Citation Nr: 21009325 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-37 989 DATE: February 22, 2021 ORDER Entitlement to a rating for a lumbar spine disability in excess of 10 percent prior to January 11, 2013; 20 percent prior to September 24, 2020; and, 40 percent thereafter, is denied. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to a rating in excess of 10 percent for a right knee disability prior to September 13, 2016, is remanded. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service connected disabilities is remanded. FINDING OF FACT 1. Prior to January 11, 2013, the Veteran’s lumbar spine disability was manifested by painful motion. 2. From January 11, 2013 to September 24, 2020, the Veteran’s lumbar spine disability was manifested by forward flexion greater than 30 degrees. 3. Beginning September 24, 2020, the Veteran’s lumbar spine disability is manifested by forward flexion 30 degrees or less, but has not resulted in ankylosis. CONCLUSION OF LAW 1. Prior to January 11, 2013, the criteria for a rating greater than 10 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a (Diagnostic Code 5242). 2. From January 11, 2013, to September 24, 2020, the criteria for a rating greater than 20 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a (Diagnostic Code 5242). 3. Beginning September 24, 2020, the criteria for a rating greater than 40 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a (Diagnostic Code 5242). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1987 to December 1988. This matter comes before the Board of Veterans’ Appeals (Board) from the October 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at an April 2019 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Entitlement to a rating for a lumbar spine disability in excess of 10 percent prior to January 11, 2013; 20 percent prior to September 24, 2020; and, 40 percent thereafter The Veteran contends that he is entitled to a higher rating for his lumbar spine disability throughout the period on appeal. The Veteran’s lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating 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 but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating 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 abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 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. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. 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.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Prior to January 11, 2013 The Veteran contends that he is entitled to a rating higher than 10 percent for his lumbar spine disability prior to January 11, 2013. In February 2011, the Veteran underwent a VA spine examination. The Veteran complained of low back pain that radiates down his legs. No urinary or fecal incontinence were noted. The examiner noted that the Veteran experienced constant, severe, daily pain and used a brace to walk. Guarding and spasms were noted as well as pain with motion. However, the Veteran’s gait was noted as normal. Initial range of motion testing revealed flexion limited to 70 degrees, extension limited to 10 degrees, left and right lateral flexion limited to 25 degrees, and left and right lateral rotation limited to 20 degrees. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for lumbar spine disability prior to January 11, 2013. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by these statements would not result in limitation of motion more nearly approximating 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. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, while the Veteran does have IVDS, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for lumber spine disability prior to January 11, 2013. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Prior to September 24, 2020 The Veteran contends that he is entitled to a rating greater than 20 percent for his lumbar spine disability from January 11, 2013 to September 24, 2020. In February 2013, the Veteran underwent a VA back examination. The Veteran reported daily low back pain and ambulated with a cane. The Veteran denied bowel or bladder symptoms. No flare-ups were reported. The Veteran’s initial range of motion was as follows: forward flexion limited to 60 degrees (with objective evidence of painful motion beginning at 60 degrees), extension limited to 10 degrees (with objective evidence of painful motion beginning at 10 degrees), right and left lateral flexion limited to 20 degrees (with objective evidence of painful motion beginning at 20 degrees), and right and left lateral rotation limited to 20 degrees (with objective evidence of painful motion beginning at 20 degrees). The Veteran was not able to perform repetitive use testing with three repetitions. The examiner noted that the Veteran has functional loss and/or functional impairment of the thoracolumbar spine due to less movement than normal and pain on movement. No localized tenderness or pain to palpation of the spine and/or soft tissues of the thoracolumbar spine was noted. Additionally, the Veteran did not have guarding or muscle spasm of the lumbar spine. Muscle strength testing, reflex examination, and sensory examination were all normal. The examiner noted that the Veteran does have intervertebral disc syndrome (IVDS) and had less than 1 week of incapacitating episodes requiring prescribed bed rest and treatment by a physician in the previous 12 months. The examiner concluded that the Veteran’s lumbar spine disability impacts his ability to work as physical labor is limited by pain. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for lumbar spine disability prior to September 24, 2020. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and weakened movement. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s statements would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for lumbar spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Beginning September 24, 2020 The Veteran contends that he is entitled to a rating greater than 40 percent for his lumbar spine disability beginning September 24, 2020. Pursuant to the Board’s September 2019 remand, the Veteran underwent a VA back examination in September 2020. The Veteran reported sharp pain and stiffness as well as difficulties lifting his arms above his head. The Veteran’s initial range of motion was forward flexion limited to 40 degrees and all other ranges of motion limited to 15 degrees. Pain was noted on every range of motion. Additionally, there is no objective evidence of localized tenderness or pain on palpation of the spine or associated soft tissue of the lumbar spine. The examiner said that pain and lack of endurance significantly limit functional ability with repeated use over a period of time. The examiner was able to describe this in terms of range of motion: forward flexion limited to 30 degrees, extension limited to 5 degrees, and right/left lateral flexion and right/left lateral rotation limited to 10 degrees. Additionally, pain and lack of endurance was also noted to significantly limit functional ability during a flare up. This was manifested in the following ranges of motion: forward flexion limited to 25 degrees and extension, right/left lateral flexion, and right/left lateral rotation limited to 5 degrees. No guarding or muscle spasm of the lumbar spine was noted. No ankylosis or neurologic abnormalities were found. The examiner noted that the Veteran has IVDS, however, the Veteran did not have any episodes that require bed rest prescribed by a physician in the past 12 months. The examiner concluded that the Veteran’s lumbar spine disability impacts his ability to work as he has limited walking and standing for prolonged periods of time due to pain. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for lumbar spine disability beginning September 24, 2020. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and weakened movement. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s statements would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for lumbar spine disability beginning September 24, 2020. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This matter was previously before the Board in September 2019 and was remanded for further development. 1. Entitlement to service connection for a right shoulder disability is remanded. The Veteran contends that his right shoulder disability is related to his military service. Pursuant to the Board’s September 2019 remand, the Veteran underwent a September 2020 VA shoulder examination. The examination report noted that the Veteran is diagnosed with right shoulder strain, status-post surgery. The examiner opined that the Veteran’s right shoulder is less likely than not related to his military service. The examiner explained that the Veteran’s records do not indicate right shoulder pains or strains during service, therefore, the examiner opined that the condition is less likely than not incurred in or caused by the Veteran’s service. The Board notes that a VA examiner must offer a full rationale for all opinions given and should not rely solely on the absence of evidence of in-service treatment in the Veteran’s service treatment records as a basis for any given opinion. Therefore, the Board finds the September 2020 VA shoulder opinion is inadequate and that a remand is warranted for an addendum opinion. 2. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. The Veteran contends that his right knee disability warrants a rating greater than 10 percent. As noted above, this matter was previously before the Board in September 2019 and was remanded for further development. Specifically, the Board directed the Agency of Original Jurisdiction to schedule the Veteran for a knee examination. In September 2020, the Veteran underwent a VA knee examination, however, the examination does not clarify whether the range of motion testing noted in the knee examination report remained the same upon active motion, passive motion, weight-bearing, and without weight-bearing testing (specifically on weight-bearing and without weight-bearing testing). Therefore, the Board finds that a remand is warranted for the Veteran to under another VA knee examination. 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service connected disabilities is remanded. As the resolution of the claim for service connection for a right shoulder disability and an increased rating for a right knee disability might be determinative of the Veteran’s TDIU claim, the issues are inextricably intertwined, and the TDIU issue must also be remanded. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s right shoulder condition. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right shoulder condition is related to an in-service injury, event, or disease. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. The examiner should not rely solely on the absence of evidence of in-service treatment or injury in the Veteran’s service treatment records as a basis for any given opinion. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 2. The September 2020 VA examiner is asked to clarify whether the ranges of motion noted in the examination report remained the same upon active motion, passive motion, weight-bearing, and without weight-bearing testing. If not, then the examiner is asked to provide the specific ranges of motion in each state. If the examiner is unable to answer this question, a new examination should be performed. If, and only if, an addendum opinion clarifying the ranges of motion testing cannot be obtained, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page)   4. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mountford, 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.