Citation Nr: 21075100 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 18-17 506 DATE: December 17, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for a lumbar spine condition prior to November 14, 2017, is denied. Entitlement to a disability rating of 20 percent, but not higher, for a lumbar spine condition from November 14, 2017, until December 1, 2019, is granted. Entitlement to a disability rating in excess of 10 percent for a cervical spine condition prior to December 1, 2019, is denied. Entitlement to a disability rating in excess of 10 percent for a left knee condition prior to December 1, 2019, is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for a lumbar spine condition from December 1, 2019, is remanded. Entitlement to a disability rating in excess of 10 percent for a cervical spine condition from December 1, 2019, is remanded. Entitlement to a disability rating in excess of 10 percent for a left knee condition from December 1, 2019, is remanded. FINDINGS OF FACT 1. Prior to November 14, 2017, the Veteran's lumbar spine condition did not manifest as forward flexion greater than 30 degrees but not greater than 60 degrees, nor as a combined range of motion not greater than 120 degrees, nor as muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. From November 14, 2017, to December 1, 2019, the Veteran's lumbar spine condition manifested as muscle spasm or guarding severe enough to result in an abnormal gait. 3. Prior to December 1, 2019, the Veteran's cervical spine condition did not manifest as forward flexion greater than 15 degrees but not greater than 30 degrees, nor as a combined range of motion not greater than 170 degrees, nor as muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 4. Prior to December 1, 2019, the Veteran's left knee condition did not manifest as flexion limited to 30 degrees nor as extension limited to 10 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for a lumbar spine condition prior to November 14, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5242. 2. The criteria for entitlement to a disability rating of 20 percent, but not higher, for a lumbar spine condition from November 14, 2017, until December 1, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5242. 3. The criteria for entitlement to a disability rating in excess of 10 percent for a cervical spine condition prior to December 1, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5239. 4. The criteria for entitlement to a disability rating in excess of 10 percent for a left knee condition prior to December 1, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to May 1971 and from September 1982 to January 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of February 2017 issued by the Department of Veterans Affairs (VA) Regional Office (RO). The undersigned Veterans Law Judge (VLJ) conducted a hearing in this matter in July 2021. A transcript of that hearing is of record. Increased Ratings Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for a higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability rating decisions. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable Diagnostic Code pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80 (1997). In determining if a higher rating is warranted on this basis, pain alone does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance as provided in 38 C.F.R. §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. Entitlement to a disability rating in excess of 10 percent for a lumbar spine condition prior to December 1, 2019. The Veteran's lumbar spine condition is rated as 10 percent disabling under Diagnostic Code (DC) 5293. See February 2017 Rating Codesheet at 1. The Board briefly clarifies that this DC is no longer applicable in the current rating criteria. See 38 C.F.R. § 4.71a, DC 5293 (2003) (providing that this DC previously addressed intervertebral disc syndrome (IVDS)); cf. 38 C.F.R. § 4.71a (providing that IVDS is now addressed under DC 5243). The Board has therefore characterized this issue as presented above. See November 2016 VA Examination Report (Lumbar) at 5 (providing that the Veteran does not in fact have IVDS); see also id. at 1 (providing that the Veteran instead has degenerative disc disease); cf. 38 C.F.R. § 4.71a (providing that degenerative disc disease is addressed under DC 5242). The applicable rating criteria provide that this condition is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, DC 5242. Under the General Rating Formula, a disability rating of 20 percent for a lumbar spine condition is not assigned unless there is forward flexion greater than 30 degrees but not greater than 60 degrees, a combined range of motion 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. 38 C.F.R. § 4.71a, General Rating Formula. A disability rating of 40 percent for a lumbar spine condition is not assigned unless there is forward flexion of 30 degrees or less, or else favorable ankylosis of the entire thoracolumbar spine. Id. Prior to November 14, 2017, the evidence of record does not support the inference that any of these criteria have been met. The Veteran previously underwent a VA examination addressing this issue in November 2016. The VA examiner found forward flexion of the thoracolumbar spine to 70 degrees. See November 2016 VA Examination Report (Lumbar) at 2; see also id. (providing a combined range of motion of 170 degrees); see also id. at 1 (noting no report of flare-ups); see also id. at 2 (finding no additional functional limitation with repeated use over time); see also id. at 3 (finding no guarding or muscle spasm); see also id. at 4 (finding no associated radiculopathies); see also id. at 5 (noting no use of mobility-assistance devices). The November 2016 VA examination also notes findings of pain on palpation of the joints. See November 2016 VA Examination Report at 2; see also id. at 6 (noting functional limitations to repeated bending and heavy lifting activities). However, the provisions of the General Rating Formula specifically apply "[with] or without symptoms such as pain... stiffness, or aching in the area of the spine affected[.]" See 38 C.F.R. § 4.71a, General Rating Formula (emphasis added). Because the applicable rating criteria already contemplate symptoms of pain, and because the VA examiner found that the Veteran did not report flare-ups and that functional limitation of range of motion did not increase with repeated use over time, the Board finds that the Veteran's lumbar spine condition is not better approximated by higher rating criteria during this portion of the rating period on appeal. DeLuca, 8 Vet. App. at 206. Following the November 2016 VA examination, however, the Veteran's medical treatment records support the inference that his lumbar spine condition worsened from November 14, 2017. In reaching this conclusion, the Board particularly notes contemporaneous treatment records that show the Veteran was assigned a walker to assist with "difficulty with ambulation due to low back pain." See February 2018 Medical Treatment Records at 30-31. While this record does not otherwise contradict the VA examiner's findings as to range of motion limitations, the Board finds it at least as likely as not that use of a walker due to lower back pain is better approximated by the General Rating Formula's criteria for "muscle spasm or guarding severe enough to result in an abnormal gait[.]" 38 C.F.R. § 4.71a, General Rating Formula; see also DeLuca, 8 Vet. App. at 206. The Board therefore concludes that a disability rating in excess of 10 percent for a lumbar spine condition prior to November 14, 2017, is not warranted, but that a disability rating of 20 percent for this condition is warranted from November 14, 2017, to December 1, 2019. 38 C.F.R. § 4.71a, DC 5242. Because the evidence of record discussed above does not support the inference that the 40 percent rating criteria have been met, the Board finds that the assignment of such a rating is not warranted during this portion of the rating period on appeal. Id. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against this portion of the Veteran's claim. 38 U.S.C. § 5107. 2. Entitlement to a disability rating in excess of 10 percent for a cervical spine condition prior to December 1, 2019. The Veteran's cervical spine condition is rated as 10 percent disabling under DC 5290. See February 2017 Rating Codesheet at 1. As discussed above, this DC is no longer applicable under the current rating criteria. See 38 C.F.R. § 4.71a, DC 5290 (2003) (addressing limitation of motion of the cervical spine); cf. 38 C.F.R. § 4.71a. The Board has therefore characterized this issue as presented above. Because the Veteran does not have IVDS, the Board will likewise evaluate this condition under DC 5239 and the General Rating Formula. See November 2016 VA Examination Report (Cervical) at 5 (finding no IVDS); see also February 2017 Rating Codesheet at 1 (characterizing cervical spine condition as cervical spondylosis with foraminal stenosis). The General Rating Formula provides that a disability rating in excess of 10 percent is not assigned for a cervical spine condition unless there is forward flexion greater than 15 degrees but not greater than 30 degrees, a combined range of motion not greater than 170 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. 38 C.F.R. § 4.71a, General Rating Formula. The evidence of record does not support the inference that any of these rating criteria have been met. The VA examiner found forward flexion of the cervical spine to 40 degrees. See November 2016 VA Examination Report (Cervical) at 2; see also id. (finding a combined range of motion of 195 degrees); see also id. (noting no flare-ups); see also id. at 3 (finding no additional functional loss with repeated use over time); see also id. (finding no guarding or muscle spasm). The Board briefly notes that the rating decision on appeal also assigned service connection for bilateral radiculopathies of the upper extremities associated with this condition. See February 2017 Rating Decision at 1. However, the Veteran has not appealed the initial disability ratings assigned for such radiculopathies. See March 2017 Notice of Disagreement. Accordingly, these additional ratings are not before the Board at this time. See July 2021 Transcript at 1. The Board has found no evidence in the Veteran's assertions or medical treatment records to contradict these findings for this portion of the rating period on appeal. The Veteran's medical treatment records document ongoing symptoms of pain, including pain of the cervical spine, but do not provide alternative measurements of range of motion as required by the applicable rating criteria. The Board notes the Veteran's assertion that "I can barely look over my shoulder [in] either direction." See July 2021 Transcript at 4. However, as discussed above, a disability rating based on lateral rotation is only applicable where the combined range of motion is less than 170 degrees, which is not demonstrated by the evidence of record. 38 C.F.R. § 4.71a, General Rating Formula. Also as discussed above, the General Rating Formula is applicable with or without symptoms of pain, stiffness, or aching in the area of the spine affected. See 38 C.F.R. § 4.71a, General Rating Formula. Because the applicable rating criteria already contemplate symptoms of pain, and because the VA examiner found that the Veteran did not report flare-ups and that functional limitation of range of motion did not increase with repeated use over time, the Board finds that the Veteran's cervical spine condition is not better approximated by higher rating criteria. DeLuca, 8 Vet. App. at 206. The Board therefore concludes that a disability rating in excess of 10 percent for a cervical spine condition prior to December 1, 2019, is not warranted. 38 C.F.R. § 4.71a, DC 5239. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against the Veteran's claim. 38 U.S.C. § 5107. 3. Entitlement to a disability rating in excess of 10 percent for a left knee condition prior to December 1, 2019. The Veteran's left knee condition is rated as 10 percent disabling under DC 5260. See February 2017 Rating Codesheet at 2. The applicable rating criteria provide that a disability rating in excess of 10 percent is not assigned unless flexion is limited to 30 degrees. 38 C.F.R. § 4.71a, DC 5260. An additional noncompensable disability rating may be assigned under DC 5261 if extension is limited to 5 degrees. See id. at DC 5261; see also VAOPGCPREC 09-04 (providing for separately compensable disability ratings based on limitations of flexion and extension). An additional disability rating of 10 percent may be assigned under this DC if extension is limited to 10 degrees. 38 C.F.R. § 4.71a, DC 5261. Finally, the Board notes that higher or separate disability ratings may be assigned where there is joint instability or a meniscal condition. See Lyles v. Shulkin, 29 Vet. App. 107, 115 (2017). The Board notes that that arthritis may also be compensated under DC 5003. See February 2018 Medical Treatment Records at 3 (providing August 2017 x-ray results observing "mild degenerative changes" of left knee); see also 38 C.F.R. § 4.71a, DC 5003. However, this alternative rating is only applicable where the condition is not compensable based on limitation of range of motion. Id. Because the Veteran's left knee condition is already compensable based on limitation of motion, extended discussion of an alternative disability rating under DC 5003 for this claim is moot. The evidence of record does not support the inference that any of the above rating criteria have been met. The VA examiner found left knee flexion limited to 130 degrees. See November 2016 VA Examination Report (Knee) at 2; see also id. (finding no limitation of extension); see also id. (noting no report of flare-ups); see also id. at 3 (finding no additional functional limitation after repetitive use over time); see also id. at 4-6 (finding no instability); see also id. at 6 (finding no meniscal conditions). The Board has found no evidence in the Veteran's assertions or medical treatment records to contradict the VA examiner's findings discussed above. The Veteran's medical treatment records document ongoing symptoms of pain, including pain of the left knee, but also do not provide alternative measurements of range of motion as required by the applicable rating criteria. Because the VA examiner found that the Veteran did not report flare-ups and that functional limitation of range of motion did not increase with repeated use over time, the Board finds that the Veteran's left knee condition is not better approximated by higher rating criteria. DeLuca, 8 Vet. App. at 206. The Board therefore concludes that a disability rating in excess of 10 percent for the Veteran's left knee condition prior to December 1, 2019, is not warranted. 38 C.F.R. § 4.71a, DC 5260. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against the Veteran's claim. 38 U.S.C. § 5107. REASONS FOR REMAND 4. Entitlement to disability ratings in excess of 10 percent for lumbar spine, cervical spine, and left knee conditions from December 1, 2019. As discussed above, the Veteran previously underwent VA examinations addressing these issues in November 2016. At his hearing, the Veteran asserted that these conditions have subsequently increased in severity, and further specified that the onset of such increases occurred circa the winter of 2019-2020. See July 2021 Transcript at 13-14 (asserting in response to questioning that conditions worsened "[at] the beginning of the COVID... at the end of 2019[,] beginning of 2020"). A prior VA examination will generally remain adequate for adjudication "except to the extent that the claimant asserts that the disability... has undergone an increase in severity since the time of the examination." See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Because the Veteran has asserted that these conditions have increased in severity, remand for an additional examination is warranted prior to adjudicating these claims for this portion of the rating period on appeal. These matters are therefore REMANDED for the following action: 1. Schedule the Veteran for an examination before an appropriately-qualified examiner to evaluate the current severity of the Veteran's service-connected lumbar spine, cervical spine, and left knee conditions. 2. Readjudicate the issues on appeal. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, 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.