Citation Nr: 21024735 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 13-00 739 DATE: April 26, 2021 ORDER Entitlement to a rating in excess of 20 percent for lumbar spine degenerative disc disease is denied. REMANDED Entitlement to a rating in excess of 10 percent prior to November 6, 2018, and 30 percent beginning January 1, 2020, for right knee degenerative joint disease status post anterior cruciate ligament reconstruction surgery is remanded. FINDING OF FACT The Veteran’s lumbar spine degenerative disc disease condition is manifested by forward flexion limited to 70 degrees. CONCLUSION OF LAW The criteria for a rating greater than 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.71a (Diagnostic Code 5243). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1985 to March 2010. This matter comes before the Board of Veterans’ Appeals (Board) from the February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to a rating in excess of 20 percent for lumbar spine degenerative disc disease The Veteran contends that he is entitled to a higher rating for his lumbar spine disability. The Veteran’s lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. As of February 7, 2021, the only amendment to diagnostic code 5242 is the notation that it should be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, 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. Id. at Note 1. [Include any other relevant Note(s) to DC 5243. 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. 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. In September 2010, the Veteran underwent a VA examination. The Veteran’s initial range of motion was as follows: forward flexion limited to 50 degrees, extension limited to 30 degrees, left and right lateral flexion limited to 35 degrees, and left and right lateral rotation limited to 30 degrees. No muscle spasms or ankylosis was noted. The examiner also stated that the Veteran does not have IVDS. In January 2014, the Veteran underwent another VA spine examination. The examiner noted the Veteran is diagnosed with degenerative joint disorder and sacroiliitis. The Veteran reported that he only has back pain when he is sleeping as well as stiffness if he sits more than one hour. The Veteran stated that he has flare ups with no loss of range of motion. The Veteran’s initial range of motion was as follows: forward flexion limited to 75 degrees (objective evidence of painful motion beginning at 70 degrees); left lateral rotation limited to 25 degrees; and, no limitation on extension, right/left lateral flexion, or right lateral rotation. The January 2014 examiner stated that the Veteran was able to perform repetitive use testing with three repetitions with no limitation in range of motion. However, the Veteran was noted to have functional loss/impairment of his spine manifested by less movement than normal and pain on movement. Additionally, the Veteran was noted to have localized tenderness or pain to palpation of the spine. No muscle spasms or guarding resulting in abnormal gait or abnormal spine contour were found. No ankylosis or any other neurological abnormalities were present. The examiner stated that the Veteran does not have IVDS. The examiner stated that it is less likely as not that there would be any additional limitation in function or range of motion due to pain, weakness, fatigability, or incoordination during flare-ups, or when the Veteran’s lumbar spine disability is used repeatedly over a period of time. The examiner concluded that the Veteran’s lumbar spine condition impacts his ability to work as he cannot lift heavy amounts from the floor and cannot engage in prolonged standing. In June 2019, the Veteran underwent another VA spine examination. The examiner stated that the Veteran is diagnosed with degenerative arthritis of the spine and a sacroiliac injury. The Veteran stated that he currently has back pain that worsens when he sleeps as well as after inactivity. The Veteran did not report flare ups of his spine. The Veteran did note that he has functional loss/impairment of his spine as he cannot sit longer than 30 minutes due to pain and stiffness. He also reported that his back pain wakes him up at night and he needs to adjust frequently enough that he no longer sleeps in the same bed as his wife. The Veteran’s initial range of motion was forward flexion limited to 90 degrees, extension limited to 30 degrees, right and left lateral flexion limited to 30 degrees, and right and left lateral rotation limited to 30 degrees. No pain was noted on examination and there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the lumbar spine was noted. The Veteran was able to perform repetitive-use testing. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare ups or after repeated use. No guarding or muscle spasms were noted. No ankylosis or neurologic abnormalities were noted. The examiner also stated that the Veteran does not have IVDS of the spine. The examiner concluded that the Veteran’s lumbar spine condition impacts his ability to work. The examiner stated that the Veteran can sit for 30 minutes before pain and stiffness increases significantly and the Veteran must use rails, chair arms, and other objects to assist with standing up and sitting down. The examiner noted that the Veteran had 0-1 week work time lost in the last 12 months due to his back disability. Additionally, the Veteran reports pain with lifting weight, but is unsure of the amount before increased pain is caused. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for a lumbar spine disability based on incapacitating episodes. 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. Specifically, the Veteran’s VA examinations all note that the Veteran has not been diagnosed with IVDS. The preponderance of the evidence is also against a rating in excess of 20 percent for lumbar spine disability under the General Rating Criteria. 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 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. Of note, the Veteran’s recent examinations note that the Veteran’s forward flexion is limited to 90 degrees in June 2019 with no muscle spasms or guarding severe enough to result in abnormal gait or abnormal spine contour. However, the Board will not disturb the Veteran’s current rating. Based on the foregoing, the preponderance of the evidence is against of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for a 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. Finally, the Court has held that a claim for a total rating based on unemployability due to service connected disabilities (TDIU), either expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has not asserted that he is totally unemployable as the result of his service connected disability. Accordingly, the Board concludes that a claim for TDIU has not been raised. 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. Entitlement to a rating in excess of 10 percent prior to November 6, 2018 and 30 percent beginning January 1, 2020 for right knee degenerative joint disease status post anterior cruciate ligament reconstruction surgery The Veteran contends that he is entitled to a higher rating for his right knee condition both prior to and after his right knee replacement surgery. The Veteran’s right knee condition is evaluated under diagnostic code 5055. 38 C.F.R. § 4.71a. The Veteran had a total right knee replacement in November 2018. Prior to the Veteran’s knee replacement, his right knee condition was evaluated as 10 percent disabling beginning April 1, 2010. Following his replacement, the Veteran was in receipt of 100 percent temporary rating for his right knee due to convalescence from November 6, 2018 until December 31, 2019. Thereafter, beginning January 1, 2020, the Veteran’s right knee is evaluated as 30 percent disabling. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, Diagnostic Code 5055 (knee replacement, prosthesis) states that a 30 percent rating is warranted as a minimum rating for a knee replacement; a 60 percent rating is warranted for knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity; and, a 100 percent rating is warranted for one year following the implantation of prosthesis. The Diagnostic Code states that intermediate degrees of residual weakness, pain of limitation of motion should be rated by analogy to diagnostic codes 5256, 5261, or 5262. As of February 7, 2021, under the amended criteria, Diagnostic Code 5055 (knee, resurfacing or replacement, prosthesis) states that the minimum evaluation for a total replacement only is 30 percent; a 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity; and a 100 percent rating is warranted for four months following implantation of prosthesis or resurfacing. A note to the Diagnostic Code states that at the concluded of the 100 percent evaluation period, evaluate resurfacing under diagnostic codes 5256 through 5262; there is no minimum evaluation for resurfacing. As noted above, the Veteran’s right knee condition was evaluated as 100 percent disabling prior to January 1, 2020 and 30 percent thereafter. However, the Veteran’s most recent VA examination was in May 2019 and the most recent VA treatment records are from January 2016. Therefore, the Board must remand this matter to obtain any outstanding treatment records and to schedule the Veteran for another VA examination to determine the current severity of his right knee condition, specifically following his right knee convalescence period beginning January 1, 2020. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2016 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee condition. 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). 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). 3. 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.