Citation Nr: 21032099 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 18-22 880A DATE: May 25, 2021 ORDER Entitlement to service connection for a cervical spine condition is granted. Entitlement to a disability rating higher than 30 percent for service-connected bilateral pes cavus with plantar fasciitis is denied. Entitlement to a disability rating higher than 40 percent for service-connected back strain, secondary to retrolisthesis L5 on S1 with associated degenerative disc disease, is denied. Entitlement to a disability rating higher than 10 percent for service-connected right knee retropatellar pain syndrome is denied. FINDINGS OF FACT 1. The Veteran's cervical spine condition, diagnosed as degenerative changes and muscle spasm, was at least as likely as not incurred during his active-duty service. 2. The Veteran's bilateral pes cavus disability is not manifested by marked contraction of the plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, or marked varus deformity. 3. The Veteran's service-connected lumbar spine disability is not manifested by unfavorable ankylosis and has not resulted in a diagnosis of intervertebral disc syndrome. 4. The Veteran's service-connected right knee disability is not manifested by limitation of flexion to 30 degrees or less, any limitation of flexion, or persistent or recurrent instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative changes and muscle spasm of the cervical spine have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to a disability rating higher than 30 percent for bilateral pes cavus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5278. 3. The criteria for entitlement to a disability rating higher than 40 percent for a lumbar spine condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5237. 4. The criteria for entitlement to a disability rating higher than 10 percent for a right knee condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to September 1982 and from April 1984 to April 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the current claims on appeal to the Agency of Original Jurisdiction (AOJ) for further development in September 2018 and January 2021. While the Veteran also appealed the denial of a claim for service connection for a left knee disability, also originating from a May 2017 rating decision, service connection for the claimed disability was subsequently granted in a February 2021 rating decision, thereby resolving the Veteran's appeal as to that issue. Additionally, the Veteran asserted in a May 2018 VA Form 9 that flare-ups of his lumbar spine and right knee conditions interfered with his ability to work. The Board has, therefore, considered whether the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability has been reasonably raised by the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Generally, VA will grant a TDIU when the evidence shows that the Veteran is precluded by reason of service-connected disability from securing or following substantially gainful employment, consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Marginal employment, which may include employment in a protected environment such as a sheltered workshop, is not considered substantially gainful employment. 38 C.F.R. § 4.16. The Veteran's statement supports the inference that he is currently employed, and the Board has found no evidence to support the proposition that this employment is only marginal in nature. Accordingly, the Board finds that the issue of entitlement to a TDIU has not been reasonably raised by the evidence of record and is, therefore, not before the Board at this time. Service connection for a cervical spine condition Generally, service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As an initial matter, the Board notes that the Veteran's treatment records reflect the existence of a cervical spine condition, and further support the inference that this condition has grown more severe over time. See January 2021 Medical Treatment Records at 2 (providing October 2006 report of "neck pain that travels down the left arm" and contemporaneous magnetic resonance imaging (MRI) showing "mild disk height loss at C6-7 with small spurs but no significant bony narrowing of neural foramina"); cf. id. at 5 (providing November 2016 MRI observing "[multilevel] spondylosis" and "[mild] disc space narrowing at C4/C5, C5/C6, C6/C7[,] and C7/T1"); see also id. (providing contemporaneous assessment of "[multilevel] degenerative changes and muscle spasm"). The Board therefore finds that the first Shedden factor has been met. The Board notes that the Veteran's service treatment records (STR), as well as his military personnel records, are consistent with his assertions that he sustained stress to his cervical spine during his active-duty service as a paratrooper: X-rays show that the cervical areas had old injuries probably over 15 or 20 years old as explained to me by the doctor... this injury... occurred during my military service... [due] to the heavy packs (+100 lbs.) [and] over 250 [parachute] jumps and my duties as a Jump Master... Because of the severity and pain of my lower back I never reported the upper back discomfort that was not as strong... [Most] of the time the pain with my upper back came as a result of lifting heavy equipment over my head or when I had a hard landing in my back. See May 2018 VA Form 9 (Correspondence) at 2; see also November 2004 STR at 8 (providing Veteran's assertion during 2004 separation examination of experiencing "recurrent back pain or any back problem"); see also March 2017 Discharge Certificate (noting receipt of Master Parachutist Badge, among others). The Board therefore finds that the second Shedden factor has been met as well. The Board notes that the Veteran has not undergone a VA examination specifically addressing this issue. The Board has therefore considered whether to remand this issue for a medical nexus opinion. However, the Board is also mindful of regulatory constraints on its ability to remand for further development, which "should not be undertaken when [the] evidence present is sufficient for this determination." 38 C.F.R. § 3.304(c). "Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board[.]" Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau and providing in pertinent part that medical evidence is not always required to establish a nexus for direct service connection). The rating decision granting service connection for the Veteran's lumbar spine condition was based in part on a VA examination of November 2004, which had similarly noted the Veteran's assertions of back pain following parachute jumps. See November 2004 VA Examination Report at 3. Additionally, the Veteran's DD Form 214 confirms that he received a master parachutist badge, as well as a regular parachutist badge and an Italian parachutist badge, reflecting significant parachuting experience during service. Thus, as the Veteran's assertions of incurring cervical spine pain following parachute jumps and lifting equipment are consistent with the duties reflected in his military personnel records, and because the medical evidence of record confirms the existence of a cervical spine disability, the Board finds that this evidence supports a finding that his cervical disability was at least as likely as not incurred during the same active duty service that gave rise to the service-connected lumbar spine disability. 38 U.S.C. § 5107. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for the claimed cervical spine disability. 38 C.F.R. § 3.303. Increased Ratings Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for a higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability rating decisions. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Nonetheless, even when 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 § 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 § 4.71a criteria."). Further, a higher rating based on functional loss may not exceed the highest rating available under the applicable Diagnostic Code pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80 (1997). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that whenever possible, VA examiners 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." 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. Rating Periods Before addressing these claims on the merits, the Board briefly clarifies the applicable rating periods at issue. The Veteran has submitted argument asserting entitlement to higher initial disability ratings for these conditions. See April 2021 Appellate Brief. The Board notes that its January 2021 remand characterized these issues as including initial disability ratings. However, the Veteran's argument offers no basis for readjudicating the initial disability ratings associated with these conditions, nor has the Board otherwise found such a basis in its most recent review of the record. See 38 C.F.R. § 3.400(o) (providing in pertinent part that the effective date for disability rating increases is generally "[the] date of receipt of claim or [the] date entitlement arose, whichever is later"); see also 38 C.F.R. § 3.160(d)(1)(i) (providing in pertinent part that adjudication of a claim under the legacy system of regulations becomes final if a notice of disagreement is not timely filed); cf. 38 C.F.R. § 3.156(c)(3) (providing for retroactive readjudication on the basis of newly-received service department records). The record reflects that the Veteran did not timely file a notice of disagreement (NOD) with the February 2005 rating decision which assigned initial disability ratings for these conditions. To the extent that subsequent January 2006 correspondence could be interpreted as a NOD regarding the Veteran's lumbar spine condition, the record reflects that that issue was the subject of an additional rating decision of May 2006, which the Veteran did not timely appeal. These rating decisions therefore became final. 38 C.F.R. § 3.160(d)(1)(i). While the Veteran's claims file now includes additional medical treatment records following the Board's prior remands, they are not service department records as contemplated by 38 C.F.R. § 3.156(c)(3). Accordingly, the Board now finds that the applicable rating period is from February 21, 2017, the date the Veteran filed his current claim as there is no evidence indicating that a higher rating was warranted for either of these disabilities within the one-year period prior to that date. 38 C.F.R. § 3.400(o). 1. Entitlement to a disability rating in excess of 30 percent for bilateral pes cavus. The Veteran's bilateral pes cavus is rated as 30 percent disabling from February 2017 under DC 5278. The applicable rating criteria provide that a disability rating in excess of 30 percent is not assigned for this condition unless there is bilateral "[marked] contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, [and] marked varus deformity." See 38 C.F.R. § 4.71a, DC 5278. The Veteran underwent VA examinations of his bilateral feet in May 2017 and January 2021. Neither examiner found the presence of the identified signs and symptoms in the applicable diagnostic criteria. See May 2017 VA Examination Report (Feet) at 2-5 (observing pain on use of the feet and shortened plantar fascia, but no callosities, no hammer toes, and no varus deformity); see also January 2021 VA Examination Report (Feet) at 2-5 (same). The Veteran's medical treatment records corroborate his assertions of bilateral foot pain, but do not otherwise support the inference that the Veteran's condition is best approximated by the rating criteria described above. See September 2019 Medical Treatment Records at 107 (providing treatment note of June 2017 observing "tenderness to palpation... [and] [mild] erythema... on 1-3 digits [of] both feet"). The Board has further considered whether a higher rating for plantar fasciitis would be warranted in accordance with amended regulations for evaluating musculoskeletal disabilities that went into effect on February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). These criteria, however, only provide for a maximum 30 percent rating for plantar fasciitis that is not relieved by surgical and non-surgical treatment. Thus, a higher rating is not warranted under the amended regulations. The assignment of a disability in excess of 30 percent for this condition is therefore not warranted. 38 C.F.R. § 4.71a, DC 5278. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the preponderance of the evidence of record is against the Veteran's claim. 38 U.S.C. § 5107. 2. Entitlement to a disability rating in excess of 40 percent for a lumbar spine condition. A rating decision of February 2021 increased the Veteran's disability rating for this condition to 40 percent effective February 21, 2017; thus, for the entire appeal period under consideration. Because the Veteran did not specify that this satisfied his appeal, this issue remains before the Board. The applicable rating criteria provide that a disability rating in excess of 40 percent is not assigned for lumbosacral spine disability unless there is unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). For compensation purposes, unfavorable ankylosis is defined in pertinent part as: The entire thoracolumbar spine... is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in [a] neutral position (zero degrees) always represents favorable ankylosis. See id. at Note (5) (emphasis added). These criteria further provide that they are applicable "[with] or without symptoms such as pain... stiffness, or aching in the area of the spine affected by residuals of injury or disease[.]" Id. The Veteran underwent VA examinations of his thoracolumbar spine in May 2017 and January 2021. Neither examiner found ankylosis of the Veteran's thoracolumbar spine, favorable or otherwise. See May 2017 VA Examination Report (Lumbar) at 6; see also January 2021 VA Examination Report (Lumbar) at 6. Instead, each examiner found that the Veteran retained a limited range of motion. See id. at 2 and 3, respectively. The January 2021 examiner further estimated that the Veteran retained a range of motion, albeit a severely limited one, even during flare-ups or following repeated use over time. See January 2021 VA Examination Report (Lumbar) at 4; see also Sharp, 29 Vet. App. at 35 (providing for the estimation of additional functional impairment experienced during flare-ups when conducting an examination during a flare-up would be impractical). The Board is mindful that a recent Court decision provided that "application of [38 C.F.R.] §§ 4.40 and 4.45 permits... an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis in other words, if it is the functional equivalent of ankylosis." See Chavis v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 660 (2021) at 20. The Board has therefore considered the Veteran's assertions as to the frequency and severity of his flare-ups, which are not entirely consistent. See May 2018 VA Form 9 (Correspondence) at 1 (asserting "constant flare-ups that completely incapacitate me for weeks at a time"); cf. January 2021 VA Examination Report at 2-4 (asserting flare-ups "[approximately] 3 or 4 times a year... [for] 4 or 5 days each time" resulting in a limited, but still extant, range of motion). The Board finds that the Veteran's lumbar spine condition, even if assumed to be as incapacitating as he asserts in his May 2018 correspondence, is not best approximated by the criteria for unfavorable ankylosis because it does not implicate any of the secondary symptoms identified by such criteria, nor symptoms of equivalent severity. As discussed above, the definition of unfavorable ankylosis contemplates fixation of the spine in such a position as to restrict not only one's range of motion, but one's ability to see, chew, or breathe normally. See 38 C.F.R. § 4.71a, General Rating Formula, Note (6). The Veteran has not asserted, nor does the evidence of record otherwise reflect, that his spine is contorted to this degree during flare-ups or that he is otherwise unable to adopt a neutral position, including by reclining or lying down, during such flare-ups. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5) (specifying that fixation of the spine in a neutral position of zero degrees is not unfavorable ankylosis); cf. May 2018 VA Form 9 (Correspondence) at 1 (asserting that limitation of motion precludes washing feet or putting on shoes without assistance). The Board also notes that favorable ankylosis of the entire thoracolumbar spine is rated as 40 percent disabling, which is the disability rating already assigned for this condition during the rating period on appeal. See 38 C.F.R. § 4.71a, General Rating Formula. Extended analysis of whether the Veteran's degree of functional impairment is equivalent to favorable ankylosis is therefore moot. Finally, the Board has considered the propriety of assigning a higher rating based on incapacitating episodes of intervertebral disc syndrome (IVDS). See 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Here, however, and IVDS diagnosis has not been made, and the Veteran has not been shown to have periods of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See id. at Note (1). While the Board notes that the applicable rating criteria provide for separately compensable disability ratings for nerve conditions associated with spine conditions, the evidence of record does not support a finding that such nerve conditions associated with lumbar spine condition are present. See 38 C.F.R. § 4.71a, General Rating Formula at Note (6). The Board therefore concludes that the assignment of a disability rating in excess of 40 percent for the Veteran's lumbar spine condition is not warranted. 38 C.F.R. § 4.71a, DC 5237, General Rating Formula. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the preponderance of the evidence of record is against the Veteran's claim. 38 U.S.C. § 5107. 3. Entitlement to a disability rating in excess of 10 percent for a right knee condition. The Veteran's right knee condition is rated as 10 percent disabling under DC 5260. The applicable rating criteria provide that a disability rating in excess of 10 percent is not assigned under this DC unless flexion of the leg is limited to 30 degrees or less. See 38 C.F.R. § 4.71a, DC 5260. The Veteran underwent VA examinations in May 2017 and January 2021, neither of which found limitation of flexion of this severity. See May 2017 VA Examination Report (Knees) at 2; see also January 2021 VA Examination Report (Knees) at 3. The January 2021 VA examiner also estimated that while flare-ups of the Veteran's right knee condition would further restrict his flexion of his right leg, they would not do so to 30 degrees or less. See id. at 6; see also Sharp, 29 Vet. App. at 35. The Board has considered the result of joint motion testing for pain in light of Correia, where the January 2021 VA examiner noted that the Veteran had pain during regular, active range of motion testing, and he was noted to have pain on passive range of motion testing, and in non-weight bearing. Objective evidence of pain, however, was not present in weight bearing range of motion testing. Nonetheless, even in the presence of pain, there is no indication in the record that the Veteran had additional range of motion loss or further functional limitation than shown on the VA examinations. See Thompson, 815 F.3d at 785. The Board notes that separately compensable disability ratings may be assigned for certain knee conditions without violating the general prohibition against the "pyramiding" of the same disability under multiple diagnoses. See 38 C.F.R. § 4.14; cf. Lyles v. Shulkin, 29 Vet. App. 107 (2017). However, the evidence of record does not support a finding that the Veteran has experienced additional symptoms, such as limitation of flexion or instability of the knee joint which would support such separate ratings. See May 2017 VA Examination Report (Knees) at 6-8; see also January 2021 VA Examination Report (Knees) at 7-10; see also January 2021 Medical Treatment Records at 10 (providing May 2017 MRI showing "adequate density of the bones" and "well-maintained" joint spaces, but also "small joint effusions" and "calcific tendinosis of the quadriceps tendons"); see also September 2019 Medical Treatment Records at 15 (providing May 2018 treatment note observing full range of motion of both knees); cf. 38 C.F.R. § 4.71a, DCs 5257, 5260. While the evidence indicates that the Veteran has used a knee brace for pain, he has not been shown to use an assistive device in the presence of persistent instability of the knee, or of any patellar instability, such as to warrant a separate rating under the amended musculoskeletal disability regulations. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, supra. In this regard, the Board has also considered the Veteran's assertion that "during flare-ups[,] [my] knee swells up and I lose a great deal of mobility and strength[,] [which] forces me to utilize a cane... in order to walk [straight]." See May 2018 VA Form 9 (Correspondence) at 1. As noted above, this is only partially consistent with the VA examinations of record, which did not find evidence of muscle weakness, nor the use of an assistive device in the presence of recurrent or persistent instability. The Board has no authority to assign disability ratings except as provided for by applicable regulations. See 38 U.S.C. § 7104(c). Accordingly, and in light of the Veteran's partially inconsistent reports of flare-ups associated with his lumbar spine condition as discussed above, the Board assigns greater probative weight to the findings of the January 2021 VA examiner on this point. The Veteran's limitation of extension of the right knee likewise does not satisfy the criteria for a separately compensable rating. See id. at 6 (estimating full extension of the leg to 0 degrees even during flare-ups); cf. 38 C.F.R. § 4.71a, DC 5261 (providing that a compensable rating is not assigned unless extension is limited to 10 degrees or more). The assignment of a disability rating in excess of 10 percent for the Veteran's right knee condition is therefore not warranted. 38 C.F.R. § 4.71a, DC 5260. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the preponderance of the evidence of record is against the Veteran's claim. 38 U.S.C. § 5107. Michael L. Wilson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, 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.