Citation Nr: 21007832 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 14-24 949 DATE: February 10, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine prior to March 29, 2018 is denied. Entitlement to an increased initial evaluation of 20 percent, and no higher, from March 29, 2018, to September 23, 2020, is granted. Entitlement to an initial evaluation in excess of 20 percent since September 23, 2020, is denied. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to degenerative arthritis of the lumbar spine, is remanded. Entitlement to service connection for a right knee disability, to include as secondary to degenerative arthritis of the lumbar spine, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression, to include as secondary to degenerative arthritis of the lumbar spine, is denied. FINDINGS OF FACT 1. Prior to March 29, 2018, the Veteran’s degenerative arthritis of the lumbar spine manifested as forward flexion greater than 60 degrees but not more than 80 degrees. 2. Since March 29, 2018, the Veteran’s degenerative arthritis of the lumbar spine manifested as no worse than forward flexion to 45 degrees. CONCLUSIONS OF LAW 1. The criteria for an increased initial rating in excess of 10 percent for degenerative arthritis of the lumbar spine prior to March 29, 2018 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 – 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for an increased rating of 20 percent for degenerative arthritis of the lumbar spine are met from March 29, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 – 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. The criteria for an evaluation in excess of 20 percent for degenerative arthritis of the lumbar spine since September 23, 2020, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 – 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1978 to February 1981. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision by the Atlanta, Georgia Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at a May 2019 hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. These matters were remanded by the Board in May 2019 for additional development. With regard to evaluation of the low back, the RO has complied with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in March 2010, April 2010 and May 2010. The RO associated the Veteran’s service and VA private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 – 127, (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran is seeking an increased disability rating, in excess of 10 percent for his degenerative arthritis lumbar spine prior to September 23, 2020 and in excess of 20 percent thereafter. The Veteran’s disability has been assigned a rating under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Code 5003, for degenerative arthritis, does not permit assignment of an evaluation greater than the currently rated 10 percent, and so will not be discussed further. 38 C.F.R. § 4.71a, Code 5003. The spine codes permit evaluation under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined, when disc disease is diagnosed, as here. The former is based on range of motion and the latter on the cumulative amount of time a Veteran was incapacitated in the prior year. 38 C.F.R. § 4.71a, Codes 5235-5243. An “incapacitating episode” for purposes of totaling the cumulative time is defined as “period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. As no instances of incapacitation under the regulations are shown, the Formula for Rating IVDS is not for application. Pursuant to the general rating criteria for diseases and injuries of the spine, a 10 percent evaluation is warranted 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 by not greater than 235 degrees. A 20 percent evaluation 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 in abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A higher evaluation of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine. The highest evaluation of 100 percent is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. VA regulations define normal range of motion of the lumbar spine as flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees, and rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Private medical records from July and August 2010 reflect the Veteran received lumbar epidural injections for treatment of his back pain. The Veteran underwent a VA contract spine examination in November 2010. Subjective complaints included limitations in walking due to his spine condition such as he is able to walk about 300 yards; experiencing falls due to spine condition; and symptoms of fatigue, stiffness, spasms, decreased motion, paresthesia and numbness, weakness of the spine, leg and foot. Pain was described as constant and severe, located in lower back. Pain is exacerbated by physical activity, stress and prolonged sitting and standing. Physical examination revealed no evidence of radiating pain on movement. Muscle spasms were absent, lumbar tenderness was present. No guarding of movement nor any weakness was present. Muscle tone and musculature were normal. No ankylosis of the thoracolumbar spine was present. No incapacitating episodes were reported. Range of motion was flexion to 85 degrees with pain at 85 degrees, and extension to 30 degrees. Joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The VA contract examiner noted that x-rays findings revealed degenerative arthritis changes. The VA contract examiner diagnosed degenerative arthritis of lumbar spine. VA treatment records include a physical therapy consult dated March 29, 2018 which revealed forward flexion of the lumbar spine to 45 degrees and limited lumbar extension. At an April 2, 2018 physical medicine consult, the Veteran described experiencing pain in lower lumbar, midline which was constant, dull and “throbbing.” At his May 2019 hearing, the Veteran testified that his back condition had increased in severity since his 2010 VA contract examination. The Veteran underwent a VA contract thoracolumbar spine examination in September 2020. The VA contract examiner noted the Veteran’s diagnosis of degenerative arthritis of the thoracolumbar spine. The Veteran reported a progression due to increased pain and weakness and dull constant pain described as 5 out of 10 in his lower back that increases to 10 out of 10 with repetitive activity. Flare-ups were described as occurring once a week, 10 out of 10 in intensity and lasting for 6 to 18 hours. Physical examination revealed forward flexion from 0 to 45 degrees, extension 0 to 20, right lateral flexion from 0 to 20 degrees, left lateral flexion from 0 to 25, right and left lateral rotation from 0 to 30 degrees. Pain was noted on examination in forward flexion, extension and bilateral lateral flexion, and caused functional loss. There was evidence of pain with weight bearing. There was no evidence of localized tenderness or pain on palpation of the thoracolumbar spine. Repetitive use testing resulted in pain which caused additional loss of range of motion as follows: forward flexion from 0 to 35 degrees, extension from 0 to 15 degrees, bilateral lateral flexion from 0 to 20 degrees and bilateral lateral rotation from 0 to 25 degrees. Pain, weakness, fatigability and incoordination were not found to significantly limit functional ability with flare-ups. Guarding was present but did not result in abnormal gait or abnormal spinal contour. No incapacitating episodes were reported. No additional contributing factors of disability were noted. Muscle strength test results were normal for right lower extremity; muscle strength was 4 out of 5 on knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. Reflexes were normal. Sensory examination revealed decreased sensation in right foot/toes and left upper anterior thigh, thigh/knee; sensation to light touch was absent in left lower leg/ankle and left foot/toes. No ankylosis of the spine was present. The Veteran reported occasional use of a walker for assistance with ambulation. Prior to March 29, 2018 The Board has carefully considered all evidence and potentially applicable diagnostic codes, including the DeLuca factors, and finds that the disability picture of the Veteran’s lumbar spine disability does not more nearly approximate the rating criteria of a higher disability level prior to March 29, 2018. The Veteran did not have flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or 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 in abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Motion is, at worst, limited to forward flexion to 85 degrees warranting the currently assigned 10 percent rating, even upon consideration of the functional impact of pain with use. The evidence of records does not show that the Veteran’s overall disability picture warrants the assignment of a 20 percent disability evaluation under the General Rating Formula for Diseases and Injuries of the Spine, nor a 20 percent disability under the Formula for Rating IVDS Based on Incapacitating Episodes. Therefore, the Board finds that an evaluation in excess of 10 percent for the Veteran’s degenerative arthritis of the lumbar spine disability is not warranted. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a higher rating. 38 C.F.R. §§ 4.7, 4.21. Since March 29, 2018 The Board has carefully considered all evidence and potentially applicable diagnostic codes, including the DeLuca factors, and finds that the disability picture of the Veteran’s lumbar spine disability approximates the rating criteria of the 20 percent disability evaluation as of March 29, 2018. The 20 percent disability evaluation had been assigned effective September 23, 2020 based on the findings of the September 2020 VA spine examination. However, after a thorough review of the file the Board finds the Veteran met the criteria associated with the 20 percent disability evaluation as of March 29, 2018. A VA treatment note shows that, as of March 29, 2018, the Veteran’s range of motion of the lumbar spine was limited to flexion to 45 degrees. The Board finds that the disability picture of the Veteran’s lumbar spine, with consideration of the DeLuca factors, does not more nearly approximate the rating criteria of a higher disability level from March 29, 2018. The Veteran did not have flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Motion is, at worst, limited to forward flexion to 35, on repetitive use testing, warranting the currently assigned 20 percent rating, even upon consideration of the functional impact of pain with use. The evidence of records does not show that the Veteran’s overall disability picture warrants the assignment of a 40 percent disability evaluation under the General Rating Formula for Diseases and Injuries of the Spine, nor a 40 percent disability under the Formula for Rating IVDS Based on Incapacitating Episodes. Therefore, the Board finds that an evaluation in excess of 20 percent for the Veteran’s degenerative arthritis of the lumbar spine disability is not warranted at any point during the appellate period. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a higher rating. 38 C.F.R. §§ 4.7, 4.21. REASONS FOR REMAND The opinions offered with respect to the left and right knees and an acquired psychiatric disorder are inadequate and require remand. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Knees The September 2020 VA contract examiner concluded that the currently diagnosed right and left knee disabilities were not caused or aggravated by the service-connected low back disability. Her opinion is utterly lacking in rationale; she effectively stated there is no nexus or aggravation because no other medical provider said there was. She recited the Veteran’s theory of entitlement, that his low back condition has caused an altered gait that impacted his knees, but rejected such summarily because there was no documentation of a connection. The examiner also raised and failed to address a theory of direct service connection, noting a right knee injury in service. In this regard another contract provider in November 2020 offered a well-reasoned opinion explaining why the documented in-service right knee injury less likely than not was related to current problems. Unfortunately, he did not address the question of secondary service connection, and remand is required for such. Acquired Psychiatric Disorder The Veteran was afforded a mental disorders examination with a VA contract examiner in September 2020. The examiner opined the Veteran’s currently diagnosed depression was less likely than not caused or aggravated by his service-connected low back disability. Instead, the depression was due to financial distress, compounded by unemployment, and “major health issues,” to include his nonservice-connected congestive heart failure, multiple strokes, right eye blindness, and limited mobility from cardiovascular disease. As he “barely mentioned” his back, such was not a “clinically significant cause.” Depression also pre-dated his back arthritis. “[I]t is clear that his degenerative arthritis did not cause or aggravate to any significant extent his current Major Depressive Disorder.” While the opinion is supported by a clear rationale, the possibility of some causative or aggravating role for service-connected conditions remains open. The examiner discussed the impact of the back, but did not clearly indicate if associated bilateral lower extremity radiculopathy was factored in. As impaired mobility was cited as contributing to depression, and the radiculopathies could reasonably impact such, a clear statement is necessary. Additionally, as the prospect of service connection for the knees remains pending, such should also be considered by the examiner. The matters are REMANDED for the following action: 1. Associate with the claims file updated VA treatment records. 2. Return the claims file to the VA contract examiner who offered the November 2020 addendum opinion. If he is not available, another qualified clinician, other than she who offered the September 2020 opinions, may be consulted. The claims folder must be reviewed in its entirety, and the reviewer must opine as to whether it is at least as likely as not the Veteran’s service-connected low back disability with lower extremity radiculopathy has caused or aggravated current left and/or right knee disabilities. The reviewer must specifically address whether service-connected conditions have caused or contributed to an altered gait, affecting the biomechanics of the body and contributing to knee disabilities. 3. Return the claims file to the VA contract examiner who conducted the September 2020 mental disorders examination. If that examiner is not available, another qualified clinician may be consulted. The examiner, following review of the claims file, must opine as to whether service-connected conditions, caused or aggravated the Veteran’s depression. The examiner should consider the low back disability and left and right leg radiculopathy, and for purposes of opining, should consider the left and right knee disabilities as service-connected. The rationale should address how these conditions impact the Veteran’s “limited ability to walk” as a contributing factor to depression. 4. Then, readjudicate the claims on appeal. If any benefit sought remains denied, issue a supplemental statement of the case and, following appropriate time for response, return the matter to the Board for further consideration. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Lunger, 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.