Citation Nr: 21065164 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 11-27 080 DATE: October 25, 2021 ORDER 1. Entitlement to a rating in excess of 20 percent for a lumbar spine disability is denied. REMANDED 2. Entitlement to a rating in excess of 10 percent for left knee strain with left medial meniscus posterior horn tear is remanded. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The Veteran's lumbar spine disability is not shown to have been manifested by forward flexion limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least 4 weeks but less than 6 weeks during a 12-month period; or additional separately ratable neurological manifestations. CONCLUSION OF LAW A rating in excess of 20 percent for lumbar spine disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, Codes 5237, 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from June 2014 to June 2019. These matters are before the Board on appeal from a May 2010 Department of Veterans Affairs (VA) rating decision. In February 2018 and February 2021, the matters were remanded for additional development. Increased Rating Revisions were made to certain regulations governing ratings for musculoskeletal disabilities, effective February 7, 2021. As the Veteran's appeal was pending at the time of this revision, from that date, he is entitled to a rating under the old or the new criteria, whichever are more favorable. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be 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. All reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, when 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). However, "staged" ratings may be assigned when the evidence shows distinct periods during the evaluation period when manifestations of the disability warranted varied ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnson v. Brown, 9 Vet. App. 7 (1996). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). 1. Entitlement to a rating in excess of 20 percent for lumbar spine disability is denied. On May 2010 VA examination, the Veteran bilateral lumbar discomfort radiating to the hips but not the legs, that was almost constant and 8/10 in severity on a typical day. He reported sleep disturbance due to back pain. There was no bowel or bladder dysfunction. He was able to walk or sit for about 30 minutes before having increased discomfort; any bending, lifting, or carrying aggravated his back pain. He had no incapacitating episodes in the previous 12 months. He denied flare-ups or a history of falling down. He did not use a cane, back brace, or other assistive device. He reported being able to walk about one-quarter mile from where he parked his car to his classes at school. On physical examination, mild thoracic kyphosis and mild tenderness of the lumbar midline were noted. There was no spinal tenderness at any other level and no spasm. Straight leg raising was negative bilaterally, and the Veteran had a normal symmetrical gait. Flexion of the lumbar spine was to 45 degrees, extension was to 20 degrees, right and left lateral flexion were each to 20 degrees, and right and left rotation were each to 50 degrees. He reported low back discomfort at the extremes of each movement with no change following repetitive use testing. Based on this evidence, the May 2010 rating decision on appeal continued a 20 percent rating for lumbar spine degenerative disc disease. On December 2010 VA treatment, the Veteran was noted to have forward flexion of the spine to 60 degrees. On July 2014 VA examination, the Veteran denied flare-ups of the lumbar spine. On physical examination, forward flexion was to 85 degrees, extension was to 30 degrees or greater, right and left lateral flexion were each to 30 degrees or greater, and right and left lateral rotation were each to 30 degrees or greater, with no objective evidence of painful motion. There was no decrease in range of motion on repetitive use testing. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups or with repeated use over time. There was no localized tenderness or pain to palpation, and no guarding or muscle spasm. Muscle strength testing was normal, and there was no muscle atrophy. Reflex and sensory testing were normal. Straight leg raising was negative to both sides. There were no symptoms due to radiculopathy. There were no other neurologic abnormalities related to a back disability. The Veteran did not have IVDS of the thoracolumbar spine. He did not use assistive devices. On October 2019 VA examination, the Veteran reported mild back pain of 1/10 severity. He reported being anxious about possibly developing additional pathology but noted his back was improved with physical therapy. He reported having no limitations due to his back except that if he sits for a while, he has to get up and move around. The examiner noted that a recent orthopedic examination revealed no back pathology of significance. The Veteran did not report flare-ups or any functional loss or impairment of the back, regardless of repetitive use. On physical examination, forward flexion was to 90 degrees, extension was to 30 degrees, and right and left lateral flexion and rotation were each to 30 degrees. No pain was noted on exam. There was no evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the spine. There was no additional loss of function or range of motion after repetitive use testing. There was no guarding or muscle spasm. Muscle strength testing, reflex testing, and sensory testing were normal. Straight leg raising was negative to both sides. There were no symptoms due to radiculopathy. There was no ankylosis. There were no other neurologic abnormalities related to a back disability. The Veteran did not have IVDS of the thoracolumbar spine, and he did not use any assistive devices. On April 2021 VA examination, the Veteran reported constant back pain of 1/10 severity; with standing and movement, the pain increases to 2/10 severity for about 15 minutes. He reported having 10 to 15 minutes of dull pain after physical activity. He denied having flare-ups when sitting. He reported that brisk walking or running is difficult. The examiner noted that November 2009 lumbar spine MRI results showed mild upper lumbar degenerative disc changes, and August 2011 scans revealed lumbar degenerative disc disease with bulging at L5-S1; the examiner opined that exams from 2010 forward appear inconsistent with the January 2011 opinion that the Veteran is disabled by pain and has pathology severe enough to be recommended for spinal fusion surgery. The examiner opined that MRIs and other exams are not consistent with these findings. On physical examination, forward flexion was to 90 degrees, extension was to 30 degrees, and right and left lateral flexion and rotation were each to 30 degrees, in both active and passive range of motion testing. There was no evidence of pain, crepitus, or localized tenderness or pain on palpation. There was no additional loss of function or range of motion after repetitive use testing. There was no localized tenderness, guarding, or muscle spasm. Muscle strength testing, reflex testing, and sensory testing were normal. Straight leg raising was negative to both sides. There were no symptoms due to radiculopathy. There was no ankylosis. There were no other neurologic abnormalities related to a thoracolumbar spine disability. The Veteran did not have IVDS of the thoracolumbar spine. He did not use any assistive devices. The VA Rating Schedule provides for the following ratings for spine disabilities, 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. According to the General Rating Formula for Diseases and Injuries of the Spine (General Formula), the following ratings are to be assigned: [The ratings listed below apply to Codes 5235 through 5243 (unless a disability rated under Code 5243 is alternatively rated under the "Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes").] Under the General Formula, a 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, with combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, with 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 when forward flexion of the thoracolumbar spine is 30 degrees or less; or, for 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 the entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a and note 1 following the General Formula. If the service-connected spine disability includes intervertebral disc syndrome (IVDS) it may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Here, incapacitating episodes of IVDS are not shown or alleged. 38 C.F.R. § 4.71a. Additional VA treatment records throughout show symptoms largely similar to those found on the VA examinations described above. The reports of the VA examinations, the VA treatment records, and lay statements, overall, provide evidence against this claim, as they do not show that for any distinct period symptoms of the Veteran's lumbar spine disability included forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine (the criteria for a 40 percent rating). Forward flexion has never been shown to be limited to 30 degrees or less, and ankylosis of the spine has never been noted, and is not alleged. Even on the examinations when the Veteran reported increased pain and stiffness, he did not describe functional impairment equivalent to forward flexion limited to 30 degrees or less or favorable ankylosis. Additional neurological manifestations due to the lumbar spine disability are not shown or alleged, and further discussion of separate ratings for neurological manifestations is not necessary. The criteria for a schedular rating in excess of 20 percent under the General Formula were not met at any time, and a higher rating is not warranted. As the symptoms and associated impairment of function of the Veteran's lumbar spine disability fall squarely within the parameters of the criteria for the 20 percent rating assigned, and have not met (or approximated) the criteria for the next higher rating under the General Formula, an increased rating under the General Formula is not warranted. The preponderance of the evidence is against this claim, and the appeal in the matter is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for left knee strain with left medial meniscus posterior horn tear. In July 2013 the Veteran underwent left knee arthroscopic meniscectomy by a private (non-VA) orthopedic surgeon. A review of the record found that the AOJ has not attempted to secure the records leading up, and of, that knee surgery. Such outstanding records are pertinent and highly relevant evidence in this matter, and VA's duty to assist requires that they be sought. The record does not show an attempt to obtain them. Authorization from the Veteran is needed for such development. 2. Entitlement to a TDIU rating is remanded. The Veteran contends that he is unable to maintain substantially gainful employment due in part to his service-connected left knee disability. This matter is inextricably intertwined with the increased rating for left knee claim that is remanded (and consideration must be deferred pending resolution of the increased rating claim). The matters are REMANDED for the following: 1. Ask the Veteran to complete current VA Forms 21-4142 for each private provider who has evaluated or treated him for left knee disability, to specifically include records pertaining to a 2013 left knee arthroscopic meniscectomy and subsequent recovery, authorizing VA to obtain complete clinical records of the evaluations and treatment from each provider. Secure complete clinical records of the evaluations and treatment from each provider. If there is no response to an initial request for records, make a second request (unless it is clear after the first request that a second request would be futile). 2. Then review the record considering the applicability of the revision to the criteria for rating knee disabilities that came into effect in 2021 and readjudicate the knee rating issue considering those revisions, and following any additional development deemed necessary. [The SSOC issued must include the revised criteria, and explain the applicability/or non-applicability of the revisions.] 3. Then, readjudicate the claim for a TDIU rating considering the determination made on the claim seeking an increased rating for left knee disability. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.