Citation Nr: 21026947 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-26 291 DATE: May 4, 2021 ORDER 1. Entitlement to a 40 percent disability rating for degenerative joint disease (DJD) and spondylolisthesis of the lumbar spine from May 29, 2019 is granted. 2. The request to reopen the claim of entitlement to service connection for a right knee injury (claimed as bilateral knee injury) is denied. REMANDED 3. Entitlement to service connection for residuals of a dog bite, left hand, is remanded. 4. Entitlement to service connection for an unspecified respiratory condition (claimed as breathing problems) is remanded. FINDINGS OF FACT 1. Prior to May 29, 2019, objective range of motion testing showed, at worst, forward flexion limited to 35 degrees; however, on May 29, 2019 objective range of motion testing showed, at worst, forward flexion limited to 20 degrees; unfavorable ankylosis of the entire thoracolumbar spine and incapacitating episodes due to intervertebral disc syndrome lasting six weeks or more has not been demonstrated at any point during the appeal. 2. Service connection for a right knee injury was denied in a September 2013 rating decision, in part, because the evidence did not show a current diagnosed disability. New and material evidence was not received within a year of notice of the decision. The Veteran did not initiate an appeal of this decision and it became final. 3. New and material evidence has not been received since the September 2013 denial. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 40 percent disability rating for DJD and spondylolisthesis of the lumbar spine from May 29, 2019 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242. 2. The criteria to reopen the claim of entitlement to service connection for a right knee injury (claimed as bilateral knee injury) are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from April 1998 to November 1999 and in the U. S. Army from January 2010 to July 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's November 2015 request for a decision review officer (DRO) hearing was withdrawn by the Veteran's attorney in December 2016, and the Veteran's June 2016 Board hearing request was withdrawn by the Veteran's attorney in January 2020. INCREASED RATINGS Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155. Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1. When rating the Veteran's service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that multiple distinct degrees of disability might be experienced which result in different compensation levels from the time the increased rating claim was filed until a final decision is made. Staged ratings apply to both initial and increased rating claims. See Hart v. Mansfield, 21 Vet. App. 505, 509- 10 (2007). The Board must also fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Where there is a question as to which of the two disability evaluations is applied, the higher evaluation 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. After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Lastly, 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."). Entitlement to a 40 percent disability rating for DJD and spondylolisthesis of the lumbar spine from May 29, 2019. The Veteran seeks a higher rating for his DJD and spondylolisthesis of the lumbar spine (lumbar spine disability). The appeal period before the Board begins on April 25, 2014, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran's service-connected lumbar spine disability is rated under 38 C.F.R. § 4.71a, DC 5242. The Board notes that while portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited 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. For the reasons that follow, the Board finds that a 40 percent rating, but no higher, is warranted from May 29, 2019. Turning to the evidence of record, at his October 2015 VA examination, the Veteran reported "bad" lower lumbar pain even with medication use. He felt localized pain from his lower lumbar spine to the sacrum, with occasional right sided radiating pain to the sciatic region down into his thighs. His symptoms of pain were aggravated by bending and reaching up and improved with tramadol or Flexeril. He reported missing work four to five days over the course of a month and that it took a significant amount of time in the mornings to get ready for class. He denied flare-ups. The examiner noted forward flexion was limited to 35 degrees. Ankylosis and intervertebral disc syndrome (IVDS) were not reported. In May 2019, the Veteran underwent a new VA examination. He reported severe pain in his mid to lower back area with radiating pain down his right leg, three-fourths of the way down the posterolateral thigh. He endorsed flare-ups and described them as intensified pain with activity, such as household chores, lifting feed for their animals at home, and when sitting or standing for long periods. The examiner noted the Veteran's occasional use of a cane. On range of motion testing, the Veteran's forward flexion was limited to 20 degrees. The examiner noted that the Veteran's pain on examination did not result in or cause functional loss. The examiner also noted that there was no additional loss of function of range of motion on repetitive use testing. Ankylosis and IVDS were not reported. The Veteran was afforded another VA examination in February 2020 and reported similar complaints of pain with his lumbar spine disability. He was diagnosed with radiculopathy of the bilateral lower extremities. The Veteran endorsed flare-ups and reported their occurrence three to four times a month. He described them as severe and crippling, noting that he "cannot stand" during a flare-up and "will be in a wheelchair." The Veteran reported that his flare-ups last days to weeks and are precipitated by bending over and trying to perform activities of daily living (ADLs). The Veteran described his functional impairment as an inability to leave the house; walk more than a few feet; and do any meaningful ADLs. He also reported that he cannot sit, stand, walk, twist, bend, and stoop for a prolonged time without extreme pain and difficulty. The examiner noted the Veteran's occasional used of a wheelchair for stability; regular use of a walker for movement; and constant use of a cane for support and balance. In the examiner's attempt to perform range of motion testing, the Veteran's back "locked up and he was in so much pain." There was "severe shaking and trembling of the whole body. [The Veteran] was locked in a stoop position and unable to do the rest ROM." The examiner reported he was unable to perform range of motion testing for the Veteran's lumbar spine disability and indicated that testing was not practical, medically feasible or advisable. The examiner also reported that the Veteran had to be assisted after about 10 minutes in a position, to sit at the edge of the bed. The examiner reported that the Veteran has IVDS of the lumbar spine but did not have any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past year. Ankylosis was not reported. Upon review of the evidence and resolving reasonable doubt in the Veteran's favor, the Board finds a 40 percent rating is warranted from May 29, 2019, the date of his VA examination which showed a worsening of symptoms. Prior to this examination, the Veteran's treatment records were generally consistent with his October 2015 VA examination report which reflects a 20 percent rating. Throughout the course of this appeal, VA and private treatment records have generally reflected his report of flares and ensuing pain as chronologically reported by the Veteran. The Veteran has reported functional loss due to low back pain, limited movements, difficulty bending forward or reaching above, and an inability to perform his ADLs. An even higher rating requires unfavorable ankylosis of the thoracolumbar spine or unfavorable ankylosis of the entire spine. Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Unfavorable ankylosis of the entire lumbar spine was not reported by any physician. Most of the VA examinations show the Veteran retained motion in his lumbar spine. Indeed, the Veteran was unable to perform a complete range of motion testing because he was in pain; however, the examiner did not report that this was due to ankylosis. Moreover, the examiner clearly marked that there was no ankylosis of the spine and the Veteran's private treatment records do not report ankylosis either. Functional ankylosis has not been asserted by the Veteran or described or noted by any VA examiner or private clinician. Furthermore, as the disability is assigned the highest rating available for limitation of motion without ankylosis, further consideration of DeLuca is not warranted. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Consideration has been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, a rating in excess of 40 percent is not warranted for any period of the appeal. The evidence of record is against 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. Looking at the February 2020 VA examination report where IVDS was reported, the examiner indicated that the Veteran was not prescribed bed rest by a physician. See 38 C.F.R. § 4.71a. In short, although the Veteran reports severe episodes of pain, an objective review of the medical evidence shows that the Veteran did not experience episodes that included bed rest and treatment prescribed by a physician with a total duration of at least 6 weeks during a 12-month period. Finally, the Board has considered whether separate ratings are warranted for neurologic impairment. The Veteran is already in receipt of service connection for radiculopathy of the bilateral lower extremities and has not appealed the evaluations assigned. The competent medical evidence does not show bowel or bladder impairment associated with the Veteran's lumbar spine disability. In sum, a rating of 40 percent, but no higher, is granted for the Veteran's lumbar spine disability from May 29, 2019. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REQUEST TO REOPEN The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. Whether new and material evidence was received to reopen the claim of entitlement to service connection for right knee injury (claimed as bilateral knee injury). Service connection for right knee injury was denied in a September 2013 rating decision in part because the evidence did not show a current diagnosed disability. New and material evidence was not received within a year of notice of the decision. 38 C.F.R. § 3.156(b). The Veteran did not initiate an appeal of this decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Since the last final decision, additional medical records were associated with the claims file, which include service treatment records (STRs) and two VA examinations. The Veteran's STRs were considered under 38 C.F.R. § 3.156(c); however, because they are duplicates of records already contained in the file, this exception for new and material evidence cannot be applied. The Veteran's October 2015 VA examination for knee and lower leg conditions does not report a diagnosis of his right knee. The Veteran reports pain on range of motion testing without functional loss. Ankylosis and joint instability are not reported. In the report, the examiner remarks that the Veteran had right knee pain with passive range of motion testing and 4/5 strength, "which the Veteran attributes to getting older." New private medical records from March 2018 and VA treatment records from January 2019 show the Veteran continues to be treated for knee pain. However, further review demonstrates that many complaints pertain to his service-connected left knee disability. A diagnosis of the Veteran's right knee injury was not established. At his February 2020 VA examination for knee and lower leg conditions, the Veteran does not report right knee pain. The examination report indicates that the Veteran's right knee is normal and contains no diagnosis. The Board notes a February 2020 VA treatment note contains a subjective report from the Veteran indicating that he had "2 torn meniscus" in his left and right knee; however, this is an inaccurate report as his medical providers have not indicated such. Additionally, no VA examiner has reported a meniscal condition in the Veteran's right knee. Indeed, medical treatment records and VA examination reports are new; however, they are not material to the claim because the Veteran's complaints of knee pain (which mostly pertain to his service-connected left knee disability) are cumulative and redundant of evidence that already existed at the time of the September 2013 denial. Additionally, as of his most recent VA examination, the Veteran denies right knee pain. Thus, while new, these medical records do not relate to an unestablished fact and are not material to the claim. A diagnosis of the Veteran's right knee injury was not stablished at the time of the September 2013 rating decision and there is still no diagnosis. There is no additional relevant evidence submitted by the Veteran since the September 2013 denial. Accordingly, the Board concludes that new and material evidence has not been received. 38 C.F.R. § 3.156. As such, the request to reopen the claim of service connection for right knee injury is denied. REASONS FOR REMAND 1. Entitlement to service connection for residuals of dog bite, left hand is remanded. This issue is remanded for a duty to assist error. At his March 2013 general VA examination, the examiner indicated that the Veteran had a normal left hand and provided no diagnosis. At the examination, the Veteran reported that since his hand injury, "every once in a while" he has discomfort in the left hand and weakness intermittently in the index and thumb. He also reported that his hand occasionally locks up on him. The Veteran's VA treatment records from January 2020 indicate that he was seen by a private physician for a neurological evaluation in October 2019 and received treatment at Cedar City Clinic. Although VA treatment notes indicate that those office notes were received; forwarded to a VA physician for review; then sent to scanning, they are not contained in the claims file. The January 2020 treatment note specifically references an October 2019 neurological evaluation, which includes a finding regarding "mild tremor of hands" however, it is not in the claims file. As such, on remand, these private treatment records should be obtained and reviewed by the RO for new and material evidence. 2. Entitlement to service connection for an unspecified respiratory condition (claimed as breathing problems) is remanded. The Veteran seeks service connection for breathing problems characterized as an unspecified respiratory condition. Service treatment records contain complaints of sleeping problems, which include difficulty falling asleep and daytime sleepiness. Service treatment records also contain complaints of breathing problems. Although the Veteran was not diagnosed with sleep apnea during service, he has consistently complained of sleep problems and breathing problems since service. Both the March 2013 and October 2015 VA examination reports determined there was no diagnosis for the Veteran's respiratory disorder. However, the October 2015 examiner signaled an abnormality with regards to the Veteran's sole PFT results of record, administered that month. In September 2019 a VA sleep study reported the Veteran's diagnosis of mild obstructive sleep apnea (OSA) with overall apnea hypopnea index (AHI) 5.6 apneas and hypopneas per hour. The sleep study report also indicated, "this mild AHI does not make sense in fellation to the severe daytime sleepiness of which he [the Veteran] complains." As the Veteran is now diagnosed with OSA, continues to complain of a respiratory disorder, and service treatment records demonstrate similar complaints, a VA examination is needed to assess the likelihood of a relationship between his current OSA diagnosis and respiratory disorder and service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, a VA medical opinion is needed to address whether the Veteran has a respiratory disorder related to his military service in the Southwest Asia theater of operations particularly because he asserts his breathing problems onset during his tour in Afghanistan. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. A. Sanderson and Cedar City Clinic Neurology. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Upon fulfillment of the above requested development, the RO should determine whether new and material evidence is present for the Veteran's residuals of a dog bite, left hand claim. 3. Schedule the Veteran for a VA examination for his obstructive sleep apnea. The examiner must review the claims file and a copy of this Remand. The examiner is asked to provide a response to the following: Is sleep apnea at least as likely as not related to service, to include in-service complaints of breathing problems? The examiner is asked to consider the Veteran's description of his in-service complaints of symptoms as well as his post-service symptoms. A rationale must be provided for all opinions expressed. 4. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his respiratory disorder. The examiner must review the entire claims file, including a copy of this Remand. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: A) Identify the Veteran's objective indications of a disability. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. E) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. F) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed condition was incurred in, or is otherwise related to, his active service? A rationale must be provided for all opinions expressed. D. C. JOHNSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Telamour, 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.