbar spine for the period from November 1, 2011 to December 29, 2014 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.40, 4.59, 4.71a, Diagnostic Codes 5003-5242 (2019). 2. The criteria for an evaluation of 10 percent for spondylosis of the thoracolumbar spine for the period beginning December 30, 2014 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.40, 4.59, 4.71a, Diagnostic Codes 5003-5242 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1991 to October 2011. This case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In May 2019, the Board remanded the matters for further development. Now the matters are returned to the Board. Increased rating Since the May 2019 Board remand order, the RO increased the Veteran’s disability rating for spondylosis of the thoracolumbar spine from 0 percent to 10 percent effective December 30, 2014. See August 2020 Rating Decision. However, as the highest possible rating for the disability has not been assigned, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2019). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Also, in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2019). Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (2019) (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45 (2019). The intent of Rating Schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2019). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2019). Otherwise, it will assign the lower rating. Id. Initially, the Board notes that the Veteran’s back disability is evaluated under Diagnostic Code 5239, which is for spondylolisthesis or segmental instability. However, as the evidence shows that the Veteran’s current disability involves arthritis of the thoracolumbar spine, the Board finds that Diagnostic Codes 5003 and 5242 for degenerative arthritis of the spine are more appropriate for evaluating her thoracolumbar spine disability. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2019). When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion; the limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. Id. Pursuant to Diagnostic Code 5242, degenerative arthritis of the spine, including spondylosis, is evaluated under General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, General Formula (2019). The Board will first examine whether the Veteran was entitled to an initial compensable rating for her thoracolumbar spine disability. The Board notes that the Veteran filed the service connection claim within one year from her separation and contended that she was experiencing back pain since service. The Veteran underwent her first VA examination for back conditions in September 2013, which was about two years after her filing the service connection claim. On September 2013 examination, the examiner reported that the Veteran’s X-ray shows mild spondylosis, i.e., arthritis, but her range of motion for thoracolumbar spine was all normal without objective evidence of painful motion. In that regard, the Veteran contends that the September 2013 examination was inadequate as the examiner did not conduct the range of motion testing and only instructed the Veteran to lie down to bend her knee against her chest, and did not acknowledge her screaming while doing the motion. See January 2019 Hearing Testimony, at 5-6; see also September 2020 Lay statement from J.L. and B.L. (the Veteran’s parents stated that the Veteran has been experiencing back pain since service and the September 2013 examiner did not use measuring tool during the examination). The record does not show any other complaints or evaluations related to the Veteran’s thoracolumbar spine until December 30, 2014. Although the evidence of record does not show limitation of motion, in light of the Veteran’s September 2013 X-ray findings documenting arthritis and her competent and credible testimony of chronic back pain and painful motion since service, the Board resolves reasonable doubt in the Veteran’s favor and finds that the Veteran has had painful motion due to spondylosis of the thoracolumbar spine for the entire period on appeal. Thus, the Board finds that the Veteran’s entitlement to an initial evaluation of 10 percent, but no higher, for spondylosis of the thoracolumbar spine for the period from November 1, 2011 to December 29, 2014 is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.40, 4.59, 4.71a, Diagnostic Codes 5003-5242 (2019). Now the Board will examine whether an evaluation more than 10 percent should have been assigned for any period on appeal, including the period beginning December 30, 2014. During a mental health evaluation on December 30, 2014, the examiner noted the Veteran’s report of back pain. On December 2019 VA examination for back conditions, the examiner noted the Veteran’s diagnosis of mild spondylosis of the thoracolumbar spine. The Veteran reported that she experiences low back pain when she is on her feet for two hours or more, and her mid-back flares up when she is driving or has her arms up for an extended period of time. The Veteran stated that medication, breast reduction, or losing 50 pounds to assist with back pain did not help. The Veteran’s range of motion was measured at: forward flexion to 65 degrees; extension to 15 degrees; right and left lateral flexions to 30 degrees; and right and left lateral rotation to 30 degrees. Pain was noted during forward flexion and extension range of motion testing, but the examiner noted that the Veteran’s range of motion itself does not contribute to a functional loss. There was objective evidence of localized tenderness or pain on palpation along the thoracolumbar musculature and trapezius muscles. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion afterwards. The examiner noted that pain causes functional loss during a flare-up, but the examiner’s estimation of the Veteran’s range of motion during a flare-up was the same as the range of motion measurements noted during the examination. The examiner provided that the Veteran has guarding or muscle spasm of the thoracolumbar spine, but it does not result in abnormal gait or abnormal spinal contour. The Veteran did not have muscle atrophy, radicular pain or other signs of radiculopathy, or ankylosis of the spine. The examiner indicated that the Veteran does not have IVDS of the thoracolumbar spine. The examiner noted that arthritis is documented in the available imaging studies of the thoracolumbar spine. The examiner provided that the Veteran’s thoracolumbar spine condition does not impact her ability to work. Based on above, the Board finds that, for the entire period on appeal, the Veteran’s thoracolumbar spine condition did not result in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Consequently, the Board finds that the Veteran’s entitlement to an evaluation in excess of 10 percent for spondylosis of the thoracolumbar spine for the period beginning December 30, 2014 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.40, 4.59, 4.71a, Diagnostic Codes 5003-5242 (2019). REASONS FOR REMAND The Veteran is also seeking service connections for right and left knee conditions. However, the Board finds that additional development is necessary prior to final adjudication. Following the May 2019 Board remand, the Veteran underwent a VA examination for her knee conditions in December 2019. The examiner found the Veteran’s current diagnosis of bilateral knee tendonitis/tendinosis, but opined that her current condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. For the rationale of her opinion, the examiner provided that the findings on the examination is consistent with a strain, but an individual would typically have more than a strain if it was an injury from Airborne operations with 66 jumps as the Veteran contends. However, it is not clear to the Board whether the examiner intended to equate the term “strain” with the Veteran’s diagnosis of tendonitis/tendinosis noted in the examination report since the examiner failed to provide an explanation. Also, the Board notes the Veteran’s report of the in-service onset of her knee pain during a medical examination for retirement. See April 29, 2011 Report of Medical History. The Veteran reported that she was hit hard during a mass attack airborne operation in 1999 and had a bad parachute landing fall during which she blacked out, and has been having knee pain since then. Id. The Veteran’s competent report during the military retirement examination regarding the onset of knee pain is pertinent evidence in determining the etiology of her knee conditions, but the December 2019 examiner did not address this evidence when rendering the opinion. Also, the Veteran competently testified during the January 2019 hearing that she was taking Motrin 800mg for knee pain during service, but that testimony was also not considered by the examiner. Therefore, the Board finds that obtaining an addendum opinion is necessary in order to make a fully informed decision. Accordingly, the matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) must obtain an addendum opinion from the December 2019 VA examiner regarding the Veteran’s service connection claims for right and left knee conditions. If the December 2019 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. If the examiner determines that a new examination is necessary, the AOJ should schedule one for the Veteran. The examiner should review the Veteran’s claims file and a copy of this REMAND order before rendering the requested addendum opinion. (a.) The examiner is requested to provide a clarification of the Veteran’s current diagnosis as the term “strain” was used in the December 2019 opinion while the examination report indicates bilateral tendonitis/tendinosis as the Veteran’s current diagnosis. (b.) The examiner must opine whether the Veteran’s current bilateral knee condition is at least as likely as not (50 percent or greater probability) related to her service or had its onset in service. (c.) The examiner is specifically asked to consider the April 29, 2011 Report of Medical History in which the Veteran reported experiencing knee pain since the 1999 mass attack airborne operation where she had a bad parachute landing fall and blacked out. The examiner is also asked to consider the Veteran’s competent testimony of taking Motrin 800mg in service as treatments for knee pain. The examiner is advised that the Veteran is competent to report her symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. (d.) The examiner must provide a complete written rationale for any opinion offered. 2. After completing the above actions and any other necessary development, the issue on appeal must be readjudicated. If the claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. 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.