Citation Nr: 21013608 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-00 392A DATE: March 10, 2021 ORDER Entitlement to service connection for residuals of a left knee meniscectomy (claimed as left knee disability) is granted. A rating in excess of 20 percent for back sprain/strain is denied. A disability rating of 20 percent effective January 20, 2012, for back sprain/strain is granted. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, pain and loss of range of motion from left knee meniscectomy is at least as likely as not related to active service. 2. During the appeal period the back sprain/strain was manifest by limitation of motion of the thoracolumbar spine of forward flexion to 35 degrees with a combined range of motion (ROM) limited to 95 degrees, when taking into consideration repeated use over time and during flareups. 3. The symptomology associated with the back strain/sprain has been at the same level during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a left knee meniscectomy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a rating in excess of 20 percent for back sprain/strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. 3. The criteria for a 20 percent rating for the entire appeal period for back sprain/strain are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1993 to June 1997. These issues matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. They were previously before the Board, most recently in June 2018, when remanded for further development. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In March 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript has been associated with the electronic file. 1. Entitlement to service connection for residual pain and loss of range of motion from left knee meniscectomy (claimed as left knee disability) is granted. The Veteran contends that he has a left knee disability which is related to active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board concludes that the Veteran has a current disability that is related to active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). September 2019 VA records show the Veteran has a current diagnosis of residual pain and loss of range of motion which are residuals of a left knee meniscectomy. At a March 2018 Board hearing, the Veteran credibly testified to in-service treatment of left knee pain that was limited to Motrin. Thus, the question becomes whether the current disability is related to service. There are no probative medical opinions against the claim. The evidence in favor of the claim includes a September 2019 VA medical opinion. The September 2019 VA examiner found that the Veteran’s residual pain and loss of ROM from left knee meniscectomy was at least as likely as not incurred or caused by in-service illness, event, or injury, to include the Veteran’s credible report of experiencing left knee pain, which continues to present day, due to the physical requirements of service including running. The September 2019 VA examiner explained that the Veteran had testified in March 2018 to injuring or twisting the left knee during active service in 1995 and continued to have symptoms after discharge without history of interval injury. May 2018 letters from the Veteran’s mother and spouse stated when he came back from service also noted that the Veteran had left knee problems that were not present when he entered service. The Veteran's mother and spouse are competent to provide this evidence as it is symptomology they have observed in the Veteran. The Veteran progressed to meniscectomy in 2010 and has had residual pain and loss of ROM of left knee since. Upon review of the record, the Board finds the evidence to be in relative equipoise with regard to whether the Veteran’s current residual pain and loss of range of motion from left knee meniscectomy is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for residual pain and loss of range of motion from left knee meniscectomy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to a disability rating in excess of 10 percent prior to September 13, 2019, for back sprain/strain. Increased Rating The Veteran contends entitlement to a higher rating for back sprain/strain. Alternatively, the Veteran contends that the August 2013 VA examination had not adequately considered flareups of back pain symptoms. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. VA adjudicators must consider whether to assign different ratings at different times, or "staged" ratings, during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The United States Court of Appeals for Veterans Claims (Court) since has extended this practice to established ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When evaluating joint disabilities rated based on limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, less or more movement than normal, weakened movement, excess fatigability, and pain on movement, swelling, deformity, and atrophy that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran’s back sprain/strain is rated under 38 C.F.R. § 4.71a, 5237. 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. 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. Id. at Note 2. 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. 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. First, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for back sprain/strain. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain during flareups and during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that 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. The Board further that the symptomology associated with the back sprain/strain warranted a 20 percent disability rating since the date of receipt of the Veteran’s original claim, January 20, 2012. In August 2013, the Veteran underwent a VA examination. The VA examiner diagnosed back sprain/strain (1994, 1996). The Veteran reported lower back pain which started as early as 1993 while in the Marine Corps, primarily due to carrying heavy equipment or backpacks with an average of 50-75 pounds worth of gear. In 1994, the Veteran sought treatment for mid back pain at Okinawa, diagnosed as mid spine muscular sprain. In 1996 at Camp Fuji, he was diagnosed with another mid back sprain. The Veteran reported current everyday flareups with continual discomfort mid back, worsened when sitting for long periods, such as driving or sitting at desk at work. The Veteran reported the need to adjust and shift positions constantly in order to alleviate pain. Range of motion testing showed 30 degrees of forward flexion, 15 degrees of extension, 20 degrees of right and left lateral flexion, and 30 degrees or greater of right and left rotation, due to pain. There was no additional loss of function or ROM after three repetitions. There was “5/5” muscle strength, “2+” reflexes, “normal” sensation, “negative” straight leg raising tests, and no radiculopathy or other neurological abnormalities. Diagnostic imaging showed degenerative disc disease at T10-11. This VA examination did not expressly account for the Veteran’s reported limitations of motion during flareups. In March 2018, the Veteran appeared before a Board hearing. The Veteran testified that the August 2013 VA examination did not accurately depicted the magnitude of his injury because it was not as debilitating on certain days. The Veteran testified to daily back pain and greater loss of range of motion of the back during flareups. The undersigned Veterans Law Judge found the Veteran’s testimony in this regard to be truthful and credible. In September 2019, the Veteran underwent another VA examination. The VA examiner diagnosed back sprain/strain (1995). The Veteran reported stiffness, pain with lifting, and difficulty bending over and sitting for long periods. The Veteran reported taking ibuprofen for pain. The Veteran reported increased stiffness during flareups. The Veteran reported lifting was limited to 30 pounds and bending over was difficult. Initial ROM testing showed 50 degrees of forward flexion, 20 degrees of extension, 15 degrees of right and left lateral flexion and rotation, due to pain. There was no additional loss of function or ROM after three repetitions. With repeated use over time and during flareups, the September 2019 VA examiner opined that there would be 35 degrees of forward flexion, 10 degrees of extension and right and left lateral flexion and 15 degrees of right and left lateral rotation, due to pain. There was no muscle spasm or guarding. Muscle strength was “5/5” and reflex was “2+.” Sensation was “normal.” Straight leg raising tests were “negative.” There was no ankylosis, radiculopathy, or other neurological abnormalities. There was no objective evidence of pain on weight-bearing. The September 2019 VA examiner found that passive ROM testing could not be performed or was not medically appropriate. This VA examination adequately accounted for the Veteran’s limitations of motion during flareups. The Board finds it is factually ascertainable that the back sprain/strain symptoms warranted a 20 percent disability rating since the date of the Veteran’s original claim, January 20, 2012. The Board finds the August 2013 VA examination does not adequately account for or outweigh the Veteran’s credible testimony regarding thoracolumbar limitations of motion during flareups. The September 2019 VA examination report, however, did expressly account for the Veteran’s reported flareups and quantified the limitations in terms of ROM. The Veteran has testified that his symptomology was as limiting in August 2013 as in September 2019. The Board, finding no contrary evidence on a review of the medical evidence of record as addressed above, agrees. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and 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. The absence of IVDS problems was specifically noted on both the August 2013 and September 2019 VA examination reports. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for back sprain/strain. 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 1. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. The Veteran’s bilateral hearing loss does not meet the schedular requirements for a higher rating under the relevant diagnostic codes. However, at the March 2018 Baord hearing, the Veteran reported symptoms and functional impairment that presents an unusual or exceptional disability picture or is not reasonably contemplated by the relevant diagnostic codes, and the credible testimony suggests the Veteran has experienced marked interference with employment due to service-connected disability. The Veteran’s claim for an increased rating is being remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran’s service-connected disabilities do not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). However, at the March 2018 Board hearing, the Veteran indicated an inability to work due to symptoms associated with service-connected disabilities. The Veteran’s claim for TDIU is being remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. The matters are REMANDED for the following action: 1. Acquire updated VA and private treatment records. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Refer the Veteran’s claim for an increased rating for bilateral hearing loss to VA’s Director of Compensation Service for extraschedular consideration. 3. Ask the Veteran to complete a TDIU claim form. 4. Refer the Veteran’s claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.