Citation Nr: 21067158 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-31 204 DATE: November 3, 2021 ORDER Entitlement to a rating in excess of 40 percent for lumbosacral strain is denied. Entitlement to a separate 20 percent rating for right knee meniscal tear from May 8, 2017, is granted, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a sinus disorder with headaches is remanded. Entitlement to a rating in excess of 10 percent for left knee chondromalacia patella is remanded. Entitlement to a rating in excess of 10 percent for right knee chondromalacia patella is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's lumbosacral strain is manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician, having a total duration of at least six weeks during the past twelve months. 2. Effective from May 8, 2017, there is medical evidence demonstrating right knee meniscal tear and symptoms consistent with that tear. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237. 2. The criteria for a separate 20 percent rating for right knee meniscal tear, effective May 8, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1980 to June 1998. This case comes before the Board of Veterans' Appeals (Board) from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In June 2019, the Veteran presented sworn testimony during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. This claim was previously before the Board in August 2019, at which time it was remanded for further development. In August 2020, the RO increased the Veteran's lumbosacral strain evaluation to 40 percent, effective July 12, 2013, and the current claim has been amended to reflect the change. Increased Rating The Veteran contends that his lumbar spine disability is worse than rated and warrants an increased rating. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, in Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board observes that the words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2016). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Significantly, regulations pertaining to musculoskeletal disabilities were recently amended and new criteria for rating musculoskeletal disabilities became effective on February 7, 2021. When 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. VAOPGCPREC 3- 2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The recently revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, for the period beginning February 7, 2021, the version more favorable to the veteran will apply. The Board notes, however, that no change was made to either Diagnostic Code 5237 or 5258. Entitlement to a rating in excess of 40 percent for lumbosacral strain The Veteran's lumbar spine disability is currently rated as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Disabilities that fall under Diagnostic Code 5237 require application of a General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitation Episodes, as follows: Forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, warrants a 40 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. § 4.71. Associated objective neurologic abnormalities are to be rated separately under an appropriate Diagnostic Code. For purposes of VA compensation, the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. In exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that particular individual, even though it does not conform to the normal range of motion stated in the regulation. Each range of motion should be rounded to the nearest 5 degrees. Finally, for VA purposes, unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar spine, or entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficult walking because of a limited line of vision, restricted opening of the veteran's mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or the existence of dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The post-service treatment records show that the Veteran has consistently reported significant pain and functional loss with respect to his back. However, the clinical records do not show evidence of unfavorable ankylosis of the entire thoracolumbar spine. The Veteran had a VA examination in May 2014 and the examiner noted favorable ankylosis of the entire thoracolumbar spine and a January 2020 VA examination noted no evidence of ankylosis. Since the record does not show unfavorable ankylosis of the thoracolumbar spine, the Board finds that a rating in excess of 40 percent is not warranted for the Veteran's low back disability. See 38 C.F.R. § 4.71a. The Board also notes that the Veteran has not been diagnosed with intervertebral disc syndrome (IVDS) and, therefore, a higher rating for IVDS is not warranted. 38 C.F.R. § 4.71a, DC 5243. Furthermore, the provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis, as is the scenario in the present case. Johnston v. Brown, 10 Vet. App. 80 (1997). Therefore, a higher rating based on functional impairment is not warranted. Accordingly, the Board finds that a rating in excess of 40 percent for the Veteran's lumbosacral strain is not warranted. Entitlement to a separate 20 percent rating for left knee meniscal damage from May 8, 2017 Under Diagnostic Code 5258, a maximum 20 percent rating is warranted for evidence of dislocated, semilunar, cartilage, with frequent episodes of "locking," pain, and effusion into the joint. Id. A May 8, 2017 private MRI of the right knee revealed a small anterior horn of the medial meniscus without a fluid-filled tear. There was an abnormal shape of the lateral meniscus with the appearance of a discoid meniscus with tear of the body and posterior horn. As a result of these findings, the examining physician diagnosed a right knee lateral meniscal tear. The Board notes that, at the Veteran's January 2020 VA examination, the examiner specifically noted that there was evidence of a right meniscal tear and that there were symptoms consistent with such damage, which the Board finds can provide a basis for an additional 20 percent rating under Diagnostic Code. The Board will therefore give the Veteran the benefit of the doubt and find that, effective May 8, 2017, there is sufficient evidence of right knee meniscal damage and corresponding symptoms to warrant a separate 20 percent rating for right meniscal damage from that date. 38 C.F.R. § 4.71a, Diagnostic Code 5258. REASONS FOR REMAND Entitlement to service connection for a neck disorder Pursuant to the August 2019 Board remand, the Veteran a received VA examination for his neck in January 2020 and the examiner opined that it was less likely as not that the Veteran's condition had its onset in service or was otherwise the result of a disease or injury in service. It was also less likely than not caused or aggravated by the service-connected lumbar disability. There was no mention of a neck condition on the separation examination and no medical records supported the contention that a neck condition was related to the in-service helicopter accident. There were multiple evaluations for a lumbar condition but none referred to proximate or concurrent neck complaints. Furthermore, post-service evaluations for the neck condition in 2002 and 2015 did not refer to the in-service incident; the only reference to the neck relating to the helicopter incident was in 2017. Finally, no medical provider or physical therapy provider supported a relationship of the lumbar condition to the neck condition post-service. With regards to the left shoulder condition, the examiner opined that it was less likely as not that the Veteran's condition had its onset in service or was otherwise the result of a disease or injury in service. It was also less likely than not caused or aggravated by the service-connected lumbar disability. There was no mention of a specific shoulder condition until 2015 but prior references refer to radicular pain from the neck with radiation in 2002, 2015, and 2017. The Veteran did not mention any other prior injury other than the helicopter trauma and the x-ray evidence indicated a prior injury to the humerus, but this was read as a possible bone infarction. There was no medical record support during or immediately following service and no medical provider diagnosing a primary shoulder injury until 2015 and 2017. The examiner noted that, even then, the shoulder condition was mentioned as incidental but there was no speculation on it being related to the neck or primarily related to the helicopter accident. Therefore, the condition was less likely than not related to service. Finally, with regards to the sinus condition, the examiner opined that it was less likely as not that the Veteran's condition had its onset in service or was otherwise the result of a disease or injury in service. The medical record did not document any in-service visit for sinusitis and no evaluation, treatment, or imagery in-service or immediately post-service for a sinus-related condition. Furthermore, no medical provider indicated a relationship to the trauma from the helicopter injury. Therefore, the condition was less likely than not related to service. The Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is also inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, these claims must be remanded for new examinations. Entitlement to a rating in excess of 10 percent for left knee chondromalacia patella is remanded. Entitlement to a rating in excess of 10 percent for right knee chondromalacia patella is remanded. The August 2019 Board remand noted that the Veteran received a VA examination for his knees in June 2014. However, the Board found that the examination report was not found to be adequate, as it did not appear that any passive, weight-bearing or nonweight-bearing range of motion testing was conducted at those times. In response, a January 2020 examiner provided results that did not find the presence of pain with weight-bearing and nonweight-bearing; however, the examiner did note additional pain with flare-ups that caused more limited range of motion without identification of that additional motion loss. Consequently, it is still unclear whether the Veteran experiences greater limitation with weight-bearing, nonweight-bearing, and flare-ups, and the occurrence of such limitation during the time frame on appeal. The Board finds that it must again remand the claims in order for another VA examination to be accomplished, which includes the identification of any additional limitation that occurs with weight-bearing, nonweight-bearing, and flare-ups, and a retroactive opinion with regard to whether the results of the June 2014 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Correia v. McDonald, 28 Vet. App. 158 (2016) (38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). In the case of Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims (Court) also noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. Id. at 10. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed neck disorder. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's neck disorder had its onset in service or is otherwise the result of an incident in service. The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's neck disorder was caused or aggravated by his service-connected lumbosacral strain. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. If the examiner finds that the Veteran's neck condition has been permanently aggravated/worsened by his service-connected condition, the degree of worsening should be identified. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. The Board notes that a conclusion relying on the absence of documentation in the record is inadequate and a medical opinion is also inadequate if it does not take into account the Veteran's reports of symptoms and history. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed left shoulder disorder. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's left shoulder disorder had its onset in service or is otherwise the result of an incident in service. The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's left shoulder disorder was caused or aggravated by his service-connected lumbosacral strain. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. If the examiner finds that the Veteran's left shoulder disorder has been permanently aggravated/worsened by his service-connected condition, the degree of worsening should be identified. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. The Board notes that a conclusion relying on the absence of documentation in the record is inadequate and a medical opinion is also inadequate if it does not take into account the Veteran's reports of symptoms and history. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed sinus disorder. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's sinus disorder had its onset in service or is otherwise the result of an incident in service. In the event the examiner concludes that the Veteran has a sinus disorder that is related to service, he or she should further state whether that Veteran experiences headaches associated with his sinus disorder. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. The Board notes that a conclusion relying on the absence of documentation in the record is inadequate and a medical opinion is also inadequate if it does not take into account the Veteran's reports of symptoms and history. 4. Schedule the Veteran for a VA examination so as to determine the current severity of his left and right knee disabilities. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed. The right knee must be tested in both active and passive motion, in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. The examiner is also asked to determine whether the Veteran's range of motion results from the June 2014 VA examination would have been reduced if they had been tested in both active and passive motion and in weight-bearing and nonweight-bearing. To the examiner's best ability, the additional range of motion loss should be described and estimated in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. Finally, the examiner is asked to provide a retroactive opinion on the extent of the functional loss during weight-bearing, nonweight-bearing, and flare-ups described in the January 2020 VA examination and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.