Citation Nr: 21007228 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-18 613 DATE: February 9, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for a low back disorder is denied. REMANDED Entitlement to higher staged ratings for a right knee disorder is remanded. Entitlement to a total disability rating for compensation purposes due to individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s low back disorder has not manifested any ankylosis or incapacitating episodes of invertebral disc syndrome (IVDS) having a total duration of at least 6 weeks during the rating period to the extent that a higher rating may be assigned. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 40 percent for a low back disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1989 to June 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). In July 2018, the Board remanded these matters for further development. The agency of original jurisdiction (AOJ) was asked to obtain VA examinations reflecting the current severity of the Veteran’s low back and right knee disorders. The claim of TDIU was remanded as an intertwined claim. The Veteran underwent VA examinations in October 2018. He declined to perform range of motion testing because of pain and stiffness. He reported flare-ups of low back and right knee symptoms, and the examiner concluded that she could not opine as to functional loss during such periods without resorting to speculation because she found that “there is no conceptual or empirical basis for such a determination without directly observing function under these conditions.” The Board finds that the examination reports do not comply with the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups and that an estimate of lost range of motion may be given even in the absence of direct observation by the examiner. The Court also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. As the examiner did not provide an estimate of functional loss during flare-ups, further remand is necessary for the claim for higher staged ratings for a knee disorder and intertwined TDIU. However, the Board notes that the Veteran has received the highest allowable rating for limited motion of the thoracolumbar spine under the rating schedule for the entire appeal period. See 38 C.F.R. §§ 4.71a, DC 5237. Thus, there is no basis to award a higher rating due to lost range of motion during flare-ups. As such, the Board finds that a further remand of the low back disorder would serve no purpose and needlessly delay adjudication without benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). Moreover, the Board notes that a December 2014 VA examination report was procured during a flare-up and, thus, reflects the level of functional loss during such periods. Considering the foregoing, the Board will proceed with a decision on the merits of that claim. The Board also notes that a March 2020 rating decision granted a 20 percent rating for the right knee disorder, and granted service connection for radiculopathy of the right and left lower extremities. The grant of a 20 percent rating for the right knee disorder is considered a partial grant, and the matter remains within the Board’s jurisdiction. AB v. Brown, 6 Vet. App. 35 (1993). The grants of service connection for radiculopathy are not within the Board’s jurisdiction because the Veteran has not filed a Notice of Disagreement with the evaluations assigned in the March 2020 rating decision. See 38 U.S.C. §§ 7104(a), 7105. Legal Criteria – Rating Disabilities Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 1. Entitlement to a rating in excess of 40 percent for a low back disorder The Board finds that the most probative evidence does not support the claim of entitlement to a rating in excess of 40 percent for a low back disorder. Therefore, the claim is denied. Disabilities of the spine are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, at 38 C.F.R. § 4.71a, a 40 percent rating is warranted for limitation of 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 if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate diagnostic code. Id. at Note (1). Under the Formula for Rating IVDS, a 10 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted for IVDS 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 disability rating is warranted for IVDS with 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 disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic 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. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. The Veteran has received a 40 percent rating for his low back disorder for the entirety of the rating period. See Rating Decision – Codesheet, March 2020. To qualify for a higher rating, his disorder would have had to manifest unfavorable ankylosis of the thoracolumbar spine or episodes of IVDS lasting for at least six weeks requiring bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, DC 5237. The Board has reviewed VA examination reports dated August 2012 and December 2014. Neither of these reports documented any ankylosis or IVDS. The Veteran underwent another VA examination in October 2018. He presented to the appointment in a wheelchair, but was able to stand on his own and climb onto the stretcher. He complained of symptoms including severe back pain, throbbing, numbness, lower extremity radiculopathy, and flare-ups 2 to 3 times each month. He stated that he was bedridden for four months and had difficulties getting up to use the toilet due to his pain. The examiner found no evidence of ankylosis. She diagnosed IVDS, but found that the record did not support any episodes of acute signs and symptoms of IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. She noted that the Veteran was able to drive himself to the clinic and lift his wheelchair in and out of the car. The Board has reviewed the Veteran’s private and VA medical records. However, such records do not show evidence of unfavorable ankylosis of the lumbar spine or episodes of IVDS requiring bed rest prescribed by a physician and treatment by a physician to the extent that a higher rating is appropriate. 38 C.F.R. § 4.7. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise in the claim of entitlement to a rating in excess of 40 percent for a low back disorder. The record does not reflect medical evidence of ankylosis or IVDS episodes lasting at least six weeks to the extent that a higher rating may be assigned. See 38 C.F.R. §§ 4.2, 4.7, 4.71a, DC 5237, 5243. The Board is aware that the Veteran stated that he was “bedridden” for four months at the October 2018 VA examination. However, the record does not show that any such bed rest was prescribed by a physician, as is required for a higher rating under the criteria for IVDS. 38 C.F.R. § 4.71a, DC 5243 Note (1). A referral for a rating on an extraschedular basis is not warranted because the record does not show that the low back disorder manifested exceptional or unusual functional impairment not contemplated by the rating schedule. 38 C.F.R. § 3.321(b). In sum, the claim of entitlement to a rating in excess of 40 percent for a low back disorder is denied. REASONS FOR REMAND 2. Entitlement to higher staged ratings for a right knee disorder is remanded. As stated previously, the claim for higher staged ratings for the right knee disorder must be remanded for a new VA examination compliant with the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner must consider the Veteran’s reports of flare-ups, and estimate the extent of any additional functional loss during such periods expressed in degrees of lost range of motion. 3. Entitlement to a TDIU is remanded. The claim of TDIU remains inextricably intertwined with the claim for higher staged ratings for a right knee disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Please secure for the record copies of complete updated clinical records of all VA and non-VA treatment the Veteran has received for the disorders on appeal. 2. Schedule the Veteran for a VA examination to determine the current severity of his right knee disorder. The examiner should provide a full description of the disorder and report all signs and symptoms necessary for evaluating it under the rating criteria. Range of motion testing must be conducted on active and passive motion, in weightbearing and non-weightbearing, and of the opposite joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why this is the case. (Continued on the next page)   The examiner is asked to elicit information on the characteristics, severity, frequency, and duration of the Veteran’s flare-ups, and then estimate the extent of any additional functional loss during such periods. If such an estimate cannot be provided, the examiner must indicate that all procurable and assembled data has been considered, and that the inability to provide an estimate results from limitations in the knowledge of the medical community, and not limitations of personal knowledge. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.