Citation Nr: 21007946 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-12 964 DATE: February 11, 2021 ORDER A rating in excess of 20 percent for cervical spine anterior fusion with spinal stenosis and degenerative arthritis (cervical disability) is denied. A rating in excess of 10 percent for right knee chondromalacia patella with degenerative changes (right knee disability) is denied. A rating in excess of 10 percent for left knee chondromalacia patella (left knee disability) is denied. A separate 10 percent rating for left knee instability is granted. A rating in excess of 20 percent for right clavicle fracture, rotator cuff tendonitis, and acromioclavicular joint osteoarthritis (right shoulder disability) is denied. REMANDED Service connection for lumbar spine disability is remanded. Service connection for gastrointestinal disability, to include irritable bowel syndrome (IBS), is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding forward flexion of the cervical spine limited to 15 degrees or favorable ankylosis of the entire cervical spine. 2. The preponderance of the evidence is against finding flexion of the right knee limited to 30 degrees or extension limited to 15 degrees. 3. The preponderance of the evidence is against finding flexion of the left knee limited to 30 degrees or extension limited to 15 degrees. 4. Resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran’s left knee produced slight instability. 5. The preponderance of the evidence is against finding motion of the right arm limited to midway between side and shoulder. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for cervical spine disability 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) 5242. 2. The criteria for a rating in excess of 10 percent for right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5003, 5256-5263. 3. The criteria for a rating in excess of 10 percent for left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5003, 5256-5263. 4. The criteria for a separate 10 percent rating for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. 5. The criteria for a rating in excess of 20 percent for right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty from April 1986 to April 2008. The Veteran appeared for a hearing before the undersigned Veterans Law Judge in May 2018. The hearing transcript is associated with the claims file. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 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 range-of-motion testing. 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). 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.”). 1. Entitlement to a rating in excess of 20 percent for cervical spine disability The Veteran is assigned a 20 percent rating for cervical spine anterior fusion with spinal stenosis and degenerative arthritis (cervical disability) for the entire appeal period. See September 2020 rating decision. As this is not a full grant of the benefit sought, the claim remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). Under the General Rating Formula for Diseases and Injuries of the Spine, a 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. To warrant a rating in excess of 20 percent for cervical spine disability, the evidence must show forward flexion limited to 15 degrees or favorable ankylosis of the entire cervical spine. A March 2014 VA examination noted normal cervical forward flexion with no evidence of painful motion. The Veteran denied flare-ups. The clinician stated there were no contributing factors of pain, weakness, fatiguability or incoordination that would result in additional limitation of functional ability during flare-ups or repeated use over time. There was no evidence of ankylosis. At a May 2018 Board hearing, the Veteran reported a 2013 cervical fusion, which initially resolved his neck pain, but his neck pain returned. He reported muscle spasms and cramping that were painful and made it difficult to turn his head. At a December 2019 VA examination, the Veteran reported his neck was in pain all the time. Range of motion testing showed forward flexion to 30 degrees. The clinician opined that pain would not additionally limit the Veteran’s functional ability with repeated use over time or flare-ups. There was no evidence of ankylosis. The preponderance of the evidence is against finding forward flexion of the cervical spine limited to 15 degrees or favorable ankylosis of the entire cervical spine. The Board gives probative weight to the March 2014 and December 2019 VA examination findings. These findings were made after interview and examination of the Veteran. The examiners found that range of motion would not be additionally limited by repeated use over time or flare-ups. The Board considered the Veteran’s lay reports of muscle spasms and cramping that were painful and made it difficult to turn his head. Even considering these lay reports, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating forward flexion of the cervical spine to 15 degrees or favorable ankylosis of the entire cervical spine. Regarding neurological impairment, the Veteran is already service connected for right upper extremity radiculopathy and left upper extremity radiculopathy for the entire appeal period. See September 2020 rating decision. The lay and medical evidence of record is against finding the Veteran has other neurological abnormality associated with his cervical spine disability. For the foregoing reasons, the preponderance of the evidence is against a rating in excess of 20 percent for cervical spine disability. 2. Entitlement to a rating in excess of 10 percent for right knee disability 3. Entitlement to a rating in excess of 10 percent for left knee disability The Veteran is assigned a 10 percent rating for right knee chondromalacia patella with degenerative changes (right knee disability) and a 10 percent rating left knee chondromalacia patella (left knee disability) for the entire appeal period. See September 2020 rating decision. As this is not a full grant of the benefit sought, the claim remains in appellate status. Limitation of leg motion is governed by diagnostic codes (DC) 5260 and 5261. Under DC 5260, a 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. Under DC 5261, a 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a. Standard motion of a knee joint is from 0 degrees extension to 140 degrees flexion. Id., Plate II. To warrant a rating in excess of 10 percent for the knee based on limited motion, the evidence must show flexion limited to 30 degrees or extension limited to 15 degrees. At a March 2014 VA examination of the knees, the Veteran reported occasional stiffness. The Veteran did not report flare-ups. Range of motion testing was normal without evidence of pain. Joint stability testing was normal, including anterior instability, posterior instability, and medial lateral instability. The clinician stated there were no contributing factors of pain, weakness, fatiguability or incoordination that would result in additional limitation of functional ability during flare-ups or repeated use over time. At a May 2018 Board hearing, the Veteran reported his knees hurt all the time. He reported his left knee is worse than his right. He reported his knees give out on him. He reported he usually is able to catch himself, but has fallen to the ground. At a December 2019 VA examination of the knees, the Veteran reported progressing knee pain. He reported flare-ups to his knees when using a ladder, kneeling, walking 10 minutes, or with weather changes. Range of motion testing for both knees was 0 to 125 degrees. The clinician opined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time or flare-ups. Joint stability testing was normal, including anterior instability, posterior instability, and medial lateral instability. The Veteran used bilateral knee braces and a cane for knee pain. The clinician opined the Veteran would have difficulty with employment involving walking or lifting. The Board finds preponderance of the evidence is against finding either knee produced flexion limited to 30 degrees or extension limited to 15 degrees during the appeal period. The Board gives probative weight to the March 2014 and December 2019 VA examination findings. These findings were made after interview and examination of the Veteran. The examiners found that range of motion would not be additionally limited by repeated use over time or flare-ups. These findings are consistent with treatment records during the appeal period reporting knee pain and recording range of motion, at worst, from 3 to 115 degrees for the right knee and 0 to 110 degrees for the left knee. See March 2018 and April 2019 treatment records. The Board considered other diagnostic codes pertaining to the knee. Under DC 5257, a 10 percent rating is warranted for slight subluxation or lateral instability. A 20 percent rating is warranted for moderate subluxation or lateral instability. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran’s left knee disability produced slight instability. Looking to the evidence during the appeal period, a July 2016 treatment visit noted recent left knee instability after stepping down on it and feeling it give out. An April 2019 treatment visit noted a recent onset of left knee instability. He reported his left knee buckled 3 or 4 times recently causing him to fall. The Board does not find evidence moderate or severe instability. Joint stability testing performed during treatment visits and VA examinations throughout the appeal period were normal. The evidence shows infrequent falls. The Veteran uses a brace and cane, but does not require a walker or wheelchair. The Board finds the preponderance of the evidence is against finding right knee instability. Looking to the evidence during the appeal period, the Veteran did not report right knee instability or giving way at his treatment visits. As the Veteran had numerous visits for knee pain during the appeal period and reported left knee instability and giving way, the Board finds this is the type of symptom the Veteran would report and would be recorded in treatment notes. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Additionally, joint stability testing performed during treatment visits and VA examinations throughout the appeal period were normal. The Board considered the Veteran’s use of a right knee brace and cane, but finds the use of a brace and cane is not necessarily evidence of instability. The Board finds the Veteran’s statements at treatment visits and joint stability testing performed during the appeal period more probative. The evidence does not support, nor has the Veteran contended, ankylosis, dislocated semilunar cartilage with frequent episodes of locking, pain and effusion, impairment of the tibia and fibula, or genu recurvatum, to warrant a rating under another diagnostic code. 38 C.F.R. § 4.71a, DC 5256-5263. In conclusion, the Board finds the preponderance of the evidence is against a rating in excess of 10 percent for right knee disability or left knee disability. The Board finds a separate 10 percent rating for left knee instability is warranted. 4. Entitlement to a rating in excess of 20 percent for right shoulder disability The Veteran is assigned a 20 percent rating for right clavicle fracture, rotator cuff tendonitis, and acromioclavicular joint osteoarthritis (right shoulder disability) for the entire appeal period. See September 2020 rating decision. As this is not a full grant of the benefit sought, the claim remains in appellate status. Different ratings are available for the dominant (major) and non-dominant (minor) side. The Veteran is right arm dominant, so the right shoulder is his major side. 38 C.F.R. § 4.69. Under DC 5201, limitation of motion of the arm midway between side and shoulder warrants a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a. Any limitation of motion of a single arm at the shoulder joint constitutes a single disability, and only a single rating may be awarded for each arm under DC 5201, regardless of the number of planes of limited motion (i.e., flexion, abduction, or rotation). Yonek v. Shinseki, 722 F.3d 1355, 1358-59 (Fed. Cir. 2013). To warrant a rating in excess of 20 percent under DC 5201, the evidence must show limitation of motion of the arm midway between side and shoulder. At a March 2014 VA examination for the shoulder, range of motion testing was normal. The Veteran did not report flare-ups. The clinician stated there were no contributing factors of pain, weakness, fatiguability or incoordination that would result in additional limitation of functional ability during flare-ups or repeated use over time. There was no evidence of ankylosis. At a May 2018 Board hearing, the Veteran reported pain when trying to lift his arm above shoulder level. He denied dislocation or locking. At a December 2019 VA examination, the Veteran reported right shoulder pain. Range of motion testing showed flexion to 150 degrees, abduction to 120 degrees, external rotation to 55 degrees, and internal rotation to 55 degrees. Pain was noted on examination, but did not result in functional loss. The Veteran did not report flare-ups. The examiner opined that pain, weakness, fatigability or incoordination would not significantly limit functional ability with repeated use over time or flare-ups. The clinician opined the Veteran would be unable to perform employment which required use of upper arm, lifting above the head, or lifting weight. The preponderance of the evidence is against finding the Veteran’s right arm motion limited to midway between side and shoulder. The Board gives probative weight to the March 2014 and December 2019 VA examination findings. These findings were made after interview and examination of the Veteran. The examiners found that range of motion would not be additionally limited by repeated use over time or flare-ups. The findings are consistent with the Veteran’s lay statements that he experiences pain when trying to lift his arm above shoulder level. The evidence does not support, nor has the Veteran contended, consideration under another diagnostic code of the shoulder that would provide for a higher disability rating. See 38 C.F.R. § 4.71a. In conclusion, the Board finds the preponderance of the evidence is against a rating in excess of 20 percent for right shoulder disability. REASONS FOR REMAND 1. Service connection for lumbar spine disability The Veteran reports chronic low back pain since a fall from a tree during service. An October 2020 VA examination and opinion stated there was no evidence of back pain during service. A review of the record shows numerous STR for back pain during service, including a September 1992 visit reporting back pain after a fall from a tree. It appears the examiner relied on an inaccurate factual premise in forming his opinion. Therefore, an addendum medical opinion is needed. 2. Service connection for gastrointestinal disability, to include IBS The Veteran contends gastrointestinal symptoms, specifically gas and diarrhea, are related to his Persian Gulf War service. An October 2020 VA medical opinion stated the Veteran did not have IBS and stated there was not evidence of a chronic condition, as there was only one 2008 treatment visit for functional diarrhea. A review of the record shows STR reporting diarrhea. Post-service treatment records show an October 2008 treatment visit reported a long history of diarrhea with symptoms worsening over the years. The clinician assessed functional diarrhea, suspect IBS with predominant diarrhea. A June 2010 treatment visit reported chronic recurrent stomach issues characterized by intermittent diarrhea, constipation, and stomach pain. At his May 2018 hearing and December 2019 VA examination, the Veteran reported chronic gas and diarrhea since service, with some improvement with Prilosec and food modification. It appears the examiner relied on an inaccurate factual premise in forming his opinion. Therefore, an addendum medical opinion is needed. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s lumbar spine disability. An in-person examination is not required unless deemed necessary by the clinician. The clinician must: (a.) Identify all lumbar spine disabilities found during the appeal period. (b.) If arthritis is identified, is it at least as likely as not (50 percent or greater probability) it manifested during service, manifested within a year of separation from service, or is otherwise related to service? (c.) For any other lumbar spine disability identified, is it at least as likely as not it manifested during service or is related to service? The clinician should consider the numerous STR for back pain and the Veteran’s lay statements that he experienced chronic low back pain during service and since separation from service. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. 2. Obtain an addendum opinion from an appropriate clinician regarding any gastrointestinal symptoms. An in-person examination is not required unless deemed necessary by the clinician. The clinician must: (a.) Identify any objective indications of gastrointestinal disability during the appeal period. “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). The clinician should consider STR noting diarrhea, post-service treatment records reporting a long history of diarrhea and recurrent stomach problems, and the Veteran’s lay statements that he experienced gas and diarrhea since 2004, with some relief from Prilosec and diet modification. The Board makes no determination, express or implied, concerning the credibility of any lay statements on file. (b.) By history, physical examination, or laboratory testing, can the Veteran’s objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the clinician should so indicate. There is no requirement that the clinician provide a diagnosis of undiagnosed illness. (c.) If the Veteran’s objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness was not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran’s departure from service during the Persian Gulf War? The clinician should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. (d.) If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran’s disability (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran’s specific case and cannot be based on the etiology of the disease or disability population as a whole. (e.) If both the etiology and pathophysiology are partially understood or fully understood, is it at least as likely as not (50 percent or greater probability) the Veteran’s diagnosed disability was incurred in service or is otherwise related to service? (f.) If both the etiology and pathophysiology are partially understood or fully understood, and the diagnosed disability is determined not to be incurred in service or otherwise related to service, is it at least as likely as not the Veteran’s diagnosed disability was (1) proximately due to or (2) aggravated beyond its natural progression by his service-connected GERD and hiatal hernia? KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Winkler, 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.