Citation Nr: 21027598 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 11-31 846 DATE: May 6, 2021 ORDER An evaluation of 40 percent, but no higher, prior to September 12, 2016, for degenerative disc disease of the lumbar spine is granted. REMANDED Entitlement to an evaluation greater than 30 percent for a right knee disability, to include chondromalacia of the right patella with torn medial meniscus repair and osteomalacia, is remanded. Entitlement to an evaluation greater than 10 percent for left knee limitation of flexion, associated with left knee strain and degenerative joint disease, is remanded. Entitlement to a separate rating for urinary incontinence as a possible neurological manifestation of the service-connected degenerative disc disease of the lumbar spine is remanded. FINDING OF FACT The Veteran's degenerative disc disease of the lumbar spine is manifest by forward flexion limited to 30 degrees. CONCLUSION OF LAW The criteria for a 40 percent evaluation, but no higher, prior to September 12, 2016, for degenerative disc disease of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5243-5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1984 to June 1987, from August 1989 to August 1990, and from January 1991 to May 1991. These matters are on appeal from a January 2010 rating decision. In January 2020, the Board of Veterans' Appeals (Board) denied the appeal. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted an Amended Joint Motion for Partial Remand (JMPR). Entitlement to an evaluation greater than 20 percent prior to September 12, 2016, for degenerative disc disease of the lumbar spine. The Veteran contends that she is entitled to a higher rating for her degenerative disc disease of the lumbar spine. As a preliminary matter, the October 2020 JMPR found that the Board provided inadequate reasons and basis for denying an evaluation greater than 20 percent for prior to September 12, 2016, for degenerative disc disease of the lumbar and the denial of a separation evaluation for urinary incontinence. The Veteran's degenerative disc disease of the lumbar spine is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5243-5242. 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. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under 38 C.F.R. § 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 first afforded a VA back examination in November 2009. She endorsed flare-ups that resulted in limitation motion and difficulty bending. There was pain noted that radiated down the right leg and paralumbar tenderness. There was no guarding of movement. Range of motion studies demonstrated: flexion to 80 degrees with pain beginning at 80 degrees; extension to 30 degrees with pain beginning at 30 degrees; right lateral flexion to 30 degrees with pain beginning at 30 degrees; left lateral flexion to 30 degrees with pain beginning at 30 degrees; right rotation to 30 degrees with pain beginning at 30 degrees; and, left rotation to 30 degrees with pain beginning at 30 degrees. The Veteran was able to complete repetitive use testing without any additional limitation of range of motion. In September 2011, the Veteran was afforded another VA back examination. The Veteran endorsed urinary frequency but denied incontinence. She reported flare-ups that caused difficulty bending and reduced range of motion. There was no evidence of radiating pain on movement and muscle spasm was absent. There was no guarding on movement or weakness. Range of motion studies demonstrated: flexion to 60 degrees with pain beginning at 60 degrees; extension to 30 degrees with pain beginning at 30 degrees; right lateral flexion to 20 degrees with pain beginning at 20 degrees; left lateral flexion to 20 degrees with pain beginning at 20 degrees; right rotation to 25 degrees with pain beginning at 25 degrees; and, left rotation to 25 degrees with pain beginning at 25 degrees. The Veteran was able to complete repetitive use testing without any additional limitation of range of motion. May 2013 private medical records show active ranges of motion for the lumbar spine as follows: flexion to 75 degrees; extension to 25 degrees; right lateral flexion to 20 degrees; and, left lateral flexion to 25 degrees. Muscle strength testing was normal. Additionally, October 2013 private medical records show: active ranges of motion for the lumbar spine as follows: flexion to 30 degrees; extension to 25 degrees; right lateral flexion to 10 degrees; and, left lateral flexion to 10 degrees. In March 2015, the Veteran sought private treatment for her low back pain. She endorsed pain that radiated to the right posterior thigh and hip. She characterized the pain as constant severe, sharp, aching, and pressure. Her symptoms included stiffness, radicular right leg pain, and urinary and bowel incontinence. In April 2015, the Veteran was afforded a VA back examination. The Veteran reported flare-ups that were productive of increased pain, stiffness, and weakness. Range of motion studies showed: forward flexion to 80 degrees; extension to 20 degrees; right lateral flexion to 25 degrees; left lateral flexion to 30 degrees; right lateral rotation to 30 degrees; and, left lateral rotation to 30 degrees. There was pain on weight-bearing. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. The VA examiner was unable to provide an opinion regarding functional loss after repeated use over time and during flare-ups. Sensory testing showed moderate radiculopathy of the right lower extremity. The Veteran's back disability limited her ability to perform repetitive heavy lifting, pushing, or pulling. The Board finds that the VA examinations of record are inadequate because they do not include any estimates for ranges of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran has endorsed flare-ups throughout the appeal period that are productive of reduced range of motion, pain, weakness, and stiffness. Range of motion testing conducted in October 2013 documented forward flexion that was limited to 30 degrees. The evidence is at least in equipoise, when considering the functional impairment of the Veteran's flare-ups, that her forward flexion was limited to 30 degrees prior to September 12, 2016. Therefore, the criteria for a 40 percent evaluation are met. The Board has considered an evaluation greater than 40 percent for degenerative disc disease of the lumbar spine. However, there is no lay or medical evidence that the Veteran's degenerative disc of the lumbar spine was manifested by unfavorable ankylosis of the entire thoracolumbar spine. In reaching this decision, the Board has concerned the Veteran's functional loss during flare-ups and with repeated use over time. During flare-ups and after repeated use over-time, the Veteran has repeated decreased range of motion and stiffness rather than ankylosis. A 40 percent evaluation, but no higher, prior to September 12, 2016, for degenerative disc disease of the lumbar spine is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5243-5242. REASONS FOR REMAND 1. Entitlement to an evaluation greater than 30 percent for a right knee disability, to include chondromalacia of the right patella with torn medial meniscus repair and osteomalacia, is remanded. 2. Entitlement to an evaluation greater than 10 percent for left knee limitation of flexion, associated with left knee strain and degenerative joint disease, is remanded. The October 2020 JMPR stipulates that the March 2019 VA examination is inadequate because it does not indicate the point at which pain begins during range of motion testing and the VA examiner did not disclose ranges of motion for both knees during flare-ups. A remand is required to obtain an adequate VA examination. 3. Entitlement to a separate rating for urinary incontinence as a possible neurological manifestation of the service-connected degenerative disc disease of the lumbar spine is remanded. The October 2020 JMPR found that the Board provided inadequate reasons and basis denying a separation evaluation for urinary incontinence. In a March 2015 private treatment record, the Veteran complained of urinary and bowel incontinence. The Veteran also endorsed occasional incontinence due to back pain at the September 2016 VA examination. The Board finds that a remand is required to obtain a medical opinion regarding whether the Veteran's service-connected back disability is productive of urinary incontinence. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected bilateral knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The VA examiner must specify at which point during range of motion testing pain begins. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's urinary incontinence is at least as likely as proximately due to or aggravated beyond its natural progression by the service-connected degenerative disc disease of the lumbar spine. If an opinion cannot be rendered without a VA examination, the Veteran should be scheduled for such. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.R. Watkins, 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.