Citation Nr: 21014467 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 14-38 802 DATE: March 12, 2021 ORDER Entitlement to a rating in excess of 40 percent for a lumbar spine disability is denied. REMANDED Entitlement to higher ratings for residuals of a right knee injury, currently assigned a 10 percent rating for post-traumatic arthritis and a separate initial 10 percent rating for instability, is remanded. FINDING OF FACT The Veteran’s lumbar spine disability has not resulted in unfavorable ankylosis of the entire thoracolumbar spine at any time during the period on appeal. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1971 to April 1979. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of history, in a December 2016 decision, the Board denied ratings in excess of 30 percent for a lumbar spine disability prior to March 31, 2016 and in excess of 40 percent thereafter; in excess of 10 percent for post-traumatic right knee arthritis; and in excess of 10 percent for right knee instability. The Veteran appealed this decision to the United States Court of Appeals of Veterans Claims (Court). In an October 2017 Order, the Court granted a joint motion for remand (JMR), vacating the Board’s December 2016 decision and remanding the case for further action consistent with instructions outlined by the parties in the JMR. Subsequently, the Board remanded this case in November 2017, January 2019, and October 2020 for additional development. In a January 2021 rating decision, the RO awarded the Veteran a 40 percent rating for his lumbar spine disability effective June 22, 2011. As this award constitutes a partial grant of the benefit sought, the claim remains on appeal and has been recharacterized accordingly. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum rating allowed by law). Duties to Notify and Assist With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA’s duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in increased rating claims, when the factual findings show distinct time periods during which the Veteran exhibited symptoms of disability and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file, and has an obligation to provide an adequate statement of reasons and bases supporting its decision. See 38 U.S.C. § 7104; Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence, and it should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Id.; see also Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake, 14 Vet. App at 122. Hence, the Board will summarize the relevant evidence as appropriate, with the below analysis focusing on the most salient and relevant evidence and on what this evidence shows, or fails to show, with respect to the Veteran’s claim. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to a rating in excess of 40 percent for a lumbar spine disability The Veteran is in receipt of a 40 percent rating for his service-connected lumbar spine disability from June 22, 2011, which is the date of his claim for an increased rating. The Veteran generally contends that he is entitled to an increased rating because his lumbar spine disability and its associated symptoms are more severe than contemplated by the currently-assigned rating. Disabilities of the spine are rated under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (encompassing Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). The General Rating Formula stipulates, in pertinent part, that a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted where there is unfavorable ankylosis of the entire spine. These criteria are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. 38 C.F.R. § 4.71a. For VA compensation purposes, unfavorable ankylosis is a condition in which 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. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Because the medical evidence of record shows that the Veteran has a diagnosis of intervertebral disc syndrome (IVDS), the Veteran may alternatively be rated under the Formula for Rating IVDS Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides, in pertinent part, that a maximum 60 percent rating is assigned with incapacitating episodes having a total duration of at least six weeks during the past 12 months. See id. An incapacitating episode is a 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, Diagnostic Code 5243, Note (1). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, deformity, or atrophy of disuse. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during periods of flare-up. See DeLuca, 8 Vet. App. at 206; see also Johnson v. Brown, 9 Vet. App. 7 (1996). In determining if a higher rating is warranted on this basis, it is important to note that pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under the diagnostic codes pertaining to limitation of motion. Id. However, pain may result in functional loss if it limits the ability to perform normal movements of the body with normal excursion, strength, speed, coordination, or endurance, as provided in 38 C.F.R. § 4.40. Id. at 38. Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor, for example, deformity, adhesion, atrophy, tendon tie-up, see 38 C.F.R. §§ 4.40, 4.45, that actually limited motion. Id. at 37. After a careful review of the objective medical evidence of record, the Board finds that a rating in excess of 40 percent for the Veteran’s lumbar spine disability is not warranted at any time during the period on appeal. As noted above, to qualify for entitlement to the next higher rating of 50 percent, the Veteran must demonstrate unfavorable ankylosis of the entire thoracolumbar spine. During the period on appeal, the Veteran has been afforded five VA examinations of his lumbar spine: in July 2011, January 2014, March 2016, December 2017, and May 2019. Significantly, the Veteran was not found to have ankylosis of the spine at any of these VA examinations. Moreover, range of motion testing performed on the Veteran’s thoracolumbar spine during the relevant period does not indicate that, at any time, the Veteran’s lumbar spine condition more closely approximated disability indicative of ankylosis of the spine. In this regard, on regular range of motion testing, the Veteran was found to have forward flexion limited to, at most, 50 degrees (See May 2019 VA examination report), and extension limited to, at most, 10 degrees (See July 2011 VA examination report). With regard to additional range of motion loss following repetitive use over time or periods of flare-up, the VA examiner who performed the May 2019 VA examination estimated that during these periods the Veteran’s forward flexion would be limited to 40 degrees, or, rarely, during the most severe type of flare-up, 30 degrees, and extension would be limited to 5 degrees. See October 2020 VA medical opinion. Thus, even when considering the Veteran’s disability picture when his lumbar spine disability is at its most severe, he would still be able to achieve some degree of forward flexion and extension of the spine. Notably, the Veteran has never alleged that during the most severe flare-ups of lumbar spine pain, he is rendered completely unable to move his spine. As such, the Board finds that there is no evidence of ankylosis, or fixation of a spinal segment in a neutral position (zero degrees), at any time. In light of the above, the Board does not find that the Veteran’s lumbar spine disability manifests by unfavorable ankylosis of the entire thoracolumbar spine. In making this finding, the Board notes that unfavorable ankylosis, as defined 38 C.F.R. § 4.71a, requires ankylosis of the thoracolumbar spine that results in at least one 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. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Because there is no evidence to support a finding that the Veteran has ankylosis of the spine, there is no need to further consider any of the above complications. With respect to the possibility of assigning a higher rating under 38 C.F.R. § 4.40 and § 4.45, the Board notes that the criteria for a 50 percent rating under the General Rating Formula are not predicated on limitation of range of motion. Therefore, the Board need not consider whether the Veteran is entitled to a higher rating due to additional functional loss under §§ 4.40 and 4.45. See Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnson v. Brown, 9 Vet. App. 7, 11 (1996). In making this finding, the Board acknowledges that in the October 2017 JMR, the parties agreed that the Board had erred in its December 2016 decision by relying on the March 2016 VA examination because the examiner did not attempt to estimate the additional functional loss or limitation of range of motion the Veteran experiences in his lumbar spine. However, since then, the Veteran’s disability rating has been increased to 40 percent for the duration of the period on appeal. Therefore, the Board finds that the Veteran is not prejudiced by the inadequate March 2016 VA examination, as entitlement to the next higher 50 percent rating is not predicated on limitation of range of motion. Moreover, as explained above, there is no evidence, even during periods of flare-up or after repetitive use over time, that the Veteran’s lumbar spine disability would more clearly approximate disability analogous to fixation of the spine in a neutral position. As such, the assigment of a higher schedular rating under the DeLuca criteria is not for application here. The Board has also considered whether the Veteran is eligible for a higher rating under Diagnostic Code 5243 for IVDS. In this regard, the Board notes that the Veteran was diagnosed with IVDS at the December 2017 VA examination. At that time, the VA examiner noted that the Veteran has not had any episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician in the past 12 months. Moreover, review of the medical evidence of record does not show that the Veteran has suffered incapacitating episodes requiring physician-prescribed bed rest at any time during the period on appeal. A 60 percent rating under Diagnostic Code 5243 requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. Such has not been shown by the medical evidence of record nor alleged by the Veteran; therefore, a higher rating under Diagnostic Code 5243 for IVDS is not warranted. The Board acknowledges that the Veteran sincerely believes that his disability is more severe than the currently-assigned rating reflects. In statements to his VA examiners, the Veteran has reported that he suffers from constant pain in the lumbar spine that increases in severity with activities such as heavy lifting and prolonged walking, standing, or sitting. The Veteran is competent to testify to the presence of observable symptoms, such as experiencing an increased level of pain. See Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to report that his lumbar spine disability is of sufficient severity to warrant a higher rating under the rating schedule, as such an opinion requires specialized medical expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board sympathizes with the Veteran that his lumbar spine disability significantly impacts his quality of life. However, it must rely on the medical evidence of record to assign the appropriate disability rating, and therefore, accords the objective medical findings greater weight than subjective complaints of increased symptomatology. Accordingly, the Board finds that a rating in excess of 40 percent for the lumbar spine disability is not warranted at any time during the period on appeal. As the evidence of record preponderates against the claim, the benefit-of-the-doubt doctrine is not for application and the Veteran’s claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND Unfortunately, the issue remaining on appeal must be remanded once again for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this claim so that the Veteran is afforded every possible consideration. Entitlement to higher ratings for residuals of a right knee injury, currently assigned a 10 percent rating for post-traumatic arthritis and a separate initial 10 percent rating for instability, is remanded. In the October 2017 JMR, the parties agreed that the Board erred when it failed to obtain an adequate medical opinion as to the additional functional loss or limitation of motion the Veteran experiences in his right knee during periods of flare-up or after repetitive use over time, as required by the Court’s holdings in DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Specifically, the Board relied on inadequate examination reports from July 2011, January 2014, June 2014, and March 2016 to deny the Veteran entitlement to an increased rating for his right knee disability in its December 2016 decision. The parties agreed that, on remand, the Board must obtain a retrospective medical opinion that adequately assesses the additional functional loss or limitation of motion the Veteran experiences during flare-ups of pain or on repetitive use both prior to and after the March 2016 examination. Subsequently, the Board has remanded this claim three times to attempt to obtain a retrospective medical opinion that complies with the directives outlined in the JMR. In May 2019, a VA examination was obtained in which the VA examiner addressed the current degree of functional loss as requested by the Board. Following the Board’s most recent remand, in October 2020, the same VA examiner provided a comprehensive medical opinion only addressing the medical evidence since the May 2019 VA examination, despite a specific request from the Board to provide a retrospective medical opinion based on a review of the July 2011, January 2014, June 2014, and March 2016 VA examination reports. As such, the Board finds that the record still does not contain an adequate opinion addressing to what extent the Veteran experienced additional functional loss in his right knee pursuant to DeLuca and Mitchell both prior to and after the March 2016 VA examination, as stipulated by the parties in the JMR. In light of the above, the Board finds that the Veteran’s claim must be remanded once again because the RO did not comply with the Board’s prior remand directive to obtain an adequate medical opinion on the Veteran’s behalf. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). On remand, a retrospective medical opinion must be obtained that adequately assesses the severity of the Veteran’s right knee disability from June 22, 2011 (the date of claim) to May 20, 2019 (the date of the most recent examination). See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retrospective medical evaluation may be warranted). Moreover, the Board notes that, effective February 7, 2021, certain portions of 38 C.F.R. § 4.71a, which provides the ratings schedule for disabilities of the musculoskeletal system, were revised. Specific to the Veteran’s case, the rating criteria for Diagnostic Code 5257, which contemplates recurrent subluxation or lateral instability of the knee, were changed. In this regard, the Veteran is currently in receipt of a 10 percent rating for instability of the right knee under this diagnostic code. However, the medical evidence of record indicates that he has a tear of the anterior cruciate ligament (ACL) in his right knee, which may entitle him to an increased rating under the revised criteria for Diagnostic Code 5257 if the ACL tear is the cause of his current right knee instability. As such, on remand, the VA examiner is also asked to provide an opinion clarifying the current extent of the Veteran’s right knee ACL tear, as explained in the remand directives below. If the VA examiner determines that physical examination of the Veteran’s right knee is required in order to provide the requested opinion, then the Veteran should be scheduled for a VA knee examination. Accordingly, the matter is REMANDED for the following action: Return the Veteran’s claims file to the VA examiner who conducted the May 2019 VA examination to provide a retrospective medical opinion with regard to the Veteran’s right knee disability. The examiner must review of the Veteran’s entire claims file, to include a copy of this REMAND. Thereafter, the examiner is asked to: (a) Provide a retrospective medical opinion, as best as can be ascertained from the Veteran’s self-report, as well as from clinical records and other evidence of record, estimating any additional degrees of limitation of range of motion caused by functional loss during a period of flare-up or after repeated use of the right knee disability from June 22, 2011 to May 20, 2019. In doing so, the examiner must review the prior VA examination reports (from July 2011, January 2014, June 2015, March 2016, and December 2017), and based on the information therein, provide the requested findings for each examination undertaken during the pendency of the appeal. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repeated use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (b) Then, it would be of considerable assistance to the Board if the examiner can provide the following information about the Veteran’s ACL tear of the right knee: (i) Is the ACL tear a complete or incomplete ligament tear? (ii) Is the ACL tear repaired, unrepaired, or a failed repair? (iii) Does the ACL tear cause persistent instability of the right knee? (iv) Does the ACL tear require a prescription from a medical provider for an assistive device (e.g., cane, crutches, walker) or bracing for ambulation? If the following information cannot be provided without physical examination of the Veteran’s right knee, then the Veteran should be scheduled for an in-person VA examination. The examiner must provide a complete medical rationale for all opinions expressed. The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran’s claim. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.