Citation Nr: 21024779 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 14-35 044 DATE: April 26, 2021 ORDER Entitlement to a rating in excess of 20 percent prior to April 5, 2019 for a lumbar spine disability is denied. Entitlement to a rating in excess of 40 percent from April 5, 2019 for a lumbar spine disability is denied. REMANDED Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected lumbar spine disability, is remanded. Entitlement to service connection for a neurological disorder of the bilateral upper extremities, to include carpal tunnel syndrome, is remanded. FINDINGS OF FACT 1. For the period prior to April 5, 2019, the Veteran’s lumbar spine disability was manifest by forward flexion limited to no less than 60 degrees. 2. On and after April 5, 2019, the Veteran’s lumbar spine disability has been manifested by, at worst, the functional equivalent, during flare-ups, of favorable ankylosis of the thoracolumbar spine; no unfavorable ankylosis, or its functional equivalent, of the spine has been shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a lumbar spine disability for the period prior to April 5, 2019 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2019). 2. The criteria for a rating in excess of 40 percent for a lumbar spine disability for the period on and after April 5, 2019 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1974 to August 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In October 2017, the Veteran testified at a Travel Board hearing. The transcript of the hearing is of record. This matter was previously remanded by the Board in March 2018 and July 2020 for further development. Increased Rating Disability ratings are based on average impairment in earning capacity resulting from a particular disability and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two ratings apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. An exception to this rule occurs when the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, so 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to a rating in excess of 20 percent prior to April 5, 2019 for a lumbar spine disability 2. Entitlement to a rating in excess of 40 percent on and after April 5, 2019 for a lumbar spine disability The Veteran contends that he is entitled to higher ratings for his lumbar spine disability. The Veteran’s lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, 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, 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. 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. The Veteran was afforded a VA examination in March 2013 to assess the nature and severity of his lumbar spine disability. The Veteran’s diagnosis was noted to be chronic mechanical low back strain. The Veteran reported that he had not sought treatment for his lumbar spine disability since service. The Veteran reported flare ups with cold, bending, and lifting. He did not describe his flare-ups as causing him functional ankylosis or preventing him from any movement of the spine. Range of motion testing reflected forward flexion limited to 60 degrees with painful motion at 60 degrees; extension to 30 degrees with no painful motion; full bilateral lateral flexion without pain; and full bilateral lateral rotation without pain. The Veteran was noted to be able to perform repetitive use testing with 3 repetitions. The range of motion was changed only with left lateral flexion, restricted to 20 degrees. Following repetitive use testing, additional limitation of the spine as well as functional loss and impairment due to less movement than normal and pain on movement were noted. Tenderness was noted in the paralumbar muscles, as well as guarding and/or muscle spasm not resulting in abnormal gait or spinal contour. Muscle strength was normal, and reflex and sensory exams were normal. No radiculopathy or neurologic abnormalities were noted. The Veteran did not have a diagnosis of IVDS. No functional impact was noted. The Veteran again underwent VA examination on April 5, 2019. At that time, he was diagnosed with spinal stenosis and intervertebral disc syndrome, as well as bilateral lower extremity radiculopathy. He reported worsening constant low back pain with occasional severe flare-ups requiring emergent hospital treatment and causing a marked decrease in range of motion of his back secondary to pain. The examiner noted range of motion testing showed forward flexion to 15 degrees with pain on motion causing functional loss and pain on weight-bearing. No additional functional loss was noted on repetition, and the examiner estimated that the Veteran’s forward flexion would be limited to no worse than 15 degrees with pain during flare-ups as well. No ankylosis was noted. The examiner found the Veteran’s IVDS to require episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months. The Veteran again underwent VA examination in March 2020. At that time, he was diagnosed with spinal stenosis, IVDS, and degenerative arthritis of the spine with radiculopathy of the lower extremities. At that time, the examiner noted that the Veteran denied experiencing flare-ups or other functional loss and measured his forward flexion as to 60 degrees with pain on movement that caused functional impairment. He did not undergo repetitive-use testing due to severe pain in his back, and the examiner estimated that his range of motion of the thoracolumbar spine would be reduced to 0 degrees in each direction due to repetitive motion. No IVDS was observed, and the examiner specifically found the Veteran to have no ankylosis of the spine. Private treatment records have been reviewed, including from the Veteran’s orthopedic providers. An April 2013 private MRI reflects left lateral recess and foraminal narrowing at L5-S1, as well as central disc bulging at L2-3 and L3-4. A January 2014 letter from his orthopedist conveys that the Veteran had back surgery in July 2013. Surgical notes are of record, and reflect at the Veteran underwent microdiskectomies for two disk herniations at L3-4 and L5-S1. VA treatment records were also reviewed, and convey occasional reports of back pain. The Board notes that the Veteran conveyed in a September 2017 statement that since service, his back gives out, requiring him to lie flat in bed and rendering him unable to work. He also testified before the undersigned in October 2017, indicating that his 2013 surgery, per his surgeon, may not have been enough to resolve his symptoms. See hearing transcript. The Board finds, first, that a rating in excess of 20 percent is not warranted prior to April 5, 2019. Here on the March 2013 VA examination, the Veteran’s forward flexion was to 60 degrees. It was not shown that the Veteran had ankylosis or IVDS. At no time during the period in question did the Veteran display forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine or its functional equivalent, even when repetition and flare-ups are considered. Therefore, the Board finds that for the period in question, the Veteran’s disability more closely approximated the 20 percent rating than a higher one. Additionally, there was no evidence in the Veteran’s treatment records to support a rating in excess of 20 percent based upon limitation of motion or incapacitating episodes. Therefore, a rating in excess of 20 percent prior to April 5, 2019, is not warranted. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to restricted movement and pain during flare-ups and following repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the Board finds that 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 30 degrees or less, or favorable ankylosis of the thoracolumbar spine, for the period prior to April 5, 2019. Furthermore, the VA examination applicable during this appellate period reflects that forward flexion was limited to, at worst, 60 degrees. For the period on and after April 5, 2019, the Board does not find that a rating in excess of 40 percent is warranted. In that connection, even considering the Veteran’s subjective complaints of pain and other symptoms as described in DeLuca, the Board finds that unfavorable ankylosis of the thoracolumbar spine, or the functional equivalent thereof, or incapacitating episodes of IVDS having a total duration of at least 6 weeks in the past 12 months have not been shown. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland’s Illustrated Medical Dictionary, 28th edition, p. 86. While the medical evidence discussed above demonstrates that the Veteran has experienced significant limitation of motion in the lumbar spine, particularly during flare-ups, the VA examination reports and treatment records reflect that, at worst during his flare-ups, the Veteran has experienced an estimated total limitation of motion. However, the Board finds that this limitation of motion, which the March 2020 VA examiner estimated at 0 degrees of motion throughout, equates to favorable ankylosis of the thoracolumbar spine, pursuant to Note 5 of the General Rating Formula as set out in 38 C.F.R. § 4.71a and described at length above. The Board reaches this conclusion specifically because the evidence does not show that the Veteran has experienced the functional limitation of the entire thoracolumbar spine “fixed in flexion or extension”—in other words, in a position other than 0 degrees, as was specifically identified by the March 2020 examiner during the Veteran’s flare-ups—and because any functional impairment equivalent to fixation has not also resulted in difficulty walking due to limited line of vision, restricted opening of the mouth and chewing, limited breathing, gastrointestinal symptoms, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. The Veteran’s functional ankylosis during these flare-ups has been estimated as being in what the rating criteria identify as a “neutral position (zero degrees)”, which according to 38 C.F.R. § 4.71a “always represents favorable ankylosis.” Such warrants no more than the 40 percent rating currently assigned. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). 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. Regarding neurological impairment, the Veteran has already been granted service connection for bilateral lower extremity radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. The Board finds the Veteran’s statements regarding his symptomatology, namely of pain, to be credible. However, the objective medical testing of record simply does not warrant a rating in excess of 20 percent for his lumbar spine disability prior to April 5, 2019, or a rating in excess of 40 percent thereafter, under the applicable rating criteria. This is so even when the Veteran’s flare-ups are taken into consideration. Specifically, the Board notes that the May 2013 VA examiner found the Veteran’s flare-ups to cause additional limitation of motion and pain on motion, but such additional limitations were not noted to lead to the functional equivalent of ankylosis; rather, the Veteran reported only that flare-ups caused him some difficulty with lifting and bending, but he did not report that such flare-ups rendered him completely unable to move his spine during this period. Further, as discussed above, although the Board acknowledges that for the period on and after April 5, 2019, the Veteran’s flare-ups have caused complete limitation of motion to equate to ankylosis, there is simply no indication in the record that such functional ankylosis has been unfavorable in nature, as contemplated by the rating criteria, to warrant a higher rating. For the foregoing reasons, the Board concludes that a rating in excess of 20 percent for a lumbar spine disability for the period prior to April 5, 2019, and in excess of 40 percent thereafter, is not warranted. 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 service connection for a bilateral knee disability, to include as secondary to service-connected lumbar spine disability, is remanded. 2. Entitlement to service connection for a neurological disorder of the bilateral upper extremities, to include carpal tunnel syndrome, is remanded. The Veteran’s service connection claims for bilateral knee and upper extremity neurological disorder were previously remanded in a July 2020 Board decision. The Board specifically instructed that due to VA examinations of April 2019 – both of which were found inadequate – addendum VA opinions were to be obtained addressing the prior deficiencies. Review of the record reflects that instead of forwarding the Veteran’s claims file to appropriately qualified VA examiners, scheduling requests for new examinations were sent to the Veteran. The Veteran contacted the agency of original jurisdiction (AOJ) in September 2020, in response to said requests, to inquire why he was being contacted to schedule examinations, as he had already been examined previously. In response to the Veteran’s contact, the VA examinations were cancelled. There is no evidence that addendum VA opinions were sought or that the AOJ otherwise attempted to work with the Veteran to explain the need for in-person examinations. There has thus not been substantial compliance with the Board’s previous remand directives regarding the issues of entitlement to service connection for a bilateral knee disability and for a bialteral upper extremity neurological disability. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Forward the claims file to an appropriately qualified VA examiner for an addendum opinion to determine the nature and etiology of the Veteran’s claimed bilateral knee disability. If the examiner deems an in-person examination (or telehealth interview, as appropriate) necessary, then one should be scheduled and the need for such clearly communicated to the Veteran. After reviewing the claims file, the reviewer must provide a thoroughly reasoned opinion as to each of the following: (a) Whether it is at least as likely as not that the Veteran’s bilateral knee disability had its onset in service, within one year of service separation, or is otherwise related to service. In rendering this conclusion, the examiner must specifically discuss the Veteran’s report of inservice onset of symptoms and their continuity thereafter, as well as the documented knee complaints during service. (b) Whether it is at least as likely as not that the Veteran’s bilateral knee disability is proximately due to or caused by his service-connected lumbar spine disability. (c) Whether it is at least as likely as not that that the Veteran’s bilateral knee disability has been aggravated (permanently worsened beyond the natural progress of the disorder) by his service-connected lumbar spine disability. 2. Thereafter, forward the claims file to an appropriately qualified VA examiner for an addendum opinion to determine the nature and etiology of the Veteran’s claimed neurological disorder of the upper extremities, to include carpal tunnel syndrome. If the examiner deems an in-person examination (or telehealth interview, as appropriate) necessary, then one should be scheduled and the need for such clearly communicated to the Veteran. After reviewing the claims file, the reviewer must clarify whether the Veteran has a current diagnosis of an upper extremity neurological disorder, to include carpal tunnel syndrome. In providing this clarification, the examiner must be mindful of the finding of Saunders v. Wilkie, which found that pain alone can constitute a ratable disability if such pain causes functional impairment of earning capacity. For each such disability diagnosed, to include any functional impairment due to pain, the examiner must provide a thoroughly reasoned opinion as to whether it is at least as likely as not that such neurological disorder had its onset in service or is otherwise related to service. In rendering this conclusion, the examiner must specifically discuss the Veteran’s report of in-service onset of symptoms and their continuity thereafter. 3. A detailed rationale for all opinions must be provided. If the examiner is unable to offer any requested opinion, he or she must offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Comninos, Georgio 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.