Citation Nr: 21031898 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-13 765 DATE: May 24, 2021 ORDER Prior to December 9, 2015, entitlement to an initial rating in excess of 10 percent for lumbar degenerative arthritis and intervertebral disc syndrome (IVDS) is denied. Subject to the laws and regulations governing the award of monetary benefits, from December 9, 2015, entitlement to a 40 percent rating, but no higher, for lumbar degenerative arthritis and intervertebral disc syndrome (IVDS) is granted. REMANDED The issue of entitlement to an initial rating in excess of 10 percent for left knee chondral defects of the femoral trochlea and medial patellar facet with degenerative arthritis (left knee disability) is remanded. The issue of entitlement to an initial rating in excess of 10 percent for right knee Osgood Schlatter revision and excision of the patella ossicle (right knee disability) is remanded. The issue of entitlement to a rating in excess of 10 percent for left knee instability is remanded. The issue of entitlement to a rating in excess of 10 percent for right knee instability is remanded. FINDINGS OF FACT 1. Prior to December 9, 2015, the Veteran's lumbar spine disability was not manifested by lumbar flexion greater than 30 degrees but not greater than 60 degrees; or the combined range of motion is not greater than 120 degrees; there was no evidence of muscle spasm or guarding severe enough to result in abnormal gait or contour. 2. From December 9, 2015, the Veteran's lumbar spine disability more nearly approximated forward flexion of 30 degrees or less without ankylosis. CONCLUSIONS OF LAW 1. Prior to December 9, 2015, the criteria for entitlement to a rating in excess of 10 percent for lumbar degenerative arthritis and intervertebral disc syndrome (IVDS) have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5242, 5243. 2. From December 9, 2015, the criteria for entitlement to a 40 percent rating, but no higher, for lumbar degenerative arthritis and intervertebral disc syndrome have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1988 to September 1988, from June 1991 to October 1991, and from September 1994 to December 1998. The Veteran also served on active duty in the U.S. Air Force from December 1998 to July 2014. He had additional service in the Army National Guard of Kansas and the U.S. Army Reserves. This appeal arose from a May 2015 rating decision. After the Veteran initiated his appeal of that decision, the Agency of Original Jurisdiction (AOJ) granted 10 percent ratings for the Veteran's left and right knee conditions from December 9, 2015. The AOJ also awarded a separate 10 percent rating for left knee instability from December 9, 2015. See February 2016 Rating Decision. In November 2020, the Board remanded the claims for further evidentiary development. During the pendency of the remand, in January 2021, the AOJ granted 10 percent ratings for the entire initial rating period for the Veteran's left and right knee conditions. The AOJ also granted a separate 10 percent rating for right knee instability from January 13, 2021. Furthermore, the AOJ granted a 40 percent rating for the Veteran's lumbar spine disability from January 13, 2021. Because the maximum benefit was not granted now or during the pendency of the appeal period, the issues of entitlement to higher evaluations remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to a rating in excess of 10 percent prior to January 13, 2021, and a rating in excess of 40 percent thereafter, for lumbar degenerative arthritis and IVDS. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. The Board notes that Diagnostic Code 5242 was changed to include degenerative disc disease (other than IVDS) with arthritis. Additionally, regarding Diagnostic Code 5243, the rating criteria now instructs that this code should only be assigned when there is a disc herniation with compression or irritation to the adjacent nerve root. For all other disc diagnoses, Diagnostic Code 5242 should be assigned However, as the rating criteria did not otherwise change with regard to the Veteran's lumbar spine disability on appeal, the Board finds that remand for a new VA examination to consider the new rating criteria is not necessary. Prior to January 13, 2021, the Veteran's lumbar spine disability was rated under Diagnostic Code 5242, which evaluates degenerative arthritis. From January 13, 2021, the Veteran's back disability is evaluated under Diagnostic Code 5243, which evaluates intervertebral disc syndrome or IVDS. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or 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. An evaluation of 20 percent is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. Turning now to the relevant evidence of the record, at the September 2014 VA Examination, the Veteran reported experiencing on and off back pain throughout the day, depending on the activity. The Veteran reported experiencing flare-ups due to lifting and twisting motions, which caused the disc to slip and results in sharp pain down his leg. The severity of the back pain was rated as a two to three out of 10. The severity of the sharp pain was described as a momentary 10/10. The Veteran's forward flexion was 90 degrees or greater, with no objective evidence of pain. The Veteran was able to perform repetitive-use testing. There was no additional limitation of range of motion after three repetitions. Pain on movement contributed to functional loss. The Veteran did have objective evidence of localized tenderness or pain to palpation for joints or soft tissue. There were no muscle spasms noted. Muscle strength was normal, and he did not have muscle atrophy. The Veteran did not exhibit ankylosis. Other than the radiculopathy, the Veteran did not have any other neurologic abnormalities. The Veteran did have IVDS but did not exhibit any incapacitating episodes at the time. He did not require any assistive devices. Arthritis was documented. At the December 2015 VA Examination, the Veteran complained of constant pain, described as aching, throbbing, and gripping. The Veteran reported experiencing flare-ups. During the flare-up, the Veteran reported that he did not do anything. The frequency of the flare-up pain was two times per month and lasted six hours. Aggravating factors included bending, twisting, reaching, twisting, looking over shoulder, and sitting for more than one hour. The Veteran's forward flexion was 70 degrees. Pain was noted in all planes, but it did not cause functional loss. There was no evidence of pain with weight-bearing or localized tenderness or pain on palpation of the joints. The Veteran was able to perform repetitive-use testing. There was no additional limitation of range of motion after three repetitions. The examination was not being conducted after repetitive use or during a flare-up. The examination is medically consistent with the Veteran's statements describing functional loss after repetitive use and during a flare-up. The examiner noted that factors, such as pain or weakness, did not significantly limit functional ability with flare-ups. Interference with sitting contributed to the disability. Muscle strength was normal, and he did not have muscle atrophy. The Veteran did not exhibit ankylosis. Other than his radicular symptoms, the Veteran did not have any other neurologic abnormalities. The Veteran did have IVDS but did not exhibit any incapacitating episodes at the time. He used a support belt occasionally when prolonged sitting was required or when performing physical activity. At the January 2021 VA Examination, the Veteran reported experiencing flare-ups once a month, being described in severity as moderate to severe. The flare-ups were precipitated by unpredictable but certain movements, such as bending, lifting and twisting. The Veteran also expressed that he could not exercise anymore. He experienced difficulty walking on an incline, bending, lifting, and twisting. The Veteran's forward flexion was 75 degrees. Pain was noted on examination and it caused functional loss. There was evidence of pain on passive range of motion. There was no evidence of pain on weight-bearing or non-weight-bearing. There was no evidence of localized tenderness or pain on palpation of the joints. The Veteran was able to perform repetitive-use testing. The Veteran's forward flexion after repetitive use testing was 65 degrees. Pain caused functional loss. The examination was not being conducted after repetitive use or during a flare-up. The examination is medically consistent with the Veteran's statements describing functional loss after repetitive use or during a flare-up. Pain and fatigue contributed to functional loss. Estimated forward flexion after repetitive use over time was 55 degrees. Estimated forward flexion during a flare-up was 29 degrees. There was no guarding or muscle spasm. Contributing factors to the Veteran's disability included less movement than normal and interference with sitting and standing. Muscle strength was reduced but he did not have muscle atrophy. The Veteran did not exhibit ankylosis of the spine. Other than his radicular symptoms, the Veteran did not have any other neurological abnormalities. The Veteran had IVDS with episodes of signs and symptoms requiring bed rest. The duration was less than one week. The Veteran used a brace occasionally as an assistive device. Although medical records document treatment relating to the lumbar spine, at no time has ankylosis of the spine been shown by the record. Nor do the records document consistent and credible evidence that support further increased ratings. After a thorough consideration of the evidence of the record, the Board finds that prior to December 9, 2015, the severity of the Veteran's lumbar spine disability is adequately contemplated by the 10 percent rating assigned. The Veteran's forward flexion did not approximate more than 30 degrees but less than 60 degrees, which is contemplated by the next higher evaluation of 20 percent. The Veteran exhibited normal flexion. The evidence does not show that the Veteran had a muscle spasm or guarding resulting in an abnormal gait or contour. The Board has considered reported symptoms such as painful movement, weakness or fatigability. As noted on the September 2014 VA Examination report, the Veteran was still able to perform activities during his flare-ups. The Veteran described his pain to be on and off and did not require any assistive devices. The symptoms experienced at the time do not rise to the level of severity contemplated by the 20 percent rating criteria. The Board determines that, prior to December 9, 2015, the severity of his condition is adequately encompassed by the 10 percent criteria. The Board acknowledges the Veteran's lay reports of symptoms and functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that the Veteran had pain and limited ambulation would not result forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees. The objective findings, as discussed above, do not demonstrate that pain has limited motion to the extent that a higher level of compensation is warranted under the applicable diagnostic codes prior to December 9, 2015. 38 C.F.R. § 4.71a. From December 9, 2015, the Board does find that the severity of his back condition warrants a 40 percent rating. The Board acknowledges that his forward flexion was noted to be 70 degrees at the December 2015 examination, which was worse than the 75 degrees reported at the January 2021 examination. However, the Veteran reported his inability to perform any activities during his flare-ups, which lasted up to six hours. The symptoms reported at the December 2015 examination were the same symptoms reported at the January 2021 examination, which supported the severity level contemplated by the 40 percent rating criteria. The Board has also taken into consideration the Veteran's reported limitation during flare-ups, functional impairment, limitation due to pain and the Veteran's contentions. Resolving reasonable doubt in favor of the Veteran, from December 9, 2015, the Veteran's lumbar spine disability has more closely approximated the criteria, and severity level, contemplated by the 40 percent rating. However, from December 9, 2015, a rating in excess of 40 percent is not warranted. The evidence of record is against a finding that the Veteran has had ankylosis at any time. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). In this case, no examinations or medical records have indicated that the Veteran has ankylosis. Thus, a rating of 50 percent or higher is not warranted. Since the Veteran is now in receipt of the maximum evaluation available for limitation of motion of the spine under the rating schedule, 38 C.F.R. §§ 4.40, 4.45, and 4.59 are not applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Also, a 40 percent rating is assigned for favorable ankylosis. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Thus, the 40 percent rating contemplates any episodes in which the Veteran's disability is so severe that he cannot move his back. The Board has also considered whether a higher evaluation may be warranted due to incapacitating episodes associated with IVDS. However, the lay and medical evidence of record is against a finding that the Veteran has had incapacitating episodes of the low back of at least six weeks during the past 12 months necessitating bed rest prescribed by a physician, which would warrant the higher rating of 60 percent. The Board notes that the Veteran is service connected for bilateral lower extremity axonal peripheral neuropathy, which was previously rated as lumbar radiculopathy. Thus, the Veteran is being compensated for any symptoms noted in the examinations. The Board has also considered whether the Veteran is entitled to separate ratings for other associated objective neurologic abnormalities. However, the examinations noted that the Veteran does not display any neurologic abnormalities. In summation, prior to December 9, 2015, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the Veteran's lumbar spine disability. From December 9, 2015, the Veteran is entitled to a 40 percent rating, but no higher, for his lumbar spine disability. REASONS FOR REMAND 1. The issue of entitlement to an initial rating in excess of 10 percent for left knee chondral defects of the femoral trochlea and medial patellar facet with degenerative arthritis (left knee disability) is remanded. 2. The issue of entitlement to an initial rating in excess of 10 percent for right knee Osgood Schlatter revision and excision of the patella ossicle (right knee disability) is remanded. 3. The issue of entitlement to a rating in excess of 10 percent for left knee instability is remanded. 4. The issue of entitlement to a rating in excess of 10 percent for right knee instability is remanded. After a thorough review of the evidence, the Board finds that a remand is necessary prior to the adjudication of the Veteran's claims of entitlement to increased ratings for his knee conditions. On the most recent examination in January 2021, regarding the Veteran's right knee, the examiner indicated that the Veteran experienced abnormal range of motion. However, it was not specified whether that abnormal range of motion contributed to functional loss. Additionally, additional loss of function or range of motion was noted after three repetitions, but the examiner did not specify the factors that caused such functional loss. This information is important in determining the current severity of the Veteran's knee condition, and if that severity should result in higher or separate ratings. Therefore, a new examination is necessary in order to obtain further details. The Board notes that the examiner provided those details for the Veteran's left knee. However, as a new examination of the knees will provide more information regarding the current severity of the Veteran's left knee, the issue of an increased rating for the left knee is inextricably intertwined and will be remanded as well. Additionally, as previously mentioned, the rating criteria for evaluating musculoskeletal disabilities were amended during the pendency of this appeal. The Veteran received separate ratings for instability of both knees under Diagnostic Code 5257. Prior to February 7, 2021, Diagnostic Code 5257, which evaluated recurrent subluxation and lateral instability, simply evaluated the condition based on severity level (mild, moderate, or severe). From February 7, 2021, Diagnostic Code 5257 is rated under either recurrent subluxation/lateral instability or patellar instability. The new criteria require particular medical and diagnostic findings. At this time, the record does not contain sufficient evidence to rate the Veteran's instability under the new rating criteria. Based on the reasons stated above, a remand is necessary in order to provide a new examination that adequately addresses the current severity and nature of the Veteran's knee conditions. The matters are REMANDED for the following action: 1. After associating any outstanding pertinent medical records, schedule the Veteran for an appropriate VA examination or examinations to determine the current nature and severity of his service-connected right and left knee disabilities. The examiner must conduct all indicated tests and studies, to include range of motion studies, as indicated below. The knees must be tested in both active and passive motion, and in weight-bearing and non-weight-bearing. The examiner should identify at what point during the range of motion that pain sets in. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she must clearly explain why that is so. The examiner must describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner must also state whether the examination is taking place during a period of flare-up (e.g., on a "bad day"). If not, the examiner must ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner must provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner is requested to identify the presence, or absence of ankylosis. If the presence of ankylosis is identified, this determination should be expressed in terms of whether the ankylosis is favorable or unfavorable; and, if feasible, in terms of the degrees of flexion or extension in which the knee joint is ankylosed. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination with respect to his knees, state whether the Veteran experiences recurrent subluxation, lateral instability, or patellar instability of the left or right knee, to include in the squatting position. For each knee, if subluxation or lateral instability is found, state whether: (1) the subluxation is recurrent; (2) the instability is persistent; (3) the disability involves a sprain, incomplete ligament tear, or complete ligament tear; and, (4) the Veteran requires a prescribed assistive device and/or bracing for ambulation. For each knee, if patellofemoral instability is found, state whether (1) there is a diagnosed condition that involves the patellofemoral complex; (2) the instability is persistent; and (3) the condition requires a prescription from a medical provider for a brace, cane, and/or walker. For purposes of the opinion, the "patellofemoral complex" is defined as "the quadriceps tendon, the patella, and the patellar tendon." The examiner should identify any nerves and muscle groups affected and state whether the level of impairment is characterized as slight, moderate, moderately severe, or severe. If any nerve involvement is wholly sensory, the examiner should so indicate. (Continued on the next page) In answering all questions, please articulate the reasons underpinning every conclusion. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion. 2. Then, review the record, conduct any additional development deemed necessary, and readjudicate the claims. If any benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case. The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.