Citation Nr: 21025170 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-34 486 DATE: April 27, 2021 ORDER A rating in excess of 20 percent for intervertebral disc disease of the lumbar spine is denied. REMANDED Entitlement to service connection for left knee pain, to include as secondary to a service-connected lumbar spine disability, is remanded. FINDING OF FACT Throughout the entire appeal period, the Veteran’s lumbar spine did not limit forward flexion to 30 degrees, did not result in favorable ankylosis or the functional limitation equivalence of ankylosis, and did not cause incapacitating episodes of a total duration of at least 4 weeks during a 12-month period. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for intervertebral disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 2002 to April 2006. These matters were previously remanded by the Board in November 2018 for further evidentiary development. Substantial compliance with the remand requests having been accomplished regarding the lumbar spine claim, the Board may proceed to consider that claim. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Ratings Service connection for the Veteran’s lumbar spine disability was granted at 10 percent disabling under 38 C.F.R. § 4.71a, DC 5237, pertaining to lumbosacral strain, effective August 26, 2011. The rating was increased to 20 percent, effective March 6, 2012. The Veteran submitted a claim for increase on December 13, 2012. Thus, the Board will consider the severity of the lumbar spine disability from December 13, 2012, as well as whether there was a factually ascertainable increase in severity within the year preceding the increased rating claim. See 38 C.F.R. § 3.400(o)(2). 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. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula provides for assignment of a 10 percent rating when forward flexion of the thoracolumbar spine is 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 requires forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, DC 5242, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is 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 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note (2); see also 38 C.F.R. § 4.71a, Plate V. 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). Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under the appropriate diagnostic code. Note (1). Alternatively, disability involving disc disease may be rated under the Formula for Rating IVDS Based on Incapacitating Episodes. That formula provides a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. 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). Turning to the evidence of record, the Veteran underwent a VA examination in December 2011. He described his pain as a constant ache and noted that he always had to be moving or flexing. With medication, the pain was a 5 to 6 out of 10. He treated his pain with anti-inflammatories. Laying down watching television bothered him and he was limited to 10 to 15 minutes of sitting and standing. The Veteran described flare-ups as being difficult to bend or stand more than a few minutes. Range of motion testing revealed forward flexion to 70 degrees with pain at 60 degrees; extension to 25 degrees with pain at 20 degrees; and right and left lateral flexion and rotation to 30 degrees or greater with pain at 30 degrees or greater. The Veteran was able to perform repetitive use testing without additional loss of range of motion. Functional impairment included less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, or weight-bearing. The Veteran had tenderness in the lumbar paraspinal muscles bilaterally. There was no guarding or muscle spasm of the spine. Muscle strength testing was normal and there was no muscle atrophy. Reflexes were normal. A sensory examination yielded normal results. There was no radiculopathy and no other neurologic abnormalities. The Veteran had IVDS which did not result in any incapacitating episodes over the prior 12 months. His disability required no assistive devices. The Veteran stated that his back disability might interfere with his ability to obtain and maintain employment which entailed lifting or carrying objects greater than 20 pounds, frequent bending at the waist, construction/labor, running, or prolonged sitting, walking or standing. He however stated that it did not interfere with his ability to obtain and maintain desk/office employment particularly if ergonomic adjustments were made to his workplace. He was currently employed as a video editor at a television station and he had frequent opportunities to rise from seated positions. The examiner indicated that the Veteran’s back disability interfered with many activities of daily living like household chores. He also avoided many social, recreational, and physical activities due to his lumbar pain. In March 2012, the Veteran was prescribed a back brace by VA clinicians. In April 2012, he began physical therapy for the lumbar spine. He described his back hurting if he stood or sat too long. The back brace helped and laying down improved his pain. The treating clinician stated that functional impairment occurred with prolonged sitting and standing. Active range of motion was limited to 75 percent ability on all planes of motion and was relatively pain-free. An MRI demonstrated mild disc bulge at L5-S1 and a posterior annular tear. Another examination was conducted in April 2012. The Veteran described increased pain with sitting or standing for too long. He had to leave his job as a waiter due to his pain. Daily pain was 5 to 6 out of 10. His pain was a constant ache and he always had to be moving or flexing. His treatment included a back brace, physical therapy, chiropractic care, and medications. The Veteran stated that when flare-ups occurred, he had to lay down and relax, stretch, and let the pain pass. Range of motion included flexion to 60 degrees with pain at 30 degrees, extension to 20 degrees with pain at 10 degrees, and right and left lateral flexion and rotation to 25 degrees with pain at 15 degrees. The Veteran was able to perform repetitive-use testing with no loss of additional range of motion. Functional impairment included less movement than normal, pain on movement, and interference with sitting, standing, and weight-bearing. Tenderness was noted in the lumbar paraspinals, left worse than right. There was no guarding or muscle spasm of the spine. Muscle strength testing was normal and there was no muscle atrophy. Reflexes were normal other than in the left knee which were reduced. A sensory examination yielded normal results. The straight leg test was negative on the right and positive on the left. Mild radiculopathy was observed in the left lower extremity involving the sciatic nerve. No radiculopathy was present in the right lower extremity. There were no other neurologic abnormalities. The Veteran had IVDS but no incapacitating episodes over the past 12 months. He regularly used a back brace for lumbar support and comfort, especially at work, but no other assistive devices. Regarding functional impact, the examiner stated that the Veteran had to quit his job as a waiter because he could no longer perform duties because of his back pain. His back disability interfered with his ability to obtain and maintain employment which entailed lifting or carrying objects greater than 20 pounds, frequent bending at the waist, construction/labor, running, or prolonged sitting, walking, or standing. His condition did not interfere with his ability to obtain and maintain desk/office employment, particularly if ergonomic adjustments were made to his workspace. The examiner stated that the condition interfered with many activities of daily life, like household chores. The Veteran began regular chiropractic treatment with acupuncture in May 2012. At six chiropractic appointments, lumbar active flexion and extension were within normal limits. The Veteran noted that his pain worsened after working as a waiter and standing for more than 10 hours. At a November 2012 physical therapy evaluation, the Veteran described his lumbar spine pain as 4 to 5 out of 10, worsening to 7 to 8 out of 10 with activity. He noted that if he did something too fast or stood for a long time, his pain worsened. The clinician determined that the functional limitations of the disability included decreased standing tolerance, decreased ability for repetitive bending or lifting needed for independent activities of daily life and his job tasks, and decreased core strength and endurance. Active range of motion was 50 percent in flexion and 100 percent on all other planes of motion. Upon observation, the Veteran had flattened lumbar lordosis and an unremarkable gait. In April 2013, there was tenderness to palpation to the midline of the Veteran’s lumbar spine. Range of motion was decreased secondary to pain and spasms were noted right to the midline of the spine. The Veteran restarted chiropractic and acupuncture treatment in September 2013. Multiple appointments reflected active flexion and extension within normal limits. The Veteran noted that pain in his lower back occurred with sustained standing and sitting. He felt slightly better since using a lumbar support pillow while driving. The Veteran underwent another VA examination in November 2013. He denied flare-ups. Range of motion included forward flexion to 90 degrees, extension to 30 degrees or greater, and right and left lateral flexion and rotation to 30 degrees or greater. There was no evidence of pain on any plane of motion. The Veteran was able to perform repetitive use testing without any loss of range of motion. There was no other functional impairment or loss. There was no localized tenderness or pain on palpation, no muscle spasm, and no guarding of the spine. Muscle strength testing was normal and there was no muscle atrophy. Reflexes were normal and a sensory examination yielded normal results. Mild radiculopathy was observed in the left lower extremity involving the sciatic nerve. There was no radiculopathy in the right lower extremity and there were no other neurologic abnormalities. The Veteran had IVDS but had had no incapacitating episodes in the past 12 months. His disability required no assistive devices. The examiner determined that there was no functional impact from the disability. The Veteran denied additional limitation of motion during repeated motion and he had no weakness, incoordination, or fatigability. In a January 2014 statement, the Veteran noted that his back disability had not improved. He could not sit down for more than five minutes or stand for prolonged periods due to extreme pain. In July 2015, the Veteran reported that his back pain was a 9 out of 10 with minimal relief from pain medication. In March 2017, he demonstrated full lumbar range of motion without any increase in symptoms. He had a normal lumbar curve. An MRI conducted in November 2017 revealed mild interval progression of spondylosis at L5-S1 since the last imaging was conducted with concentric disc bulge causing moderate bilateral neural foraminal stenosis and partial bilateral lateral recess stenosis with touching of the bilateral L5 and S1 nerve roots, and no central canal stenosis cauda equina impingement. A February 2019 VA treatment record reflected no tenderness to palpation of the lower back and full range of motion. Another examination was conducted in August 2019. The Veteran reported diffuse lower lumbar discomfort. He denied flare-ups. Regarding functional impact, he stated that his back pain prevented him from playing soccer or basketball. Range of motion was normal with forward flexion to 90 degrees, and extension, right and left lateral flexion, and right and left lateral rotation to 30 degrees. Pain was not noted on examination and there was no pain with weight-bearing or nonweight-bearing. Passive range of motion testing was not performed as it was deemed unfeasible to do in a safe manner. There was no evidence of localized tenderness or pain on palpation in the spine. The Veteran was able to perform repetitive-use testing without additional loss of function or range of motion. The examiner determined that pain, weakness, fatigability, and incoordination would not result with repeated use over time. The examiner concluded that after the examination and a review of the Veteran’s reported history and subjective complaints and using medical knowledge and expertise, he had no basis to offer additional losses of function or motion with repeated use over time. There was no guarding or muscle spasm of the spine and no additional factors contributing to disability. Muscle strength testing was normal and there was no muscle atrophy. Reflexes were normal and a sensory examination yielded normal results. Mild radiculopathy was observed in the left lower extremity involving the sciatic nerve. There was no radiculopathy in the right lower extremity and no other neurologic abnormalities. There was no ankylosis of the spine. The Veteran had IVDS but no incapacitating episodes in the last 12 months. His disability did not require assistive devices. The Veteran’s back disability did not have a functional impact. The Board notes at the outset that the VA examinations of record, taken in conjunction with records of medical treatment, are an adequate basis upon which to determine the extent and severity of the Veteran’s lumbar spine disability. Although whether there was pain with passive movement and nonweight-bearing was not elicited on every examination, the Veteran has indicated that he experienced increased pain with prolonged standing, walking, and sitting, suggesting increased pain with active and weight-bearing activities. As such, active and weight-bearing motion as captured by all examinations is more likely to represent the most severe limitation of motion caused by the disability. The Veteran denied flare-ups at several examinations. However, at those he did endorse them (December 2011 and April 2012 examinations), he also described the actual functional losses associated with flare-ups (difficulty bending and standing for more than a few minutes, relieved by laying down and stretching). As such, the Veteran himself provided ample statements regarding the limitation of his activities from which to extrapolate the extent and severity of his disability. Although the examiners of record did not determine additional functional loss in terms of degrees of range of motion after repeated use over time, the Veteran’s own descriptions of his limitations are highly probative. He indicated that he could not perform work which required repeated bending and lifting and prolonged standing, walking, and sitting, suggesting that repeated use over time prevented such activity. Further, the August 2019 examiner determined the additional loss of function could not be estimated and he provided a medically-based reason for that inability. Given the totality of the information, including the Veteran’s own descriptions of his limitations, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed. DeLuca v. Brown, 8 Vet. App. At 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158. A rating in excess of 20 percent for intervertebral disc disease of the lumbar spine is denied. Based on the foregoing, the Board finds that a rating in excess of 20 percent for the Veteran’s lumbar spine disability is not warranted at any point during the appeal period. At no point was forward flexion limited to 30 degrees or less on clinical examination or as described by the Veteran. Further, there is no evidence of ankylosis or the functional limitation equivalence of ankylosis of the entire thoracolumbar spine. See Chavis v. McDonough, No. 18-2928 (U.S. Vet. App. April 16, 2021). Finally, the medical evidence of record does not demonstrate that the Veteran’s IVDS resulted in incapacitating episodes having a duration of at least 4 weeks in a 12-month period. As such, the criteria for a rating in excess of 20 percent have not been met. Accordingly, a rating in excess of 20 percent for the Veteran’s lumbar spine disability is not warranted. The Board finds that the Veteran’s disability is fully capable of evaluation under the rating schedule. The Board has considered whether additional ratings are warranted for the Veteran’s service-connected lumbar spine disability based on any associated objective neurologic abnormalities. See General Rating Formula for Disease and Injuries of the Spine, Note (1). However, the Veteran is already in receipt of a rating for associated left lower extremity radiculopathy. The evaluation of that disability is not currently before the Board, as it was not included in the Veteran’s December 2012 claim and was appealed and decided in a separate May 2019 appeal stream. Cf. Chavis v. McDonough, No. 18-2928 (U.S. Vet. App. April 16, 2021). There were no indications throughout the record of any associated right lower extremity radiculopathy. Further, the evidence as outlined above does not identify any other neurological abnormalities associated with the Veteran’s lumbar spine disability. Thus, the Board finds no basis to award any further separate ratings pursuant to Note (1). REASONS FOR REMAND Entitlement to service connection for left knee pain, to include as secondary to a service-connected lumbar spine disability, is remanded. The Veteran has contended that his left knee pain is the result of his service, including as secondary to his service-connected back disability. The Veteran’s February 2006 service separation examination and report of medical history reflected complaints of bilateral knee pain and swelling though a physical examination was normal. An x-ray conducted in July 2006 revealed no fractures, dislocations, subluxations, degenerative changes, or suprapatellar effusions and unremarkable soft tissues. Subsequent VA treatment records noted reports of recurrent pain, tightness, and pressure in his left knee and posterior thigh. Clinicians suspected gout, adductor tendinopathy and myofascial pain, and radiating pain from the lower back. The Veteran stated that his pain and tightness were worse after prolonged standing and working for many hours as a waiter. A VA examination conducted in November 2013 noted the Veteran’s report of constant pain in the left knee. The examination yielded normal results and the examiner determined that there was no current left knee diagnosis. The examiner found that the claimed condition was less likely than not proximately due to or the result of the service-connected back disability. In support, the examiner stated that there was no significant knee injury in service, no consistent evidence of a knee condition for over 5 years post-discharge, and no evidence of knee pathology upon examination. Another examination was conducted in August 2019. The Veteran reported intermittent left knee pain, none present on the day of examination. His last episode of pain had been prior in the week. The examiner stated that there was some consideration and speculation as to whether the left knee pain was in fact part of the lumbar radiculopathy. The physical examination was normal, and no diagnosis was provided. The examiner did not provide an etiology opinion. The Board finds that a new VA examination and opinion are needed before a decision may be rendered on the claim. The Veteran has outlined specific functional impairments caused by his left knee symptomology which were not considered by the examiners. See Saunders v. Wilkie, 886 F.3d at 1368; Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). Further, multiple potential etiologies have been suggested for his symptoms which have not been addressed. Finally, no opinion regarding aggravation was provided. As such, a new examination and opinion are needed which determine whether the Veteran’s reported left knee symptoms amount to a functional impairment of earning capacity and whether such impairment is proximately caused or aggravated by the service-connected back disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the etiology of his left knee pain. The claims folder should be provided to and reviewed by the examiner. (a.) List any current diagnoses of the left knee or any symptomology causing a functional impairment in earning capacity. Special attention is directed to the Veteran’s lay reports to examiners and treating clinicians. (b.) After a review of the examination findings and the entire evidence of record, the examiner is asked to render an opinion as to whether the Veteran’s left knee symptomology is at least as likely as not (probability of 50 percent or greater) the result of his active service, specifically to include the February 2006 separation notations; and (c.) The examiner is asked to render an opinion as to whether the Veteran’s left knee symptomology is at least as likely as not (probability of 50 percent or greater) proximately caused or aggravated (i.e., worsened beyond natural progression) by his service-connected lumbar spine disability. If aggravation is found, the examiner should quantify the degree of such aggravation, if possible. The examiner should address clinicians’ prior suspected etiologies including gout, adductor tendinopathy and myofascial pain, and radiating pain from the lower back. The examiner should also specifically determine whether the left knee symptomology is related to his service-connected left lower extremity radiculopathy. (Continued on the next page)   (d.) A full rationale for all opinions expressed should be provided. The examiner should focus specifically on whether the service-connected lumbar spine disability resulted in any current symptomology in the left knee resulting in functional impairment in earning capacity. Special attention is directed to the Veteran’s lay statements regarding the onset of symptoms and his current complaints. 2. After the above development and any additionally indicated development has been completed, readjudicate the issue on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.