Citation Nr: 21069261 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-13 754 DATE: November 18, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for spondylosis prior to May 19, 2015, and in excess of 20 percent from May 19, 2015 is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for residuals of left tibial stress fracture is remanded. Entitlement to an initial rating in excess of 10 percent for residuals of right tibial stress fracture is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. Prior to May 19, 2015, the Veteran's spondylosis was not productive of forward flexion greater than 30 degrees but not greater than 60 degrees, a combined range of motion (ROM) not greater than 120 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spine contour such as scoliosis, revered lordosis, or abnormal kyphosis. 2. From May 19, 2015, the Veteran's spondylosis was not productive of ankylosis or forward flexion of the spine 30 degrees or less. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for spondylosis prior to May 19, 2015, and in excess of 20 percent from May 19, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Marines from February 1994 to February 1998 and served honorably in the Army from October 1999 to September 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that assigned a 10 percent rating spondylosis and noncompensable rating for left and right tibial stress fractures, after granting service connection for the same. The Veteran appealed the assigned ratings. In a July 2015 rating decision, the RO increased the rating for spondylosis from 10 percent to 20 percent, effective May 19, 2015. In an August 2020 rating decision, the RO increased the ratings for residuals of left and right tibial stress fractures to 10 percent each, effective October 19, 2011 (date of claim). The Board remanded the issue of entitlement to service connection for pes planus in August 2019. In an August 2020 rating decision, the RO granted service connection for pes planus. Thus, this issue is no longer before the Board. In March 2019, a hearing was held by the undersigned Veteran Law Judge. A transcript is of record. INCREASED RATING Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). These revisions addressed spinal diagnostic codes and intervertebral disc syndrome (IVDS). The General Rating Formula for Diseases and Injuries of the Spine was unchanged. Because the Veteran has not been diagnosed with or rated based upon IVDS and the General Rating Formula is unchanged, the Regulatory changes have no effect on the Veteran's rating and need not be discussed further. The Veteran's spondylosis is rated under 38 C.F.R. § 4.71a, DC 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) 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. A 20 percent rating is warranted 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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 ROM testing. See 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 requires that VA examinations (VAX) include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint. Further, in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), the Court held that an examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated. Nonetheless, even when 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; 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 criteria."). A rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). 1. Entitlement to an initial disability rating in excess of 10 percent for spondylosis prior to May 19, 2015 The Veteran was afforded a VA examination (VAX) in July 2013. He reported flare-ups due to prolonged sitting, laying, and standing. Initial range of motion (ROM) for forward flexion was 90 degrees or greater. Evidence of painful motion began at 70 degrees for forward flexion. Combined initial ROM was 240. Combined ROM with consideration of painful motion was 220. After repetitive use, post-test ROM for forward flexion was 80 degrees. Combined post-test ROM was 230. The Veteran had functional loss/impairment described as less movement than normal, pain on movement, and interference with sitting, standing, and/or weight bearing. He did not have localized tenderness or pain to palpation for joints and/or soft tissue of the spine. He did not have guarding or muscle spasms of the spine. Muscle strength was 5/5 for hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. He did not have muscle atrophy. His flex exam and sensory exam were normal. His straight leg raising test was negative. He did not use any assistive devices as a normal mode of locomotion. There was an incidental finding of kyphosis noted, however, this was not associated with muscle spasms or his low back condition. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. He likewise did not have any other neurologic abnormalities or findings related to his spine condition such as bowel or bladder problems/pathologic reflexes. He did not have IVDS. Although the Veteran has complained of more severely disabling problems, the Board finds that the assigned 10 percent rating adequately represents his degree of impairment for this period on appeal. His spondylosis was not productive of forward flexion greater than 30 degrees but not greater than 60 degrees. Rather, at worst his forward flexion was 70 degrees, which accounts for objective evidence of painful motion. His combined ROM was also much greater than 120 degrees. At worst his combined ROM was 220, which takes into consideration his reports of pain. He did not have muscle spasms or guarding related to his spine condition. Further, there is no indication of radiculopathy or any other neurologic abnormalities or findings related to his spine condition such as bowel or bladder problems/pathologic reflexes that would warrant a separate rating. The Board acknowledges that the Veteran is competent to report symptoms of his back disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability nor to diagnose additional or secondary disabilities. Such competent evidence concerning the nature and extent of the Veteran's service-connected low back disability has been provided by VA medical professionals who examined him. The medical findings adequately address the criteria under which this disability is evaluated. The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Thus, the preponderance of the evidence is against a rating in excess of 10 percent and the benefit-of-the doubt standard of proof does not apply. See 38 U.S.C. § 5107 (b). Entitlement to a rating in excess of 20 percent for spondylosis from May 19, 2015 is denied. The Veteran underwent a VAX in May 2015. He reported functional loss as avoiding heavy lifting in excess of 15 pounds and avoiding prolonged sitting or standing greater than 20 minutes. He did not report flare-ups. Initial ROM for forward flexion was 55 degrees. A combined ROM was 190. There was no change with repetitive use testing. There was no localized tenderness or pain on palpation of joints/soft tissue. There was also no guarding or muscle spasms of the back. The Veteran's gait was normal and spinal contour was normal. He had pain on weight bearing/nonweight bearing. Functional loss was described as less movement than normal and pain on movement. However, pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups or when the joint was used repeatedly over time. There was no functional loss during flare-ups or when the joint was used repeatedly over a period of time. Muscle strength was normal for hip flexion, knee flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, foot abduction, foot adduction, and great toe extension. There was no muscle atrophy or ankylosis. Reflex exam and sensory exam were normal. Straight leg raising test was negative. He did not report the use of assistive devices. Although the Veteran reported subjective symptoms of radiculopathy described as intermittent pain and numbness, the VA examiner found no objective evidence of nerve root involvement. He likewise did not have any other objective neurologic abnormalities such as bowel or bladder problems associated with a back condition. He did not have IVDS. Another VAX was conducted in October 2015. At that time, the Veteran reported flare-ups. He described functional loss described as not being able to bend over easily or lift anything without pain. Initial ROM on forward flexion was 90 degrees. Combined ROM was 240. He had objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. He had no pain on weight bearing. There was no objective evidence of pain on non-weight bearing. Passive ROM was the same as active ROM. There was objective evidence of pain on passive ROM that was the same as active ROM. Pain was exhibited on forward flexion and extension. However, there was no functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or ROM. He was examined immediately after repetitive use overtime. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examination was not conducted during a flare-up. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. He had no ankylosis or the functional equivalent thereto. The Veteran had muscle spasms that did not result in abnormal gait or abnormal spinal contour. He had localized tenderness that did not result in abnormal gait or abnormal spinal contour. He had guarding that did not result in abnormal gait or abnormal spinal contour. Muscle strength was normal on hip flexion, knee flexion, and ankle plantar flexion. He did not have muscle atrophy. His reflex examination and sensory examination were normal. His straight leg raising test was negative. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. He did not have any other neurologic abnormalities or findings related to a spine condition. He did not have IVDS. He denied the use of any assistive devices. On remand, a VAX was conducted in January 2020. The Veteran reported flare-ups described as severe sharp pain in his lower back that radiated up. He reported that when he experiences flare-ups, he has to stop doing all physical activities. He reported functional loss as difficulty sitting in one position for a prolonged period of time and difficulty in walking, standing, weight-bearing, carrying, lifting, and bending his back. Initial ROM for forward flexion was 60 degrees. Combined ROM was 160. Pain was noted on forward flexion, extension, and right and left lateral flexion. There was also pain on weight bearing. There was no objective localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing with at least three repetitions. He did not have additional loss of function or ROM after three repetitions. ROM after repeated use over time for forward flexion was 50 degrees. Combined ROM was 100. Pain caused functional loss. ROM during flare-ups for forward flexion was 50 degrees. Combined ROM was 100. Pain caused functional loss The Veteran had muscle spasm that did not result in abnormal gait or abnormal spinal contour. He did not have guarding. His muscle strength for hip flexion, knee extension, and ankle plantar flexion was normal. His reflex exam and sensory exam were normal. His straight leg raising test was negative. There Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy. He did not have ankylosis He did not have any other neurologic abnormalities or findings related to his back condition. He did not have IVDS. He reported the use of a brace regularly.. The VA examiner considered a March 2016 medical record noting the Veteran's use of a back brace and a diagnosis of lumbar radiculopathy. In that regard, the examiner determined that there was no objective evidence on examination to warrant a diagnosis of lumbar radiculopathy. As there was no radiological finding of neuroforaminal stenosis or reduced vertebral disc space to suggest lumbar radiculopathy to support the diagnosis. Although the Veteran has complained of more severely disabling problems, the assigned 20 schedular rating adequately represents his degree of impairment for the applicable appeal period. His spondylosis was not productive of ankylosis or forward flexion of the spine 30 degrees or less. There is also no basis for assigning a separate rating is warranted for radiculopathy or any other neurologic abnormalities or findings related to his spine condition such as bowel or bladder problems. The multiple VA examinations are persuasive in this regard and more probative than the treatment record noting radiculopathy without any supportive findings. In coming to this conclusion, the Board has considered the VAXs, treatment records, and the Veteran's lay statements. The VA examiners in the May 2015 VAX and January 2020 VAX acknowledge the Veteran's subjective symptoms of radiculopathy described as intermittent pain and numbness. However, even after considering the Veteran's reports of pain and numbness the VA examiners determined that there was no objective evidence of nerve root involvement and no basis to warrant a diagnosis. The January 2020 VA examiner also considered the March 2016 treatment record in concluding that a diagnosis was not warranted. The Board affords very little weight to the March 2016 treatment record finding of radiculopathy as the physician failed to identify what nerve root was involved or provide an adequate explanation as to how it was determined that the Veteran had radiculopathy. The Board affords greater weight to the VA examiners opinion in the May 2015 VAX and the January 2020 VAX as a detailed rationale was provided. Additionally, the VA examiners determined in the May 2015 VAX, October 2015 VAX, and January 2020 VAX that there was no indication of any other neurologic abnormalities or findings related to his spine condition such as bowel or bladder problems. The Board affords substantial probative weight to these findings. The Board acknowledges that the Veteran is competent to report symptoms of his back disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability nor to diagnose additional or secondary disabilities. Such competent evidence concerning the nature and extent of the Veteran's service-connected low back disability has been provided by VA medical professionals who examined him. The medical findings adequately address the criteria under which this disability is evaluated. The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Thus, the preponderance of the evidence is against a rating in excess of 20 percent and the benefit-of-the doubt standard of proof does not apply. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for residuals of left tibial stress fracture is remanded. Entitlement to an initial rating in excess of 10 percent for residuals of right tibial stress fracture is remanded. In August 2019, the Board remanded these matters for a VAX to assess the current severity of the Veteran's tibial fracture disabilities. Reference was made to potential worsening. Specifically, VA treatment records indicating that the Veteran started utilizing VA issued pull up braces over both knees due to instability and wobbling while walking. See May 2016 VAMC. Stability testing was ordered as part of the remand. A VAX was conducted in January 2020. No joint stability testing was performed. Instead, the examiner appears to have discounted the need to perform stability testing the Veteran did not have a history joint instability. No rationale was provided for this finding especially in light of the above referenced VA treatment records. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). A remand is needed to provide the Veteran with an adequate VAX. The Board also notes that during the appeal period VA amended its regulations governing musculoskeletal. On February 7, 2021, changes were made to DC 5257 regarding recurrent subluxation and lateral instability of the knee. Upon remand the revised rating criteria must be addressed. Entitlement to a TDIU is remanded. The Veteran's representative has asserted that he is unable to secure substantial gainful employment due to his service-connected disabilities. While the Veteran appears to be presently employed, there is evidence showing that he experienced unemployment during the appeal period. He has also related his unemployment to his service-connected disabilities. Consequently, the issue of TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). The TDIU claim is found to be inextricably intertwined with the increased rating claims being remanded. Two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issues has been rendered. See Harris v. Derwinski, 1 Vet. App. 180(1991). Thus, the issue of entitlement to TDIU must be remanded as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VAX, to determine the severity of his knee conditions. The claims file and a copy of this remand must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. a. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. b. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. c. The examiner must address whether the Veteran has: a) an unrepaired or failed repair of complete ligament tear causing persistent instability, b) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability; c) a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, of failed repair) causing persistent instability; d) a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair; or e) a diagnosed condition involving the patellofemoral complex with recurrent instability without surgical repair. The examiner should also address whether the Veteran is prescribed a brace and/or an assistive device (e.g., cane(s), crutch(es), walker). If there is recurrent subluxation and/or lateral instability, assess whether it is characterized as slight, moderate, or severe. d. The examiner must address whether the Veteran has a tibia and fibula impairment of: a) nonunion of, with loose motion, requiring a brace; b) malunion of with marked, moderate, or slight knee disability; c) medial tibial stress syndrome or shin splints: i) requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities, ii) Requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity, or iii) Requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Obtain a retrospective opinion as to the nature and severity of the Veteran's bilateral knee disability throughout the appeal period. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. An explanation for all opinions expressed must be provided. In addition, the examiner must do the following: a) elicit detailed statements from the Veteran regarding his bilateral knee symptoms. Identify all symptoms attributable to the service-connected bilateral knee instability, to include whether there is any giving way, buckling, falling, locking, effusion, or other associated symptomatology. If the Veteran did not experience these symptoms at any point during the applicable time period, indicate when the symptoms started or when they improved. b) Assess the severity of each symptom, and specifically note whether the Veteran's instability or other impairment is characterized as slight, moderate, or severe. In providing this information, elicit statements from the Veteran regarding his symptom history and review his May 2016 and July 2020 Loma Linda VA Clinic medical records. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Complete any additional evidentiary development necessary to adjudicate a claim for a TDIU. All actions to obtain any requested records should be fully documented in the electronic claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. Then, adjudicate the claim for TDIU. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.