Citation Nr: 21066460 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 12-31 852 DATE: November 1, 2021 ORDER Prior to September 30, 2019, entitlement to an initial rating for a lumbar disability in excess of 10 percent is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. FINDING OF FACT Prior to September 30, 2019, the Veteran's lumbar 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 spine was greater than 120 degrees; there was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; and there were no doctor-prescribed incapacitating episodes during any 12 month period. CONCLUSION OF LAW Prior to September 30, 2019, the criteria for entitlement to an initial rating in excess of 10 percent for a lumbar disability have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Codes 5237-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1989 to December 2010. This appeal to the Board of Veterans' Appeals (Board) is from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2015, a Travel Board hearing was held before the undersigned; a transcript of the hearing is of record. The Board remanded the issues in April and November 2015, and, in a May 2017 decision, denied a higher rating for the lumbar spine disability but granted an initial 10 percent rating for the left knee. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In May 2018, the parties filed a Joint Motion for partial remand (JMPR) and by way of a May 2018 Order the Court vacated that portion of the Board decision that was the subject of the JMPR and remanded the matters for action consistent with the JMPR. The Board then remanded the case in November 2018 for development consistent with the JMPR. In July 2020, the Board again denied the claims and the Veteran again appealed the decision to the Court. Following a June 2021 JMPR, the Court issued a June 2021 Order that vacated the portions of the Board decision that denied a higher rating for the left knee disability and a rating in excess of 10 percent for the lumbar disability prior to September 30, 2019. Increased Rating 1. Prior to September 30, 2019, entitlement to an initial rating for a lumbar disability in excess of 10 percent. 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; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Regulation 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Disabilities of the spine can be rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under this Formula, a 10 percent evaluation is assigned 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. A 20 percent evaluation is assigned for 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; 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. Id. A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is assigned of unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Id. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion is 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of the range of forward flexion, extension, left and right lateral flexion and left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id., Note 2. Low back disabilities, which involve intervertebral disc syndrome may be alternatively rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating episodes. Under this Formula, a 10 percent rating is assigned 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 rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Code 5243. For purposes of evaluations under Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id., Note 1. On January 2011 VA examination, the Veteran reported his back was stable and that he treated it with medication, a chiropractor, and ice with a good response. Flare-ups were severe and occurred every month or two and lasted for one to two days. They were precipitated by lifting, straining, or prolonged walking or standing. During flare-ups he had increased limitation of motion and a decreased ability to do his work or household chores. He had no incapacitating episodes. The Veteran's symptoms were back pain and stiffness; there was no history of fatigue, decreased motion, weakness, or spasm. Pain occurred with excessive lifting or straining and prolonged standing or walking. It was mild, constant, and daily, and without radiation. He was able to walk one to three miles. On examination, forward flexion was from 0 degrees to 80 degrees and extension was from 0 degrees to 20 degrees. Bilateral rotation and bilateral lateral flexion were all from 0 degrees to 30 degrees. There was no evidence of pain on all active ranges of motion but there was evidence of pain following repetitive motion tests without any additional loss in the range of motion. The examiner found no abnormal curvature, lumbar spasm, atrophy, guarding, weakness, pain with motion, or ankylosis of the spine; however, there was tenderness. His posture and gait were normal. Reflexes were normal bilaterally except for the bilateral knee jerk, which was 1+. Sensory testing was normal in the lower extremities and motor strength was 5/5 bilaterally. See January 2011 VA Examination. An April 2011 treatment record shows that the Veteran reported having flare-ups of low back pain two to four times a month. On examination, the back pain could not be reproduced with palpation. In November 2011, the Veteran complained of having worsening back pain for the past three months. He indicated that he could barely walk or bend. On examination, he had tenderness in the lumbar area, but the range of motion was within normal limits. See July 2013 Medical Treatment Record Non-Government Facility. VA treatment records in April 2014 provide somewhat conflicting information. The first record shows the Veteran complained of low back pain that was 9/10 in severity that radiated to the left side; he ambulated without assistance and there was no sign of acute distress. Another record later that day noted he reported having intermittent flare-ups but there was no radiation to the legs, bowel or bladder symptoms, numbness, weakness, or other complaints. See January 2015 CAPRI records. Private treatment records also in April 2014 show that he had an injury due to improper lifting that had resulted in severe back pain; however, he did not miss any work. In terms of severity, pain was rated 5/10, stiffness was rated 4/10, and restriction was rated 5/10. In May 2014, the frequency of his back pain increased to 75 percent of the day with moderately severe intensity that increased from 5/10 to 6/10 due to standing, sitting, walking, time on the computer, and lifting. Stiffness increased in frequency of 75 percent to 100 percent of the day, and he had moderate intensity that remained at 4/10. It was increased by standing, sitting, walking, and time on the computer. Restrictions increased in frequency from 50 percent to 75 percent of the day and intensity remained at slight to moderate and continued at 5/10 in severity. It increased with computer time, standing, sitting, lifting, and walking. By June 2014, the intensity of his low back pain increased from 6/10 to 8/10 and he described the intensity as moderate to severe. It was present up to 75 percent of the day and was increased by standing, sitting, walking, computer time, and lifting. Stiffness was frequent to constant and remained present from 75 to 100 percent of the day. The intensity increased from 4/10 to 8/10 and was described as moderate. It increased due to standing, sitting, walking computer time, and lifting. Restriction was intermittent to frequent and was present 50 to 75 percent of the time. The intensity from 5/10 to 8/10 and was described as moderate. It increased due to computer time, standing, sitting, lifting, and walking. See May 2016 Medical Treatment Record Non-Government Facility. A December 2014 treatment record shows the intensity of his back pain continued at 8/10 and the intensity was moderate to severe. Its frequency increased and was present from 75 to 100 percent of the day and increased due to standing, walking computer time, and lifting. His stiffness was constant at 100 percent of the day. The intensity was described as moderate to severe and was still 8/10. There was no change in the frequency of restriction and remained at 50 to 75 percent of the day. It was described as intermittent to frequent. He reported that he started a new job and was frequently standing on his feet. See May 2016 Medical Treatment Record Non-Government Facility. A December 2014 record shows that he was given a lumbosacral corset for joint stabilization, reduction of edema and pain, reduced range of motion, and increased activities of daily living. See January 2015 CAPRI records. In May 2015, he rated his back pain as 7/10. An October 2015 treatment record shows he was seen for his back, which showed his lumbar was negative for erythema, edema, or deformity, and he had normal posture and gait, reflexes, sensation, strength, and range of motion. The only finding was that he was tender to palpation. See March 2016 CAPRI records. On May 2016 VA examination, the Veteran's back was described as stable. All range of motion of the lumbar spine was normal and without pain or tenderness on palpation. Retesting after three repetitions showed no loss in the range of motion and the clinician found no evidence of functional loss. There was also no evidence of pain with weight bearing. The Veteran denied having radiculopathy or flare-ups. He was not examined after repetitive use over time or during a flare-up, and the clinician indicated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during those times. The clinician indicated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated uses over a period of time. There was no evidence of abnormal curvature, lumbar spasm, atrophy, guarding, weakness, or ankylosis. Muscle strength in the lower extremities was 5/5, reflexes were normal, and no decreased sensation was found. There was no evidence of radiculopathy and he did not have intervertebral disc syndrome. The examiner noted that there was no obvious effect between the Veteran's service-connected disability and his ability to function in an occupational environment. See May 2016 C&P Exam. VA treatment record from June 2017 to May 2019 were silent for any low back complaints, treatment, or findings. See October 2019 CAPRI records. The Board finds that prior to September 30, 2019, an initial rating in excess of 10 percent for the low back disability is not warranted. With regard to the rating criteria, the VA examinations showed there was no muscle spasm or guarding severe enough to result in an abnormal gait or an abnormal spine curvature. There is also no evidence of vertebral body fracture with loss of 50 percent or more of the height. Concerning range of motion, the limitation shown during the appeal does not meet or approximate the criteria for a rating greater than 10 percent. On January 2011 VA examination, forward flexion was only limited to 80 degrees and on the May 2016 VA examination his range of motion was normal, and the examiner found no evidence of functional loss. The VA examinations also showed that the combined range of motion during this period was greater than 120 degrees. The June 2021 JMPR, which led to vacating portions of the Board's July 2020 decision, found error in the Board's decision for this issue after determining there was an inadequate explanation as to how the Board weighed evidence of flare-ups noted in the January 2011 VA examination and an April 2011 treatment record when it decided that a rating in excess of 10 percent was not warranted. In particular, the JMPR pointed to his report of severe flare-ups that occurred every one to two months and usually lasted one to two days. This also prevented him from doing his daily work or usual daily household chores, but it did not interfere with maintaining personal hygiene. The April treatment records noted his report of flare-ups two to four times a month. Even though the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). The Board finds that none of the factors associated with the Veteran's flare-ups were shown to produce an additional limitation of motion that was sufficient to assign even a 20 percent rating during this period. The Veteran reported having severe pain during flare-ups that produced increased limitation of motion, but the examiner did not indicate the degree of limitation and by the time he was reexamined in May 2016 he was no longer having flare-ups. Significantly, he reported in November 2011 that his back pain was so severe he could barely bend, but the examination indicated that the range of motion was still within normal limits. Therefore, the evidence shows that even with severe pain his range of motion was not likely to have been decreased to the point where forward flexion was limited to anywhere from 60 to 30 degrees. For this reason, the Board finds that even with his report of limitations in daily work and usual daily household chores during flare-ups that severe pain did not reduce the limitation of motion to a degree that warrants assigning a higher rating. As for duration and frequency of flare-ups, the Veteran reported that they lasted from one to two days and that they occurred as infrequently as every other month to as frequent as four times a month. The Veteran also reported that he avoided prolonged walking, bending, or stooping, which were activities that precipitated flare-ups. Since the Veteran also reported he could walk one to three miles, the evidence indicates he would have to walk more than that for it to trigger a flare-up. Given that he avoided activities that triggered his flare-ups, it is unlikely that they did not frequently occur on the high end of the scale. Considering all of these factors, with such a wide range of frequency and variation in duration, the evidence does not suggest that the frequency and duration or additional limitation of motion produced by the flare-ups more nearly approximated the criteria for a higher rating. A separate rating for neurological findings is also not assignable. There is conflicting evidence in April 2014 as to whether he had radiating symptoms, but VA examinations in January 2011 and May 2016 contain no evidence of radiculopathy. Thus, the weight of the evidence is against the presence of radiculopathy so separate ratings for neurological manifestations are not warranted. For the reasons stated, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's low back disability for the period under consideration. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. The June 2021 JMPR stated that the Board did not adequately explain why a separate rating under Diagnostic Code 5258 was not assigned. Thus, the matter is remanded for further clarification of October 2019 VA examination findings. The JMPR also indicated that a record regarding the knee disability was scanned in May 2019 but the VistA image was not among the printed documents. Thus, this record must be added to the claims file. This matter is REMANDED for the following action: 1. Associate with the claims file the May 2019 orthopedic record that was scanned in VistA, which is from Dr. Goldberg and pertains to the Veteran's knee brace. 2. After #1 is completed, make the claims file available to review to a VA examiner for an addendum opinion. The Board notes that the October 2019 VA examination showed the Veteran had a left knee meniscal tear with symptoms of locking, pain, and effusion, but the examiner did not list the meniscal tear as a diagnosis associated with the service-connected left knee disability. For clarification purposes, the clinician must opine whether the Veteran's service-connected left knee disability at least as likely as not (50 percent or greater probability) caused or aggravated the Veteran's meniscal tear or is otherwise related to the meniscal tear. The clinician must explain the rationale for the opinion. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Bredehorst, 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.