Citation Nr: 21062817 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-40 489 DATE: October 12, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for the service-connected degenerative arthritis of the thoracolumbar spine (also claimed as back disability) prior to November 25, 2019 and in excess of 20 percent from November 25, 2019, is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for the service-connected right knee degenerative arthritis is remanded. FINDINGS OF FACT 1. Prior to November 25, 2019, the Veteran's service-connected back disability was not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks during any 12 month period. 2. From November 25, 2019, the Veteran's service-connected back disability has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks during any 12 month period. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for the service-connected back disability prior to November 25, 2019 and in excess of 20 percent on November 25, 2019 and thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.71a, Diagnostic Code (DC) 5010-5242. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from January 1989 to June 1993, and from February 1996 to February 2016. This matter was previously remanded by the Board of Veterans' Appeals (Board) in May 2019 for further evidentiary development. In a July 2020 rating decision, the Regional Office (RO) increased the Veteran's rating from 10 percent to 20 percent disabling for his service-connected back disability, effective November 25, 2019. As 20 percent is not the highest rating possible for this disability, this issue remains on appeal at the Board. An initial rating in excess of 10 percent for the service-connected back disability prior to November 25, 2019 and in excess of 20 percent on November 25, 2019 and thereafter Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings shall be applied, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran believes that his service-connected back disability is more severe than is currently evaluated. This disability is currently rated under DC 5010-5242. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. As stated above, the RO granted a higher rating of 20 percent, effective November 25, 2019 for the Veteran's back disability. However, as higher and separate ratings are available, the increased rating claim remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. The Board is allowed to consider these changes, although the RO has not yet done so. 38 C.F.R. § 20.904(d)(2) (remand to the AOJ is not necessary for consideration of law not already considered by the AOJ, including regulations). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the recent amendment, DC 5242 provided criteria for degenerative arthritis of the spine, referencing DC 5003. As of February 7, 2021, the amended version of DC 5242 provides criteria for degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome, and references DC 5003 and 5010. Regardless, both versions of the regulations instruct that DCs 5235 to 5243 to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Under either version of the General Rating Formula, a 20 percent disability rating is assigned for forward flexion of the lumbar spine greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the lumbar 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 disability rating is assigned for forward flexion of the lumbar spine 30 degrees or less; or, favorable ankylosis of the entire lumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire lumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Additionally, Note 1 following the General Rating Formula specifies that any associated objective neurologic abnormalities including but not limited to bowel or bladder impairment are to be separately evaluated under an appropriate DC. Note 2 following the General Rating Formal provides that normal forward flexion of the lumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. See 38 C.F.R. § 4.71a, DCs 5235 through 5242. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note 1 following the Formula for Rating IVDS specifies that 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. See 38 C.F.R. § 4.71a, DC 5243. With regards to the DC 5003 referenced in DC 5242, the pre-amended version provides criteria for degenerative arthritis (hypertrophic or osteoarthritis), while the amended version provides criteria for degenerative arthritis, other than post-traumatic. However, the rating criteria itself remains the same. As for DC 5010, the pre-amended version provides criteria for arthritis due to trauma, substantiated by x-ray findings and instructs that it be rated as degenerative arthritis. The amended version of DC 5010 provides criteria for post-traumatic arthritis, and instructs that it rate as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Prior to November 25, 2019 At a March 2016 VA examination, the Veteran did not report flare-ups or functional loss or impairment of the back. Initial range of motion testing revealed forward flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 25 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Pain was noted on left lateral flexion and rotation but did not result in functional loss. There was no evidence of pain on weight-bearing and the Veteran reported mild tenderness on the left lumbar paraspinous musculature. Repetitive use testing and repeated use over time testing revealed no additional loss of function or pain, weakness, fatigability, or incoordination that significantly limited functional ability. No response was provided regarding flare-ups. Localized tenderness was present but did not result in abnormal gait or abnormal spinal contour. Additional factors contributing to the Veteran's back disability included disturbance of locomotion and reports of low back pain exacerbated by bending forward. Muscle strength testing was normal and reflex examination revealed hypoactivity of the right knee. There was no evidence of radicular pain, ankylosis, neurologic abnormalities, or intervertebral disc syndrome (IVDS). VA treatment notes show complaints of back pain but not complete range of motion findings. Specifically, throughout these records, the Veteran complains of back tenderness. Given the above, prior to November 25, 2019, the Veteran's back disability did not result in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Despite the pain, he was able to forward flex to 90 degrees, even after repetition. There is also no evidence that this disability had been manifested by 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 Veteran is competent to give evidence about observable symptoms such as low back pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, the objective evidence fails to show that he had the necessary limitation of range of motion to warrant a higher 20 percent rating. Thus, a higher rating based on limitation of motion is not warranted. There is also no evidence that the Veteran's back disability resulted in IVDS with incapacitating episodes having a total duration of at least 2 weeks during any 12 month period. The Veteran did not report having incapacitating episodes at the examination, and the other medical evidence of record does not show any such episodes. Thus, a higher rating based on incapacitating episodes is not warranted. Moreover, no neurological deficit, including bowel or bladder deficiencies, has been shown to be associated with the service-connected low back disability. Separate compensable ratings based on such associated problems are not warranted. Accordingly, the Board concludes that a disability rating greater than 10 percent prior to November 25, 2019 for the service-connected back disability is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). On November 25, 2019 and thereafter Pursuant to the May 2019 Board remand, the Veteran was afforded VA examination in November 2019. The Veteran reported flare-ups described as constant pain to the lower back with radiation to the right leg. He also reported function loss described as limitation with physical activity if he needs to move boxes at his office job. Initial range of motion revealed forward flexion to 45 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, and bilateral lateral rotation to 20 degrees, with pain on all ranges of motion tested. Limited range of motion with increased pain during lifting and bending over caused functional loss. There was evidence of pain with weight-bearing and pronounced tenderness to palpation to the paralumbar bilateral paraspinals muscles on multiple levels in his lumbar spine. Observed repetitive use testing revealed no additional loss of function or range of motion after three repetitions. Repeated use over time testing revealed pain, weakness, and lack of endurance that significantly limited functional ability. The examiner found that range of motion would be the same as on initial range of motion testing. As the examination was not conducted during a flare-up, the examiner did annotate that the examination is medically consistent with the Veteran's statements describing functional loss during flare-ups. The examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. The Veteran had muscle spasm not resulting in abnormal gait or abnormal spinal contour and had guarding resulting in abnormal gait ar abnormal spinal contour. Muscle strength testing was normal, the Veteran did not have muscle atrophy, and there was no evidence of ankylosis or IVDS. Upon reflex examination, he had a hyperactive without clonus right knee and hypoactive bilateral ankles. There was evidence of radiculopathy of moderate intermittent pain and moderate paresthesias and weakness of the right leg. Given the above, from November 25, 2019, the Veteran's back disability has not resulted in forward flexion of the thoracolumbar spine to 30 degrees or less. Despite the pain, he was able to forward flex to at least 45 degrees, even after repetition. Even the examiner's estimated range of motion with repeated use over a period of time revealed forward flexion to 45 degrees. There is also no evidence of ankylosis. Thus, even considering functional loss due to pain and other factors, the Veteran's back disability has not more nearly approximated forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The evidence of record simply does not support such findings. Again, the Veteran is competent to give evidence about observable symptoms such as low back pain. Layno, 6 Vet. App. 465. However, the objective evidence fails to show that he has the necessary limitation of range of motion to warrant a higher 40 percent rating. A higher rating based on limitation of motion is not warranted. Additionally, there is no evidence that Veteran had IVDS anywhere throughout the record. Thus, a higher evaluation based on IVDS is not warranted. The Board acknowledges that, during this portion of the appeal period, service connection for radiculopathy of the right lower extremity was granted and a 10 percent evaluation was awarded to this disability. The Veteran has not expressed disagreement with that rating. Moreover, as no other neurological deficit, including bowel or bladder deficiencies, has been shown, separate compensable ratings based on such associated problems are not warranted. Accordingly, the Board concludes that a disability rating greater than 20 percent from November 25, 2019 for the service-connected low back disability is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Initial rating in excess of 10 percent for the service-connected right knee degenerative arthritis Pursuant to the Board's May 2019 remand, the Veteran was afforded a VA examination in November 2019. He did not report flare-ups of his right knee but described functional loss as occasional pain on ambulation and lifting boxes at work. Initial range of motion revealed flexion to 110 degrees with pain, and extension to 0 degrees. There was pain on weight bearing and objective evidence of localized tenderness or pain on palpation of joint or associated soft tissue and crepitus. Repetitive use testing revealed no additional functional loss or range of motion. Repeated use over time revealed no pain, weakness, fatigability, or incoordination that significantly limited functional ability. The examiner noted interference with standing as an additional contributing factor of the disability. There was no evidence of reduction in muscle strength, and the Veteran had no muscle atrophy or ankylosis. The examiner noted objective evidence of pain on passive range of motion testing, however, did not provide range of motion measurements in accordance with VA requirements. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. In this regard, the Board finds that the May 2019 VA examination is inadequate. Specifically, after indicating objective evidence of pain on passive motion, the examiner failed to document range of motion measurements on passive motion, or at the least, explain why such measurements were not provided. This amounts to only a cursory consideration of Correia and that such renders the examination inadequate for rating purposes. See Stegall, 11 Vet. App. at 271. Thus, remand is necessary to afford the Veteran a new examination. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current severity of his service-connected right knee degenerative arthritis. The entire claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished. All clinical findings found on examination to be associated with these disabilities must be reported in detail, to include, but not limited to, any limitation of motion of the Veteran's right knee. The examiner should test the range of motion and pain in the Veteran's right knee in active and passive motion and in weight-bearing and nonweight-bearing and should provide the range of motion measurements, in degrees, for such testing using a goniometer. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. Also, the examiner should describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and after repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of the pain, the examiner must opine as to whether there would be additional limits on functional ability during flare-ups. All loses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer any such opinion without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information i.e. frequency, duration, characteristics, severity, or functional loss regarding the Veteran's flare-ups by alternative means. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.