Citation Nr: 21029973 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 14-35 632 DATE: May 17, 2021 ORDER Entitlement to an initial rating of 20 percent, but not higher, for the entire period on appeal for degenerative disc disease of the lumbosacral spine is granted. REMANDED Entitlement to a rating in excess of 10 percent for post-traumatic osteoarthritis of the left knee (left knee disability) is remanded. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome of the right knee (right knee disability) is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for pelvic floor dysfunction, to include ase secondary to service-connected post-traumatic stress disorder (PTSD) is remanded. FINDING OF FACT For the entire period on appeal, the Veteran's degenerative disc disease of the lumbosacral spine manifested in abnormal spinal contour and flexion limited to, at worst, 60 degrees with pain. CONCLUSION OF LAW The criteria for an initial rating of 20 percent, but not higher, for degenerative disc disease of the lumbosacral spine have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1987 to September 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal of July 2008 and May 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In her substantive appeal, the Veteran requested a hearing before the Board. The Veteran was scheduled for her requested hearing in May 2019. However, in April 2019, the Veteran withdrew her request for a hearing before the Board. A review of the record shows that in a December 2019 rating decision, the Veteran was assigned a 20 percent rating for her back disability, effective October 8, 2019. That does not constitute a full grant of the benefit sought on appeal. However, the Board has limited its consideration accordingly. Increased Rating Lumbosacral Degenerative Disc Disease (Back Disability) The Veteran has asserted that she should have a higher rating for her back disability as her symptoms are worse than those contemplated by the currently assigned ratings. At a January 2008 VA spine examination, the Veteran reported that she treated her low back with NSAID as needed with some relief. She reported flare-ups of variable severity, frequency, and duration. Flare-ups were precipitated by bending. Additional limitations included increased pain and some additional limitation of range of motion during flare-ups. The Veteran walked unaided and could walk "as far as needed." She was reportedly unsteady "at times." On range of motion testing, forward flexion was limited to 90 degrees with pain starting at endpoint. Extension was limited to 30 degrees with pain starting at 20 degrees. Right and left lateral flexion and rotation were all limited to 30 degrees with pain starting at endpoint. Pain increased with repetitive movements. There was no additional limitation of motion with repetitive motion. Examination revealed tenderness at bilateral lumbosacral paraspinals. The Veteran had an abnormal spinal contour, described as slightly exaggerated lumbar lordosis. The examiner diagnosed IVDS, but stated that there were no incapacitating episodes in the past 12 months. X-rays showed lower lumbar arthropathy and mild degenerative disc disease/degenerative joint disease of the lower lumbosacral spine. At a July 2014 VA back conditions examination, the Veteran reported flare-ups, noting she could not predict when she would have them. On range of motion testing, forward flexion was limited to 85 degrees, with pain beginning at endpoint. Extension and bilateral lateral flexion were all limited to 25 degrees with pain beginning at endpoint. Right and left lateral rotation was limited to 30 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions without any additional loss of motion. Functional loss was described as less movement than normal and pain on movement. The examiner found that the Veteran has increased pain during flare-ups, but there was no additional limitation of motion or functional loss during flare-ups or with repetitive use. Examination revealed bilateral paraspinal lumbosacral spasm and pain anywhere the examiner palpated. The muscle spasm did not result in abnormal gait or spinal contour. Muscle strength testing was normal in the lower extremities. No muscle atrophy was present. The Veteran's IVDS resulted in less than one week of incapacitating episodes in the past 12 months. The Veteran did not use any assistive devices. Regarding the impact of her low back disability on her ability to work, the Veteran reported that she became fatigued after working and felt pain at the end of the day. At a December 2019 VA back examination, the Veteran reported that she currently treated her low back with pain medication, acupuncture, and cupping. Flare-ups occurred with cold weather and walking too much. In terms of functional loss, the Veteran experienced back pain when walking, standing, or sitting too long (i.e., longer than 30 minutes). On range of motion testing (both active and passive), forward flexion was limited to 60 degrees. Extension, as well as right and left lateral flexion and rotation were all limited to 30 degrees. The examiner noted pain in forward flexion, which caused functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or motion. The examiner found that pain significantly limited functional ability with repeated use over a period of time and during flare-ups. In terms of range of motion, the examiner estimated that forward flexion would be limited to 60 degrees; extension, right and left lateral flexion and rotation would all be limited to 20 degrees each. Her reduced range of motion limited bending, standing, walking, running, and squatting. Examination revealed localized tenderness or pain on palpation in the bilateral back of moderate severity. There was evidence of pain with weight bearing. There was no guarding or muscle spasm of the thoracolumbar spine. Additional factors contributing to disability included interference with sitting or standing. Muscle strength was normal. There was no ankylosis of the spine. The examiner stated that the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by physician in the past 12 months. For the entire period on appeal, the Board finds that the Veteran is entitled to an initial rating of 20 percent for her back disability. In this regard, the January 2008 VA examiner found that the Veteran had an abnormal spinal contour, diagnosed as slightly exaggerated lumbar lordosis. Such a finding is consistent with a 20 percent rating. Although the July 2014 VA examiner did not note abnormal spinal contour, the examination showed bilateral paraspinal muscle spasm. In light of the foregoing, the Board finds that the criteria for a higher, 20 percent rating are more nearly approximated for the entire period on appeal. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242, 5243. The Board find that the Veteran is not entitled to a rating in excess of 20 percent for her back disability. In this regard, there is no indication from the record that the Veteran has thoracolumbar spine flexion limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, to include limitation that rises to the level of such. Further, the Board acknowledges that the Veteran was noted to be significantly limited by pain on repeated use over a period of time and during flare-ups. However, the VA examiner accounted for any additional limitation when noting the Veteran's range of motion. Further, while the Veteran has IVDS, the Veteran has not experienced incapacitating episodes requiring medically prescribed bed rest. As such, even with consideration of all pertinent disability factors, there remains no reasonable basis for the assignment of a rating in excess of 20 percent. As such, a rating in excess of 20 percent for the Veteran's back disability is not warranted for any period on appeal. 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). REASONS FOR REMAND Increased Rating Right and Left Knee Disabilities The United States Court of Appeals for Veterans Claims (Court) found that 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. In other words, if there is not a discussion of those measurements in a VA examination report, the examination is inadequate, unless the examiner determines that those range of motion testing listed could not be conducted. Correia v. McDonald, 28 Vet. App. 158 (2016). A review of the record shows that the Veteran was most afforded VA examinations for her knees in January 2008 and July 2014. A review of those examination reports fails to show findings that are consistent with the holding in Correia. Therefore, the Veteran should be afforded a new VA examination to determine the current level of severity of all impairment resulting from her service-connected knee disabilities. Service Connection Right Shoulder Disability The Veteran has a current diagnosis of right shoulder arthritis, which she asserts is related to heavy lifting during active duty. Treatment records show a diagnosis of right shoulder osteoarthritis from at least 2003. Service treatment records are silent for complaints of, or treatment for, a right shoulder disability. However, as the Veteran asserts continuous right shoulder pain since active service, the Board finds that a VA examination is warranted to address the etiology of her current right shoulder arthritis. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service Connection Pelvic Floor Dysfunction The Veteran was afforded a VA examination for her diagnosed pelvic floor dysfunction in March 2016. However, the examiner did not consider the Veteran's contention that her pelvic floor dysfunction is secondary to her service-connected PTSD. As such, the examination report is inadequate, and a new examination is warranted. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected right and left knee disabilities. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. In assessing the severity of the bilateral knee disability, the examiner should test for pain on both active and passive motion, in weight-bearing and non-weight bearing. 2. Schedule the Veteran for a VA examination to address the nature and etiology of her claimed right shoulder disability. The claims file must be made available to, and reviewed by the examiner. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed right shoulder disability had its onset in service or is otherwise related to service. A complete rationale, including a discussion of the Veteran's lay statements, should be provided. 3. Schedule the Veteran for a VA examination to address the nature and etiology of her pelvic floor dysfunction. The claims file must be made available to, and reviewed by the examiner. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's pelvic floor dysfunction is caused or aggravated by her service-connected PTSD. A complete rationale, including a discussion of the Veteran's lay statements, should be provided. 4. Then, readjudicate the claims. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claims to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Roya Bahrami, 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.