Citation Nr: 21029343 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-09 351 DATE: May 13, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for a low back disability is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's low back disability has not approximated forward flexion of the spine limited to 30 degrees or less, even when accounting for functional loss due to pain. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1979 to April 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2014 and January 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in December 2018 when they were remanded for additional development. 1. Entitlement to an initial rating in excess of 20 percent for a low back disability. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The General Rating Formula for evaluating the spine provides for a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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 disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. 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). The Board notes VA revised the rating criteria for evaluating spine disorders, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). Generally, a change in rating criteria during the pendency of the claim applies prospectively, if more favorable. Diagnostic Code 5242 now addresses degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome. As such, the changes to the rating criteria evaluating disorders of the spine have no impact on the Veteran's rating. Facts The pertinent evidence of record includes a May 2014 VA examination in which the Veteran was diagnosed with degenerative arthritis of the lumbar spine. No flare-ups were reported. Testing revealed forward flexion limited to 40 degrees with pain beginning at 40 degrees. After repetitive testing, forward flexion was not reduced further than 40 degrees. The examiner indicated there was functional impairment, including less movement than normal, pain on movement and disturbance of locomotion. The examiner reported he had muscle spasm and guarding resulting in abnormal gait or spinal contour. No ankylosis was found. The impact on the Veteran's ability to work was described as significant pain with marked limitation of motion, an inability to bend down and squat, and significant difficulty putting on shoes. The Veteran submitted an August 2014 statement in which he indicated he had worsening symptoms, including an inability to bend. In a September 2014 statement, the Veteran stated he cannot stoop or kneel without assistance. The Veteran was afforded another VA examination in November 2014 in which he did not reports flare-ups. He did indicate he experienced daily pain and weakness. Range of motion testing showed flexion limited to 45 degrees with pain beginning at 45 degrees. After repetitive testing, forward flexion was not reduced further than 45 degrees. The examiner found functional impairment, including less movement than normal, weakened movement, pain on movement and disturbance of locomotion. The examiner reported he requires the occasional use of a cane due to his back disability. The examiner described the functional impact on the Veteran's ability to work as lifting limited to 20 pounds at one time, walking limited to two blocks or a quarter mile, sitting and standing limited to one hour each, and total sitting/standing limited to 3 to 4 hours per day. The claim was remanded by the Board in December 2018 for a VA examination to determine the severity of the service-connected low back disability. The Veteran was afforded a February 2020 VA examination in which he reported flare-ups of his low back disability, occurring weekly and moderate in severity. He stated the flare-ups can last a couple minutes, are precipitated depending on his position and are alleviated by medication. Range of motion testing revealed forward flexion limited to 50 degrees and extension to 10 degrees, with pain during testing causing functional loss. After repetitive testing, forward flexion was not reduced further. The examiner noted pain significantly limits the Veteran's functional ability over time. With regard to flare-ups, the examiner indicated the examination was not conducted during a flare-up, and is neither medically consistent or inconsistent with the Veteran's statement describing functional loss during flares. The examiner further opined during flare-ups, pain further reduced the Veteran's range of motion, including forward flexion to 45 degrees and extension to 5 degrees. No ankylosis was found. The examiner indicated the impact on the Veteran's ability to work was inability to lift over 10 pounds and difficulty bathing and tying his shoes. The examiner further reported there is no evidence of pain with weight bearing, but there was objective evidence of pain with non-weight bearing and on passive range of motion testing. Analysis After a review of the evidence of record, the Board finds that the preponderance of the evidence is against an initial rating in excess of 20 percent as the Veteran's low back disability does not approximate forward flexion of the spine to 30 degrees or less, even when factoring in his functional loss due to pain and flare-ups. Additionally, ankylosis was not shown by the medical evidence or claimed by the Veteran. Thus, an increased rating in excess of 20 percent for the low back disability is not warranted at any point during the appeal period. As noted above, the medical evidence of record, including the VA examinations of record, did not find forward flexion limited to 30 degrees or less. As such, even in consideration of the Veteran's pain, flare-ups and functional loss, the Board determines his low back disability approximated forward flexion greater than 30 degrees, and thus, the current 20 percent rating is warranted. 38 C.F.R. § 4.71a, DC 5237. Additionally, the Board finds the post-remand February 2020 VA examination complied with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Although earlier VA examinations were not entirely compliant in this regard, the information in the recent VA examination supplied this information and shows that the severity level of the low back is similar and consistent throughout the appeal period. Thus, it cured any aspects of the duty to assist and provides sufficient evidence for deciding the claim. With regard to whether a separate rating is warranted for any neurological manifestations of the Veteran's low back disability, the Veteran has a separate 10 percent rating for his right lower extremity radiculopathy, effective from November 1, 2014. The Veteran has not appealed this rating, and the Board will not address this issue further. Aside from his separate rating for his right lower extremity radiculopathy, the record fails to reflect any neurologic impairment of the Veteran's lower extremities, nor is there any evidence of bowel or urinary incontinence or any other spinal-related neurological impairments. Accordingly, a separate evaluation for any such low back disability related neurological impairment is not warranted. In sum, the evidence of record fails to reflect a basis for awarding an initial rating in excess of 20 percent for the orthopedic manifestations of the Veteran's low back disability, or for awarding a separate rating for any related neurological manifestations (other than the currently compensated right lower extremity radiculopathy). Accordingly, the preponderance of the evidence is against the claim and an initial increased rating in excess of 20 percent is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. The claims for service connection for bilateral knee disabilities were remanded by the Board in December 2018 for further development, including a VA examination to determine whether the conditions were caused or aggravated by his service-connected low back disability. The Veteran was afforded a February 2020 VA examination in which he was diagnosed with left knee strain and right knee degenerative arthritis. The examiner indicated the Veteran's bilateral knee disabilities were not caused or aggravated by his service-connected low back and radiculopathy disabilities. It was stated that there was no concrete evidence to support that the arthritis in the Veteran's knees was caused or aggravated beyond its natural progression by the back and radiculopathy disabilities. It was opined what was more likely than not the cause for the knee disabilities was that he worked in labor jobs that required physical duties since leaving service, including in maintenance and warehouses. Additionally, the examiner stated the Veteran has chronic issues of obesity, along with age degradation. The examiner indicated the Veteran was 60 years old with 60-year-old knees. Moreover, the examiner noted the Veteran's ongoing obesity, age, and career working in labor jobs put a lot of strain and pressure on both knees and led to the current disabilities. In April 2021 correspondence from the Veteran's representative, it was noted that the Veteran suffered from various lower extremity maladies during service, including for bilateral foot and ankle pain, including when his left heel and ankle were run over by a jeep. It was also noted the Veteran had ongoing trouble with his boots beginning in basic training, which likely affected his knees. The representative noted while the Veteran worked in labor jobs post-service, the injuries sustained during service may have contributed to his current bilateral knee disabilities. Initially, the Board finds the February 2020 medical opinion provided by a VA physician has adequately addressed the secondary service connection theory of entitlement with sufficient rationale, including whether the Veteran's bilateral knee disabilities were caused or aggravated by his service-connected low back disability and associated radiculopathy. However, with regard to direct service connection, based on the April 2021 correspondence from the Veteran's representative, and the Veteran's service treatment records, an additional opinion is necessary to determine whether the Veteran's bilateral knee disabilities had their onset during service. The Veteran's service treatment records contain a March 1979 record which shows the Veteran twisted his right knee in service during training. While there were no other complaints, treatment, or diagnoses in the STRs related to the knees, there are various other lower extremity complaints in the records. See April 1979 report (noting his complaint of persistent bilateral hip pain); July 1980 report (noting his left heel was run over by a car); undated report (noting a complaint of bilateral foot pain, achilles tendonitis, and a plan for a boot exchange). A remand is warranted for an examination to determine whether the Veteran's bilateral knee disabilities had their onset during, or are otherwise related to, service. 4. Entitlement to TDIU. Additionally, because the Veteran's TDIU claim is inextricably intertwined with the claims remaining on appeal, appellate consideration of entitlement to a TDIU rating is deferred pending resolution of the remaining claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature, onset and etiology of the Veteran's bilateral knee disabilities. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: Whether it is at least as likely as not that any right/left knee disability/functional impairment diagnosed had its onset or is otherwise related to the Veteran's active service? A complete rationale should be given for all opinions and conclusions expressed. The examiner should discuss the Veteran's right knee complaints during service in March 1979, as well as the other lower extremity complaints and treatment found in the service treatment records. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Jarrette A. Marley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Isaacs, 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.