Citation Nr: 21063435 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-56 398 DATE: October 14, 2021 ORDER For the period prior to December 2, 2019, an increased 20 percent rating, but not higher, for lumbosacral strain is granted. For the period since December 2, 2019, a rating higher than 20 percent for lumbosacral strain is denied. REMANDED The issues of entitlement to increased ratings for left knee, right knee, and left ankle disabilities are remanded. FINDINGS OF FACT 1. Prior to December 2, 2019, the Veteran's lumbar spine disability was manifested by forward flexion limited to 40 degrees, but no worse. 2. At no time during the entire period on appeal has forward flexion of the lumbar spine been limited to 30 degrees or less, and favorable ankylosis of the thoracolumbar spine has not been shown. CONCLUSIONS OF LAW 1. Prior to December 2, 2019, the criteria for an increased 20 percent disability rating, but not higher, for lumbosacral strain are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10, 4.14, 4.2, 4.21, 4.25 4.40, 4.7, 4.71a, Diagnostic Code 5237. 2. Since December 2, 2019, the criteria for a disability rating in excess of 20 percent for lumbosacral strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10, 4.14, 4.2, 4.21, 4.25 4.40, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1969 to October 1978. These matters come to the Board of Veterans' Appeals (Board) on appeal from January 2013 and July 2013 rating decisions issued by the Department of Veterans' Affairs (VA) Regional Office in Nashville, Tennessee. In July 2019, the Board remanded the appeal for additional development. During the pendency of the Veteran's increased rating claim for his low back disability, a January 2021 rating decision increased the disability rating to 20 percent effective December 2, 2019, the date of a VA examination of the lumbar spine. Lumbar Spine Increased Rating The Veteran seeks an increased rating for his lumbar strain, which is rated as 10 percent disabling during the period prior to December 2, 2019, and 20 percent disabling thereafter. Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The criteria for rating all disabilities of the spine are set forth in 38 C.F.R. § 4.71a, which provides that spine disabilities are to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. In this case, the rating schedule for IVDS is inapplicable as the Veteran has not been diagnosed with IVDS. Thus, the General Formula for rating a disability of the spine applies and provides, as is relevant here, for a 20 percent rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is 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 higher 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Formula. Following a review of the record, the Board finds that for the period prior to December 2, 2019, a 20 percent rating is warranted for the Veteran's lumbosacral strain, as the evidence shows that, at times, the Veteran's lumbar spine was limited to more than 30 degrees but less than 60 degrees of forward flexion. In this regard, the December 2019 VA examiner opined that, with repeated use over time, the Veteran's lumbar spine forward flexion would be limited to at least 55 degrees and, consistent with that finding, an August 2012 private treatment record shows that forward flexion of the Veteran's lumbar spine was limited to 40 degrees. While a broader range of motion was shown at other times during the relevant period, the Board finds that the December 2019 VA examiner's opinion regarding additional limitation with repetitive use over time, combined with the objective finding of forward flexion limited to greater than 30 degrees but less than 60 degrees, supports entitlement to a 20 percent rating during the period prior to December 2, 2019. However, the Board finds that at no time is a rating higher than 20 percent warranted, as the evidence does not show forward flexion of the lumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5237, General Rating Formula. Instead, VA examinations in October 2012, October 2016, and December 2019 showed forward flexion of the lumbar spine limited to no worse than 60 degrees on examination, with estimated limitation to 55 degrees with repetitive use over time. Notably, the Veteran denied flare-ups and, repetitive use testing during those examinations did not result in additional loss of motion. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Clinical evidence is similarly silent for evidence of forward flexion of the lumbar spine limited to 30 degrees or less, or evidence of favorable ankylosis. On the contrary, while forward flexion was limited to 40 degrees in August 2012 as noted above, the record otherwise indicates that lumbar spine range of motion was full in November 2013 and limited to 70 degrees in February 2015. There is also no clinical evidence of flare-ups or additional functional loss related to the lumbosacral spine. Thus, the clinical evidence similarly does not support that the Veteran's lumbar spine disability has more nearly approximated forward flexion limited to 30 degrees or less, or favorable ankylosis of the thoracolumbar spine, at any time during the period on appeal. As a final matter, the record is silent for complaints or evidence of neurological complications associated with the Veteran's lumbar spine disability. Although there is a notation in a November 2013 VA physical therapy treatment note of low back pain with radiculopathy, the Board observes that the lower extremity complaints at that time related specifically to the left knee and left ankle disabilities. The remainder of the record is silent for diagnosis, findings, or complaints consistent with radiculopathy. VA examiners in October 2012, October 2016, and December 2019 expressly found no evidence of radiculopathy, noted straight leg raising to be negative, and indicated that the Veteran denied radicular symptoms. Clinical evidence is similarly silent for radicular complaints or findings. Thus, a separate rating is not warranted for neurological manifestations associated with the Veteran's lumbar spine disability. 38 C.F.R. § 4.71a, General Formula, Note (1). In short, the medical evidence of record does not reflect forward flexion of the lumbar spine limited to 30 degrees or less, or favorable ankylosis of the thoracolumbar spine. As entitlement to a higher disability rating turns on a showing of forward flexion limited to 30 degrees or favorable ankylosis of the thoracolumbar spine, a rating higher than 20 percent for the Veteran's lumbar spine disability is simply not warranted. REASONS FOR REMAND 1. The issue of entitlement to an increased rating for a left ankle disability is remanded. The Board finds that remand of the Veteran's left ankle increased rating claim is necessary for an additional examination to clarify the extent of the Veteran's current left ankle disability, as well as to address the extent of convalescence required following an August 2014 fusion surgery. In this regard, the evidence supports that, following an August 2014 left ankle fusion surgery, the Veteran was found to have symptomatic nonunion through at least September 2015, which could potentially warrant a 40 percent rating under the pre-February 2021 rating criteria for the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2020). However, it remains unclear for how long nonunion existed and whether it still does. While December 2020 x-ray imaging of the left ankle performed in conjunction with a VA examination did not show nonunion according to the imaging report, the Board points out that the prior imaging that demonstrated nonunion was done via CT scan in January 2015 and August 2015, and not x-ray imaging. Indeed, in December 2014, at which time x-rays showed a "successful ankle arthrodesis in perfect alignment and position" with no mention of non/mal/union, it was noted that a CT scan was needed to "check the union." Given the foregoing, the Board finds that remand is necessary for an examination to determine whether the Veteran's left ankle disability currently involves nonunion of the tibia and fibula. Additionally, given evidence that the Veteran underwent left ankle fusion in August 2014, the Board finds that remand is necessary to determine the period of convalescence required following that surgery, as the Veteran is entitled to a temporary total disability rating based on the need for convalescence. 38 C.F.R. § 4.30. An August 2014 pre-surgical private treatment note indicated that it typically took 4-5 months to recover from the fusion surgery, and subsequent evidence dated in December 2014 supports that the Veteran was off of work and recovering for at least 16 weeks with expectation that he would be off work for another 6 weeks. Thus, a medical opinion is necessary to determine how long the Veteran required convalescence following his August 2014 left ankle fusion surgery. Finally, the Board finds that clarification is necessary as to the precise joints involved in the Veteran's ankle disability. Currently, the left ankle is rated based on ankylosis of the subastragalar or tarsal joint in good weightbearing position. 38 C.F.R. § 4.71a, DC 5272. However, the record shows that at the time that "very little ankle motion" (pre-fusion) or ankylosis of the ankle (post fusion) were noted, the evidence simultaneously showed that there was "good subtalar motion," or that "subtalar and trans-tarsal motion" was present. Thus, it is unclear exactly which joints are ankylosed, which is relevant to assignment of the diagnostic code and rating. 2. The issues of entitlement to increased ratings for left and right knee disabilities are remanded. The Board finds that remand is necessary prior to adjudicating the Veteran's left and right knee increased rating claims, as it appears that there are relevant outstanding treatment records. Specifically, the current record supports that the Veteran sustained a fracture to his left kneecap following a fall in August 2018 and was placed in a cast and immobilized for a period. As those records relate to the left knee, which is on appeal, and potentially include examination of the right knee, they should be obtained on remand. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain all outstanding VA or private treatment records related to the left ankle, right knee, and/or left knee, to specifically include records relating to a left knee fracture occurring around August 2018. 2. Then, schedule the Veteran for an examination to determine the nature and extent of his left ankle disability throughout the period on appeal. In particular, a CT scan, or other appropriate diagnostic imaging, should be performed to determine whether there is malunion or nonunion of the left ankle. The examiner should respond to the following: (a) Is there currently nonunion or malunion of the left ankle? If so, for how long as there been nonunion or malunion? Did the Veteran likely have nonunion or malunion prior to the August 2014 fusion? In providing the foregoing opinion, please consider the July 2014 notation that the Veteran's "very complex and severe left tibia fracture" in service was complicated by nonunion, and the 2015 CT scans showing nonunion. (b) Identify the precise joint(s) that are ankylosed, by fusion or otherwise, to include the subastragalar joint and or the tarsal joint, in light of the notations of "normal subtalar motion," "good subtalar motion," and "subtalar and trans-tarsal motion present." (c) Provide an opinion as to the date until which the Veteran required convalescence following his left ankle fusion in August 2014, with consideration of the August 2014 notation that it normally takes 4-5 to recover; the December 2014 notation that the Veteran was still expected to be out of work for another 6 weeks; as well as the September 2015 offer for an additional ankle surgery (arthrotomy). S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.