Citation Nr: 21027144 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-34 445 DATE: May 4, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent prior to October 26, 2019, for degenerative arthritis of the cervical spine is denied. Entitlement to an evaluation in excess of 20 percent beginning October 26, 2019, for degenerative arthritis of the cervical spine is denied. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the right knee is denied. Entitlement to an initial compensable evaluation for hammertoe affecting toes number 2, 3, 4, and 5 is denied. Entitlement to an initial evaluation in excess of 10 percent for a bunion of the left foot is denied. REMANDED Entitlement to an initial evaluation in excess of 10 percent prior to October 26, 2019, and in excess of 20 percent thereafter for degenerative arthritis of the lumbar spine is remanded. FINDINGS OF FACT 1. Prior to October 26, 2019, the degenerative arthritis of the Veteran's cervical spine manifested in pain, limitation of forward flexion to 40 degrees, and a combined range of motion 210 degrees. 2. Beginning October 26, 2019, the degenerative arthritis of the Veteran's cervical spine manifested in increased pain, limitation of forward flexion during flare-ups and after repetitive use to 30 degrees, and increased limitation of right and left lateral rotation. 3. Throughout the period on appeal, the degenerative joint disease of the Veteran's right knee manifested in pain and stiffness that worsened with exertion, but limited the right knee flexion to, at most, 100 degrees. 4. Throughout the period on appeal, the hammertoe affecting toes number 2, 3, 4, and 5 of the left foot manifested in pain under the toes, but did not affect the great toe of the left foot. 5. Throughout the period on appeal, the severe bunion of the Veteran's left foot manifested in pain in the left foot. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent prior to October 26, 2019, for degenerative arthritis of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5243. 2. The criteria for an evaluation in excess of 20 percent beginning October 26, 2019, for degenerative arthritis of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5243. 3. The criteria for an initial evaluation in excess of 10 percent for degenerative joint disease of the right knee have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5010-5260. 4. The criteria for an initial compensable evaluation for hammertoe affecting toes number 2, 3, 4, and 5 of the left foot have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5282. 5. The criteria for an initial evaluation in excess of 10 percent for a bunion of the left foot have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1 4.10, 4.71a, Diagnostic Code 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from September 1981 to September 1985, and with the United States Coast Guard from November 1986 to November 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in October 2018, when it was remanded for development. The case has been returned to the Board for further appellate review. Increased Ratings Disability ratings are determined by applying the criteria set forth in the Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, a finding of which must be supported by adequate pathology and evidenced by visible behavior on motion. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability also include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, VA must consider the provisions of 38 C.F.R. § 4.40 and § 4.45. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss of a joint can give rise to a higher schedular rating, to include if such functional loss is due to pain, but pain itself does not rise to the level of functional loss contemplated by VA regulations. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-38 (2011). 1. Entitlement to an initial evaluation in excess of 10 percent prior to October 26, 2019, and in excess of 20 percent thereafter for degenerative arthritis of the cervical spine The Veteran is currently in receipt of a 10 percent evaluation prior to October 26, 2019, and a 20 percent evaluation thereafter under Diagnostic Code (DC) 5243. Spine disabilities are generally rated under the same general formula, except for intervertebral disc syndrome (IVDS), which has an alternate rating formula for incapacitating episodes. 38 C.F.R. § 4.71a, DCs 5235-5243. As there is no evidence in the record of IVDS of the Veteran's cervical spine, the Board will consider the evaluation using the general rating formula. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent evaluation is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned to a cervical spine disability where there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the cervical spine is not greater than 170 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal fate or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. All of the evaluations under the general formula for rating spine injuries consider the disabilities 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 Board notes that certain changes to the musculoskeletal rating criteria went into effect on February 7, 2021, including to DC 5243, under which the Veteran's cervical spine is rated. This code now requires there be disc herniation with compression and/or irritation of the adjacent nerve root. However, as the rating criteria formula remain the same, the Board does not find it necessary to assign a different diagnostic code. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (regulations may not have retroactive effect unless their language specifies so). Here, the degenerative arthritis of the Veteran's cervical spine manifested primarily in pain and increasing limitation of motion throughout the appeal period. In October 2013, the Veteran attended a VA spine examination, at which he reported sharp, shooting pains in his neck that radiate into the lower part of his head. He also reported muscle tension in his neck and shoulders, and a "creaking" with movement of the neck. The Veteran reported his neck symptoms worsen with prolonged immobility and stress, though he did not report flare-ups affecting the function of his neck. The range of motion of the neck was measured to be 40 degrees in forward flexion; 30 degrees in extension; 25 degrees in right lateral flexion; 15 degrees in left lateral flexion; 45 degrees in right lateral rotation; and 55 degrees in left lateral rotation. Objective evidence of pain was noted in right and left lateral rotation, and no additional loss of range of motion was noted after three repetitions. Localized tenderness, pain upon palpation, guarding, and muscle spasm were not noted upon examination. The Veteran submitted private treatment records reflecting complaints of neck pain, which he described as constant and that he associated with neurological symptoms such as tingling and numbness in the upper extremities. In May 2013, the Veteran requested his private primary care physician refer him to a pain management clinic for long-term daily narcotic treatment for his neck and back pain. Regarding the neurological symptoms, while one private neurologist suspected cervical myelopathy in November 2013, another private neurologist later noted an October 2017 MRI did not show myelopathy, and a private neurosurgeon noted cervical spondylosis without myelopathy in April 2014. In May 2015, the Veteran reported to the private neurologist that the private neurosurgeon did not recommend surgery until the Veteran was experiencing functional loss in the neck. Throughout these private treatment records, there are no reports of episodes of increased neck symptoms or new symptoms not otherwise described. In a September 2015 visit with his VA primary care physician for pain medication renewal, the Veteran's neck was examined. The physician noted normal movement of the neck, although with slightly limited motion in lateral rotation and flexion bilaterally. The physician did not note any measurements of range of motion. The Veteran's VA treatment records do not contain other complaints of neck symptoms. In October 2019, the Veteran attended another VA spine examination, at which he reported neck pain and stiffness occasionally radiating upward to his head, causing headaches, and down his arms, causing intermittent tingling. The Veteran reported five or six "really bad periods" a year, when he described his neck pain as "excruciating." He reported avoiding heavy lifting, and noted that, when he is driving, he needs to turn his whole body to look to the side. The range of motion of the neck was measured to be 35 degrees in forward flexion; 20 degrees in extension; 25 degrees in right lateral flexion; 15 degrees in left lateral flexion; 70 degrees in right lateral rotation; and 65 degrees in left lateral rotation. Objective evidence of pain was noted in all planes of motion, both in weight-bearing and non-weight-bearing, and no additional loss of range of motion was noted after three repetitions. The examiner opined that the Veteran would lose approximately five degrees of motion in flexion, right lateral flexion, and right and left lateral rotation after repetitive use and during the flare-ups the Veteran described. Localized tenderness, pain upon palpation, guarding, and muscle spasm were not noted upon examination. After review of the evidence of record, the Board finds that an increased evaluation is not warranted for degenerative arthritis of the Veteran's cervical spine. First, for the period prior to the October 26, 2019, the only range of motion measurements in the record are those documented at the October 2013 VA examination, where the Veteran's forward flexion was noted to be 40 degrees and the combined range of motion of the cervical spine was 210 degrees. Further, there was no muscle spasm or guarding noted in the cervical spine during this period. Based on these symptoms, no greater than a 10 percent evaluation is merited under the general rating formula. The Board has also considered the provisions of sections 4.40 and 4.45, see Mitchell, 25 Vet. App. at 37-38, DeLuca, 8 Vet. App. at 207-08, given the consistent reports of constant neck pain with occasional radiation to the head and upper extremities. However, the Veteran's reports during this period, including when seeking private treatment and considering surgical options, did not describe neck pain leading to functional loss approximating a limitation of forward flexion to less than 30 degrees or a combined range of motion of the cervical spine less than 170 degrees, as described in the criteria for a 20 percent evaluation. Rather, the Veteran reported that surgery was not recommended unless he experienced functional loss and opted for pain medication to manage his symptoms. Next, for the period beginning October 26, 2019, the Veteran is in receipt of a 20 percent evaluation, and the Board finds that an increase is not warranted. The only evidence available during this period is the October 2019 VA examination, at which the range of motion measurements indicated forward flexion of 35 degrees and a combined range of motion of 230 degrees. Based on the examiner's opinion that an additional five degrees of motion would be lost during flare-ups and after repetitive use, the Board finds that a 20 percent evaluation is appropriate under the general rating formula, as this evidence reflects functional loss approximating forward flexion of 30 degrees, rather than 15 degrees or less as described by the criteria for a 30 percent rating. Further, throughout the period on appeal, the record reflects limitation in lateral flexion and rotation, and at the October 2019 examination, the Veteran described needing to turn his whole body to see to the side when driving. This type of functional loss is better described by the criteria for a 20 percent evaluation than a 30 percent evaluation, as it does not reflect a limitation of forward flexion or favorable ankylosis of the cervical spine. Rather, it describes a limitation of right and left lateral rotation, which is contemplated under the criteria for the combined range of motion, and not in the criteria for a 30 percent or greater evaluation. Finally, the Board acknowledges the reports of increased pain, but notes that all the evaluations in the general rating formula consider pain as a symptom. Therefore, the Board finds that evaluations in excess of 10 percent prior to October 26, 2019, and in excess of 20 percent thereafter are not warranted for degenerative arthritis of the cervical spine. 2. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the right knee The Veteran is currently in receipt of a 10 percent evaluation under DC 5010-5260 for his right knee disability. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code here indicates that the Veteran is service connected for traumatic arthritis of the right knee due to residuals of patellar tendon repair, rated on the basis of limitation of flexion as governed by DC 5260. Under DC 5260, a 10 percent evaluation is warranted when flexion is limited to 45 degrees. A 20 percent disability rating is warranted when flexion is limited to 30 degrees, and a 30 percent rating is warranted when flexion of the leg is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. As noted above, changes have been implemented to the musculoskeletal rating criteria effective February 7, 2021. Diagnostic Code 5010 may now be rated either as limitation of motion, as before, or as dislocation or other specified instability of the affected joint. Changes were not made to the rating criteria for DC 5260. The Board will apply the new criteria for the period beginning February 7, 2021, if the new criteria are more beneficial to the Veteran than the prior version of the regulation. See Kuzma, 341 F.3d at 1329. Here, the record reflects the Veteran's right knee disability manifests in pain, occasional swelling, and stiffness. In September 2013, the Veteran attended a VA knee examination, at which he reported occasional swelling and constant pain in the anterior right knee region that radiates down his leg, and which worsens with increased activity such as climbing stairs. The range of motion was measured to be 120 degrees in flexion and full extension, with no objective evidence of pain on motion and no additional loss after three repetitions. The examiner did not provide an estimate of any additional loss during the described flare-ups or after repetitive use; to this extent, this examination is deemed inadequate, and the Board will only consider evidence from the other portions of this examination. See Sharp v. Shulkin, 29 Vet. App. 26, 34 35 (2017). Pain on palpation was noted in the right knee. Stability testing was all normal, and no history of subluxation or dislocation was noted. The Veteran reported using a knee brace for his right knee during flare-ups. The Veteran's VA treatment records reflect complaints of knee pain, but no treatment for specific episodes of knee pain or other symptoms. The Veteran's private treatment records do not reflect any treatment for the right knee disability. In October 2019, the Veteran attended another VA knee examination. He reported bilateral knee pain and stiffness that worsens with overexertion. The Veteran also reported that it was difficulty to stand and walk for long periods of time, and that he cannot bend or squat. The range of motion of the right knee was measured to be 110 degrees in flexion and full extension, and pain was noted on the examination, both in weight-bearing and in non-weight-bearing. The examiner also noted moderate localized tenderness over the patella of the right knee. The Veteran was unable to perform three repetitions due to pain, and the examiner opined the Veteran would lose an additional ten degrees of motion during a flare-up or after repetitive use. The examiner noted difficulty with repetitive bending and squatting. Muscle strength and stability testing were all normal. After review of the evidence of record, the Board finds an increased evaluation is not warranted for the Veteran's right knee disability. First, regarding the range of motion measurements in the record, the Veteran's right knee flexion was measured to be 120 degrees and 110 degrees; for a rating higher than 10 percent, flexion must be limited to 30 degrees. Next, considering the provisions of sections 4.40 and 4.45, the Board finds that the Veteran's complaints of increased pain and stiffness after exertion do not approximate a limitation of flexion to 30 degrees, as the October 2019 examiner noted the Veteran had difficulty with repetitive bending and squatting, but did not echo the Veteran's report that he was unable to bend or squat during a flare-up. Further, the examiner opined the Veteran would lose an additional ten degrees of motion during a flare-up or after repetitive use, indicating flexion to 100 degrees, which cannot be said to approximate a limitation of flexion to 30 degrees. Finally, the Board has also considered assigned a separate rating under other diagnostic codes applicable to the knee. However, there is no evidence, lay or clinical, during the appeal period of ankylosis, instability, or limitation of extension of the right knee. Conditions of the semilunar cartilage were not noted, nor was impairment of the tibia and fibula or genu recurvatum. Accordingly, a separate evaluation is not available to the Veteran under any of these other diagnostic codes. Therefore, the Board finds an evaluation in excess of 10 percent for the Veteran's right knee disability is not warranted. 3. Entitlement to an initial compensable evaluation for hammertoe affecting toes number 2, 3, 4, and 5 of the left foot The Veteran's left foot hammertoe disability currently is assigned an initial noncompensable rating under DC 5282. Under this code, a noncompensable rating is assigned for hammertoe affecting single toes, and a maximum 10 percent rating is assigned for hammertoe affecting all toes on a single foot without claw foot. This diagnostic code was not updated in the changes to the musculoskeletal rating criteria effective February 7, 2021. In September 2013, the Veteran attended a VA foot conditions examination, at which he noted he had not been treated for hammertoe since military service and did not take any medication for the condition. The examiner noted hammertoe affecting the second, third, fourth, and little toes of the left foot. Aside from hallux valgus of the left foot, discussed below, the examiner noted only arthritis in the right foot, related to aging, and did not note any other conditions of either foot. The examiner noted there was no functional limitation resulting from the hammertoe identified in the toes number two through five of the left foot. In October 2019, the Veteran attended another VA foot conditions examination, at which he reported pain under his toes. The Veteran also reported pain in his left foot with prolonged walking and standing. Again, he noted he did not seek any treatment for the hammertoe condition and treated the pain with over-the-counter pain reliever as needed. Like the earlier examination, aside from hallux valgus, no other conditions of either foot were noted. The Board notes there are instances in both examination reports where hammertoe was identified as affecting the toes of the right foot rather than the left foot; however, the preponderance of the evidence, including the Veteran's service treatment records, indicates there is only a hammertoe disability affecting the second, third, fourth, and little toes of the left foot. Upon review of the evidence of record, the Board finds an increased evaluation for hammertoe is not warranted in this case. There is no clinical finding of hammertoe of the left great toe, nor are there any lay reports from the Veteran of pain in his left great toe or other symptoms suggestive of hammertoe in this toe. Therefore, the Veteran cannot be found to have hammertoe of all toes on his left foot, which is the criteria for a 10 percent evaluation under DC 5282. Further, the complaint at the October 2019 examination of pain in the left foot upon use appears to be attributed to the hallux valgus, which will be discussed below, as the Veteran initially described the hammertoe as causing pain under the toes, and did not report increased pain under or in the toes upon prolonged standing and walking. The Board therefore finds the reported increase in left foot pain upon use does not approximate hammertoe of the left great toe for purposes of an increased rating for hammertoe. The Board has also considered higher evaluations under other diagnostic codes pertaining to disabilities of the feet; however, there is no evidence demonstrating claw foot or malunion or nonunion of the tarsal or metatarsal bones. Thus, a higher evaluation is not available. Moreover, while higher evaluations are available for other foot conditions, examination reports specify that there is no indication of any other foot disability. Therefore, the Board finds a compensable evaluation for hammertoe affecting toes number 2, 3, 4, and 5 of the left foot is not warranted. 4. Entitlement to an initial evaluation in excess of 10 percent for a bunion of the left foot The Veteran is currently in receipt of a 10 percent evaluation for a bunion (hallux valgus) of the left foot under DC 5280, which governs hallux valgus. This diagnostic code provides for a maximum 10 percent rating for either a unilateral hallux valgus that has been treated with surgical resection of the metatarsal head or a unilateral severe hallux valgus if equivalent to amputation of the great toe. This diagnostic code was not updated in the changes to the musculoskeletal rating criteria effective February 7, 2021. The Veteran did not seek treatment for the left foot bunion, either with VA or any private provider. In September 2013, the Veteran attended a VA foot conditions examination, at which he reported the bunion is painful and makes it hard to wear shoes. The examiner noted hallux valgus of the left foot, with mild or moderate symptoms, with no history of surgery. Aside from the hammertoe discussed above, the examiner noted only arthritis in the right foot, related to aging, and did not note any other conditions of either foot. The examiner noted an x-ray performed in conjunction with the VA examination that documented severe hallux valgus and commented that the arthritic changes to the left first metatarsophalangeal joint was part and parcel of the bunion disability. The examiner opined the functional limitation of the bunion was mild. In October 2019, the Veteran attended another VA foot conditions examination, at which he reported nagging pain to the bottom and top of his left foot, which becomes a sharp pain with use. The Veteran reported he treated the foot pain with over-the-counter pain reliever as needed. The examiner noted the Veteran had not had surgery for the bunion, and, aside from hammertoe, no other conditions of either foot were noted. The examiner noted left foot pain on non-weight-bearing, and with prolonged walking and standing. The maximum schedular rating available for hallux valgus is 10 percent. 38 C.F.R. § 4.71a. Throughout the entire initial rating period on appeal, the Veteran has been in receipt of a 10 percent disability rating for the left foot bunion. As the maximum schedular rating has already been assigned, a higher schedular rating under this diagnostic code is not available. The Board notes the finding of arthritic changes associated with the left foot bunion disability and has considered a rating under the diagnostic codes pertaining to arthritis, particularly degenerative arthritis, DC 5003. However, these codes provide for evaluation on the basis of limitation of motion, and none of the diagnostic codes governing the feet provide for evaluation based on limitation of motion of the toes. Diagnostic Code 5003 does provide for a 10 percent evaluation where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups, and for a 20 percent rating for the same where there are occasional exacerbations. Here, though, the disability does not involve two or more major joints or minor joint groups. See 38 C.F.R. § 4.45. Therefore, assigning a separate rating for arthritis of the left first metatarsophalangeal joint would not garner the Veteran a higher rating for his left foot bunion disability. In conclusion, the Board finds a rating in excess of 10 percent for the left foot bunion is not warranted. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 10 percent prior to October 26, 2019, and in excess of 20 percent thereafter for degenerative arthritis of the lumbar spine is remanded. At the October 2013 VA spine examination, the Veteran reported undergoing physical therapy for his lower back pain. Although the Veteran identified several private physicians treating him for back pain and submitted authorization for these records, the physical therapy is not reflected in the records obtained, nor is it documented in the VA treatment records. As these records may contain evidence of functional limitations resulting from the Veteran's lumbar spine disability, they are relevant to determining the proper rating for this disability, and a remand is necessary to attempt to obtain them. (Continued on the next page) The matter is REMANDED for the following action: Ask the Veteran to identify any private treatment that he may have had specifically for his low back disability that is not already of record, including any records from physical therapy in or around October 2013. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. A. Yaffe Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.