Citation Nr: 21009100 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 15-26 695 DATE: February 19, 2021 ORDER A rating in excess of 40 percent for low back strain is denied. REMANDED Entitlement to service connection for a right knee disorder, claimed as secondary to service-connected low back strain, is remanded. Entitlement to service connection for a left knee disorder, claimed as secondary to service-connected low back strain, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT For the entire appeal period, the Veteran’s low back strain is manifested by forward flexion limited to 30 degrees or less, without ankylosis, intervertebral disc syndrome (IVDS), or associated objective neurologic abnormalities. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent rating for low back strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 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 from January 1987 to May 1988. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in August 2012 and May 2014 by a Department of Veterans Affairs (VA) Regional Office. In October 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In October 2019, the Board remanded the case for additional development. While on remand, a November 2020 rating decision increased the rating for the Veteran’s low back strain from 10 percent to 40 percent, effective April 30, 2012, the date of receipt of her increased rating claim. However, as she is presumed to be seeking the maximum available benefit for such disability, and higher ratings remain available on appeal, such claim remains viable on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The case now returns for further appellate review. 1. Entitlement to a rating in excess of 40 percent for low back strain. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The appeal period before the Board begins on April 30, 2012, the date VA received the Veteran’s claim for an increased rating for her back disability, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, such disability has been rated as 40 percent disabling pursuant to DC 5237, which provides that lumbosacral or cervical strain is rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. However, the Veteran contends she is entitled to an increased rating for her service-connected back disability because such is more severe than as reflected by the currently assigned rating as it results in the inability to stand/walk/sit for greater than 10 minutes, and limits her ability to bend, twist, push, pull, cook, clean, dress, and bathe independently. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. As relevant, such provides for 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; or unfavorable ankylosis of the entire cervical spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1): Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. IVDS may be evaluated under either the General Rating Formula or the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.25 (combined ratings table). In this regard, the IVDS Rating Formula provides that a 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. For the entire appeal period, the Veteran’s back disability is evaluated as 40 percent disabling. Thus, in order to warrant a higher rating, the evidence must demonstrate unfavorable ankylosis of the entire thoracolumbar spine or entire spine, or IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. In this regard, the evidence reflects that, while the Veteran has limited range of motion of her lumbar spine, such does not result in ankylosis. Specifically, at the July 2012 VA examination, she had flexion to 90 degrees and extension to 20 degrees, to include following repetitive use. Additionally, private treatment records from Gulf Coast Therapy dated in March 2013 reveal the Veteran had lumbar flexion to 30 degrees and extension to 20 degrees. Additionally, while an April 2013 back questionnaire, completed by the Veteran’s private physician, Dr. R.M., reflects that she had limitation of motion of the spine, no ankylosis was noted. Finally, a December 2019 VA examination reflects that, while the Veteran’s range of motion of her spine was very limited with forward flexion to 30 degrees and extension to 5 degrees, she was still capable of motion. Moreover, the examiner determined the Veteran did not have ankylosis of the thoracolumbar spine. Consequently, absent evidence of ankylosis, the Veteran is not entitled to a rating in excess of 40 percent for her low back strain under the General Rating Formula. As pertinent to Note (1) of the General Rating Formula, which provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code, the Board notes that, in addition to the Veteran’s service-connected low back strain, she is also diagnosed with lumbar spine degenerative joint disease (DJD) and degenerative disc disease (DDD), the latter of which results in radiculopathy of the bilateral lower extremities. However, the July 2012 VA examiner opined that such disorders were unrelated to the Veteran’s diagnosis of mechanical back strain as low back pain involves soft tissue of muscle and ligaments of the spinal region, but DJD and DDD are degenerative processes involving the discs and vertebral bodies. Furthermore, the December 2019 VA examiner found that the Veteran’s bilateral lower extremity radiculopathy is related to her diagnoses of DDD and spinal stenosis, which are unrelated to her service-connected lumbar strain as the latter disorder involves the soft issue of the low back while the former disorders involves the vertebrae. Consequently, as the evidence of record clearly shows that the Veteran’s radiculopathy of the bilateral lower extremities results from a nonservice-connected disability, separate ratings for such are not warranted. Likewise, as the July 2012 and December 2019 VA examinations, as well as the remainder of the evidence of record, fail to reflect any objective neurologic abnormalities associated with the Veteran’s service-connected low back strain, separate ratings under Note (1) are not warranted. Furthermore, there is no evidence that the Veteran’s service-connected low back strain results in IVDS. In this regard, such was not found on examination in July 2012 and, while such was diagnosed at the December 2019 VA examination, the examiner found that such disorder is unrelated to the Veteran’s service-connected low back strain. Consequently, a higher rating under the IVDS Formula is not warranted. In making its determination in this case, the Board acknowledges the Veteran’s belief that her back disability is more severe than as reflected by the currently assigned rating. While the Board recognizes that the Veteran is competent to provide statements regarding her observable symptomatology, she is not competent to provide an opinion regarding the severity of her symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged her reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his reports regarding the severity of such condition. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected back disability; however, such disability has remained stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim addressed herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the Board finds that an increased rating for the Veteran’s back disability is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to service connection for a right knee disorder, claimed as secondary to service-connected low back strain. 3. Entitlement to service connection for a left knee disorder, claimed as secondary to service-connected low back strain. As noted in the October 2019 remand, the evidence does not show, and the Veteran does not contend, that her currently bilateral knee disorders, diagnosed as status post bilateral total knee replacement with arthritis and right knee status post medial meniscus tear (see December 2019 VA examination) had their onset during service, or are directly related to any aspect of her military service. Rather, she alleges that such disorders were aggravated by her service-connected low back strain. Specifically, at her October 2018 Board hearing, she reported that she overcompensated for her back pain by putting more pressure on her knees, which resulted in additional bilateral knee pain and other symptoms. In this regard, the Veteran underwent a VA examination in July 2012, at which time the examiner found that the Veteran’s bilateral knee disorders were less likely than not proximately due to or the result of her service-connected back disability. As rationale for the opinion, he reported that, as per a preponderance of medical literature, mechanical low back pain did not cause knee meniscus tear, arthritis, or need in partial knee replacement (i.e., no medical nexus). The examiner further reported that there were multiple medical articles that indicated that age, combined with increased axial load due to increased BMI, were significant risk factors of arthritis. Here, the examiner explained that the Veteran’s BMI was 40.4, which corresponded to a very significant arthritis risk factor. Consequently, he concluded that the Veteran’s bilateral knee disorders were not caused, related, or aggravated by her service-connected back disability. However, as the VA examiner did consider the Veteran’s report that she overcompensated for her back pain by putting more pressure on her knees, which resulted in additional bilateral knee pain and other symptoms, and did not offer a rationale for his opinion that her bilateral knee disorders were not aggravated by her back disability, Board remanded the case in October 2019 in order to obtain an addendum opinion addressing such matters. In December 2019, the Veteran underwent another VA examination. As pertinent to the right knee, the examiner stated that medical literature does not support the claim that arthritic changes in the knee cause arthritic changes in the opposing knee. She further indicated that medical literature does not support the claim that total knee arthroplasty in the (right) knee causes arthritic changes in the opposing (left) knee. Thus, the examiner opined that the Veteran’s right knee arthritis is likely due to increasing age and her elevated BMI. Specific to her left knee, she stated that medical literature does not support the claim that lumbar strain causes arthritic changes in the knees or need for partial/total knee arthroplasty. As pertinent to both knees, the examiner indicated that, although it is plausible that the Veteran’s lumbar DDD and radiculopathy aggravated her knees to a degree, the Veterans diagnosis of lumbar strain has little to no effect on her gait or lower extremity weakness. Thus, the examiner opined that the Veteran’s left knee arthritis is likely due to increasing age and her elevated BMI. The Board finds the examiner’s rationale is inadequate to decide the claim. Specific to the right knee disorder, she seems to have misunderstood the nature of the claim and offered an opinion as to whether such disorder is caused or aggravated by her left knee disorder rather than her low back strain. Furthermore, the examiner did not discuss the Veteran’s report that she overcompensated for her back pain by putting more pressure on her knees, which resulted in additional bilateral knee pain and other symptoms. Consequently, a remand is necessary to address such matters. 4. Entitlement to a TDIU. The Veteran’s claim for entitlement to a TDIU is inextricably intertwined with the claims remanded herein. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Consequently, adjudication of such matter must be deferred pending the outcome of the remanded claims. The matters are REMANDED for the following action: Forward the record, to include a copy of this remand, to an appropriate VA examiner for an addendum opinion addressing the etiology of the Veteran’s bilateral knee disorders. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s currently diagnosed bilateral knee disorders (status post bilateral total knee replacement with arthritis and right knee status post medial meniscus tear) are caused or aggravated by her service-connected low back strain (as opposed to any nonservice-connected back disorder, to include DJD and DDD). If aggravation is found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering such opinion, the examiner must consider the Veteran’s report that overcompensated for her back pain by putting more pressure on her knees, which resulted in additional bilateral knee pain and other symptoms. A rationale should be provided for any opinion offered. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.