Citation Nr: 21032645
Decision Date: 05/27/21	Archive Date: 05/27/21

DOCKET NO. 12-06 186
DATE: May 27, 2021

ORDER

Entitlement to a rating in excess of 20 percent for the Veteran's chondromalacia patella, status post injury and multiple arthroscopic surgeries of the left knee (left knee condition), based on recurrent subluxation or lateral instability, is denied prior to November 1, 2012. 

Entitlement to a rating of 20 percent, but no higher, is granted effective November 1, 2012, for the left knee condition based on recurrent subluxation or lateral instability.  

Entitlement to a separate 10 percent rating based on limitation of flexion of the left knee is granted effective November 4, 2011.

REMANDED

In addition, the following issues are remanded for additional development: entitlement to a disability rating higher than 10 percent for chronic lumbosacral strain, prior to March 30, 2015 and to a disability rating higher than 20 percent, thereafter; and entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis.

FINDING OF FACT

1. Prior to November 1, 2012, the Veteran's left knee condition had, at most, a moderate level of recurrent subluxation or lateral instability, but not a severe level.

2. Since November 1, 2012, the Veteran's left knee condition had, at most, a moderate level of recurrent subluxation or lateral instability, but not a severe level.

3. As of November 4, 2011, the Veteran had a diagnosis of arthritis of the left knee and had demonstrated painful limitation of motion in flexion on examination.  

CONCLUSION OF LAW

1.  The criteria for a rating in excess of 20 percent for the Veteran's left knee condition, based on recurrent subluxation or lateral instability, prior to November 1, 2012, is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257.

2. Since November 1, 2012, the criteria for a rating in excess of 20 percent for the Veteran's left knee condition, based on recurrent subluxation or lateral instability, is met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257.

3. The criteria for a separate 10 percent rating based on limitation of flexion of the left knee is granted effective November 4, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from November 1990 to May 1992.  

This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 

The Veteran appeared and testified at a hearing in June 2014 by the undersigned Veterans Law Judge. A transcript is associated with the claims file.

In September 2014, August 2016, and May 2018 the Board remanded the Veteran's claims for additional development. The claims have returned to the Board.

By way of background, on June 3, 2009, the Veteran filed an informal claim for an increased rating for his left knee for a rating in excess of 20 percent, which was denied. Upon further evaluation, the Veteran's left knee rating was reduced effective November 1, 2012. A rating of 10 percent was assigned and has been in effect since then. As the Veteran did not expressly disagree with the propriety of the reduction, the Board does not have the jurisdiction to address it. The Board may only address the increased rating claim on appeal and any disabilities related to that claim.

Increased Ratings Claims

1. Left knee condition

The Veteran contends that his left knee is more severe than the currently assigned ratings. He points to feelings of instability and his knee giving out.  Current ratings are in place for instability at 20 percent prior to November 2012, and 10 percent thereafter.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two evaluations are potentially applicable, 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.  Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

Separate ratings can be assigned for separate periods of time, based on the facts found.  Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded).  Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.  

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. While the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant DCs for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, lateral instability and recurrent subluxation of the knee, and meniscal disabilities. However, the critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability; thus "pyramiding" is to be avoided. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also 38 C.F.R. § 4.14. The Board will explore all possibilities in this case. One possibility is shortening of the lower extremity under Diagnostic Code 5275. However, as the Veteran's discrepancy is 2 centimeters and the minimum requirement is 3.2 centimeters, the criteria for a separate, compensable rating have not been met. 

Standard range of knee motion is from zero degrees (on extension) to 140 degrees (on flexion).  See 38 C.F.R. § 4.71, Plate II. 

Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a.   

When the limitation of motion is non-compensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint (such as the knee) or group of minor joints affected by limitation of motion.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a.

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).

Under Diagnostic Code 5260, a 0 percent (noncompensable) disability rating is assigned for flexion limited to 60 degrees, a 10 percent disability rating is assigned for flexion limited to 45 degrees, a 20 percent disability rating is assigned for flexion limited to 30 degrees, and a 30 percent disability rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a.

Under Diagnostic Code 5261, a 0 percent (noncompensable) disability rating is assigned for extension limited to 5 degrees, a 10 percent disability rating is assigned for extension limited to 10 degrees, a 20 percent disability rating is assigned for extension limited to 15 degrees, a 30 percent disability rating is assigned for extension limited to 20 degrees; a 40 percent disability rating is assigned for extension limited to 30 degrees; a 50 percent disability rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a.

Diagnostic Code 5257 provides for a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate subluxation or lateral instability. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Consideration of pain under 38 C.F.R. §§ 4.40 and 4.45 is not appropriate under Diagnostic Code 5257 because this code is not based on loss of range of motion. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Additionally, the Court recently made clear that objective medical evidence is not required to establish lateral instability under Diagnostic Code 5257, and the Board cannot categorically find that objective medical evidence is more probative than lay evidence without explaining why the finding was made. English v. Wilkie, 30 Vet. App. 347, 349 & 352-53 (2018). The Board may find lay evidence not competent with respect to whether lateral instability exists, but an explanation must be provided. If the Board finds that lay evidence is competent concerning instability, it may still discount that lay evidence on a case-by-case basis and weigh it against medical evidence in its role as fact finder. Id., at 353.

Other DCs pertaining to the knee include DC 5258, under which a single, maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint.  DC 5259 holds that symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code.    

Significantly, § 4.71a does not expressly prohibit separate evaluations under Diagnostic Code 5257, 5260, and 5259. See Lyles v. Shulkin, 29 Vet. App. 107 (2017); see also Esteban, supra.

In addition to the general criteria for increased ratings claims, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.  Further, the final sentence of 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. Correia v. McDonald, 28 Vet. App. 158 (2016). 

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.

During the pendency of this appeal, VA amended the 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 Codes 5257, 5262), effective from February 7, 2021.  As is relevant to this appeal, the following changes were made with respect to Diagnostic Code 5257.  

Regarding Diagnostic Code 5257, the regulations in effect from February 7, 2021, now provide the following:  

Recurrent subluxation or instability: Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation....................................30

One of the following......................................20

Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s),crutch(es), walker) for ambulation,

Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g, cane(s), crutch(es), or a walker) or bracing for ambulation.

Sprain, incomplete ligament tear, or complete ligament tear (repaired, repaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation............10

Patellar instability: 

A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or walker..........................30

A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker................20

A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker.........................................................10

Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.  Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).  Id.  

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C. § 5107(b). 

Evidence

The Board finds the most probative evidence to be the VA examinations of record, as well as the contemporaneous medical records. The medical professionals have the expertise to treat, assess, and measure the Veteran's disability. For that reason, the Board gives these records great probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The Veteran's first examination during the period on appeal was June 2009. He reported symptoms of pain, swelling, instability, fatigability, weakness, giving way, lack of endurance, stiffness, and locking. The Veteran reported flare-ups of severe pain every day with an estimated 50 percent impairment on his daily activities. The Veteran reported he used a cane 4-5 times a week, just in case his knee buckles. The Veteran reported symptoms of dislocation and subluxation, but it is unclear if they were current or past symptoms. No ankylosis of the left knee was found. The Veteran's left knee range of motion was limited to 74 degrees flexion, with pain. The Veteran walked with a slight limp. Overall, the examiner found there was a moderate effect on the Veteran's usual occupation and daily activities. 

Prior to the period on appeal, the Veteran saw J.P., M.D., complaining of pain, popping, catching, give way, and pain in his left knee. He had not been seen by that provider for left knee symptomology since September 2004. The Veteran next saw that provider in August 2010. The Veteran reported a new injury of tenderness, and the doctor stated it appeared to be a flare-up.

The Veteran attended a VA examination for his knees in May 2011. Because the examination was for both knees, the Board gives the Veteran's description of his symptoms little weight. However, the examiner found his knee range of motion to be full, without instability, and no meniscus issues. 

In the November 2011 VA examination, the Veteran reported continuous pain every day, that is severe, precipitated by standing and walking. He did not report flare-ups. His range of motion was 0-140 degrees, with pain. The examiner did not find any functional loss associated with the Veteran's left knee, but did find that the Veteran had a previous meniscectomy and had pain into the joint and a diagnosis of arthritis (degenerative joint disease). His strength and stability testing were within normal limits. 

The Veteran's next knee examination was in September 2014. He reported that his knee locks up and gives out easily and he had fallen because of this. Further, that he had little feeling in the outside of his leg (below the knee) and it is burning more. He wore a left knee brace to prevent his knee from giving out.  Flare-ups were not reported. Upon range of motion testing, the Veteran's left knee flexion was limited to 110 degrees and extension to 5 degrees, with painful motion. No changes were noted after repetitions. While the Veteran did not have additional range of motion lost after repeated use, as for functional limitations, the examiner found the Veteran would have incoordination and disturbance of locomotion in his left knee. The examiner did not find instability, but did find a "history" of moderate subluxation/dislocation in his left knee. The examiner did not find a meniscus injury. The examiner noted that the Veteran did not want to flex his knee past 110 degrees due to claimed discomfort, however the examiner found no objective indication of a mechanical reason for his inability to tolerate flexion of knee. The Veteran regularly used a cane and brace for his knee, because it felt like it would give out. The examiner also noted that the Veteran had very little quadricep muscle mass of either leg which can cause imbalances of the knee structures and cause thigh, knee, and bilateral lower extremities pain. However, the examiner noted the knee condition itself does not cause the lack of muscle mass. 

The Veteran attended another VA exam in March 2015. The examiner noted multiple prior procedures to the Veteran's left knee. The Veteran reported that during flare-ups, his standing and walking was limited. Upon range of motion testing, his left knee was limited 100 degrees flexion, with pain on flexion and extension, pain with weightbearing, and tenderness all over the knee. There was no change after repetitive use. As for repeated-use and flare-ups, the examiner did not clarify the functional loss experienced during a flare-up, but did not find that weakness, fatigability or incoordination significantly limited functional ability with flare-ups. The Veteran had a mild reduction in strength, which the examiner found to be entirely due to the Veteran's left knee. The examiner did not note a history of instability, but did note a history of effusion. No instability was found during the examination. The examiner noted prior meniscectomies and that the Veteran was symptomatic from these procedures. The Veteran reported regular brace use and occasional use of crutch and cane. Arthritis was diagnosed on the left. The examiner found that the Veteran's functional impact would be limited standing and walking.

The Veteran most recent VA examination was in February 2019. He reported flare-ups as: "I don't have any feeling below my knee, there is constant grinding in my knee that activates the pain." As for functional loss, he reported he couldn't get down on his knees or walk very far. He had a full range of motion with pain. On repeated use, his flexion was reduced to 90 degrees due to pain. During flare-ups, his range of motion was reduced to 45 degrees with pain. His extension was within normal limits. His bilateral knees had a mild reduction in strength, but no atrophy. No history of subluxation or effusion, instability, or meniscus issues were assessed. The Veteran used a cane for his left knee. The functional impact would impact standing and ambulating for long periods of time, trouble with stairs, and render him unable to stand or crouch. In an addendum opinion dated June 2020, the clinician provided support for the findings of the February 2019 exam.  

The Board has considered the VA treatment records during the period on appeal. The Veteran has noted "feelings" of instability which the Board infers is from previous weakness and resulting surgeries. While there are some positive instability tests, they are not recurrent. The Veteran was prescribed a hinged knee brace in December 2014, but it does not appear to be the brace he wore at later appointments (neoprene brace). The Veteran used a cane, but he purchased this over the counter. See VAMC report dated October 2014. The record does not support that he was ever prescribed a cane. There was no greater limitation of motion that those found at the VA examinations. 

Instability Rating

The Board finds that at all points during the appeal, the Veteran has experienced symptoms indicative of a moderate level of instability, such that a 20 percent rating is warranted for the entire period on appeal. Given the above, the record does not demonstrate a greater level of recurrent subluxation or recurrent instability under Diagnostic Code 5257 during the period on appeal. In finding this, the Board notes that under the criteria prior to the amendments in February 2021, while objective medical evidence is not required to establish lateral instability under Diagnostic Code 5257, the Board cannot categorically find that objective medical evidence is more probative than lay evidence without explaining why the finding was made. English v. Wilkie, 30 Vet. App. 347, 349 & 352-53 (2018). The Board may find lay evidence not competent with respect to whether lateral instability exists, but an explanation must be provided. If the Board finds that lay evidence is competent concerning instability, it may still discount that lay evidence on a case-by-case basis and weigh it against medical evidence in its role as fact finder. Id., at 353.

Here, the Board finds that while the Veteran is competent to report subjective feelings of instability, the medical record is more probative in addressing both the severity and recurrent nature of the Veteran's left knee instability. While objective testing is not required to establish instability, the Board would expect to see more frequent objective findings of instability, to include at VA exams; but at no VA exam during the period on appeal was there any current objective findings of instability, let alone at the severe level. Thus, the Board does not find that the record establishes that the instability was recurrently severe at any time during the period on appeal. 

Notably, after November 1, 2012, the Veteran's instability is rated 10 percent, indicative of a mild level of instability.  However, the Board finds that the evidence both before and after November 1, 2012 reflects similar symptoms and complaints  both objectively and subjectively.  Therefore, the Board finds that a 20 percent rating is warranted for a moderate level of instability as of November 1, 2012. As above, however, the record does not establish that more than a moderate level of recurrent instability was present. Subluxation was not present, and if it was, it was not recurrent or severe.  Objective testing remained negative for both.

New regulations for musculoskeletal disabilities were made effective February 7, 2021. While the separate, compensable rating discussed below was not affected, the rating criteria involving recurrent subluxation and/or lateral instability were updated. (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). However, even under these new criteria, the Board finds that a higher, 30 percent rating would not be warranted. For the 30 percent rating to be met, both a brace and a cane must be prescribed for either lateral or patellar conditions. Id. Here, only a brace was prescribed; the cane was purchased over-the-counter. 

Limitation of Motion

The Board finds that a separate compensable rating based on diagnosed arthritis with painful motion to be warranted effective November 4, 2011. The medical record contains the first diagnosis of arthritis at the May 2011 VA examination, but arthritis with painful motion was first noted at the November 4, 2011 VA examination. Therefore, a separate 10 percent rating based on limitation of motion (flexion) is warranted from that point on. The greatest limitation in motion of flexion came at the February 2019 VA examination. However, the flexion was limited to 45 degrees, even considering flare-ups. To warrant a 20 percent rating, flexion must be limited to 30 degrees. To warrant a separate compensable rating for extension, it would have to be limited to 10 degrees. 

The Board does not find that even considering flare-ups or functional loss, the Veteran would be limited beyond 45 degrees flexion at any point. The majority of the Veteran's problems are related to pain, muscle weakness, and instability, not range of motion lost. 

Meniscal Involvement

As for the Veteran's meniscus, the November 2011 and March 2015 examiners both made a finding that the Veteran had previous meniscectomies. The other examinations did not. While it is permissible to assign separate ratings under Diagnostic Code 5258/5259, the probative evidence of record does not make clear how the instability symptomology is different than any meniscus symptomology. The Veteran's descriptions of his symptoms have consistently been that he experiences pain and instability. The Board is prohibited from rating the same disability, or the same manifestation of a disability, under different diagnostic codes. 38 C.F.R. § 4.14.  Thus, a separate rating is not warranted, as his ratings for instability and flexion compensate for those symptoms already. Further, the Board notes that if it were to assign a rating under Diagnostic Code 5258 instead of Diagnostic Code 5257, it would still be a 20 percent rating, the same level as the rating currently assigned; therefore, it is not more favorable than the instability rating.

Despite the Veteran's contention of more debilitating left knee conditions, the disability ratings assigned herein indicate a significant impact on his functional ability. Such disability evaluations assigned by VA recognizes his painful motion and instability. The critical question in this case, however, is whether the problems he has cited meet an even higher level under the rating criteria. For reasons cited above, the Board finds they do not.

In conclusion, the Board finds that a 20 percent evaluation for his left knee is warranted throughout the appeal, based on instability. The Board also finds that the evidence warrants separate, 10 percent rating for painful limitation of motion/flexion, as of November 4, 2011.

REASONS FOR REMAND

2. Entitlement to a disability rating higher than 10 percent for chronic lumbosacral strain, prior to March 30, 2015; and to a disability rating higher than 20 percent thereafter, is remanded.

The March 2018 Board Remand directed the AOJ to obtain an updated examination of the Veteran's back disability. In February 2019, the Veteran attended an examination. He complained of back pain that had "gotten a lot worse." While the examiner conducted the examination as directed, to include range of motion estimates during repeated use and during flare-ups, the examiner discounted these ranges of motion because the Veteran "did not give fair effort" during the examination. In support thereof, the examiner noted that the Veteran could sit without difficulty and ambulate short distances with his cane. 

However, the Board finds the examiner did not address medical evidence which could have a bearing on the Veteran's reported pain and limited motion. In this regard, the examiner only noted a diagnosis of lumbosacral strain. A VA record in August 2018 notes the following: "MRI of the lumbar spine reveals degenerative disc disease at L5-S1 with inflammatory end-plate changes and a chronic appearing small far lateral disc protrusion at L3-4 on the left, that may or may not be causing his complaints. Lumbar segmental muscles are atrophied, as well..." In another August 2018 VA record, it notes that the Veteran's falls may be related to his back and/or radiculopathy symptoms. Further, a June 2019 report indicated that there are fractures of the left L3 and L4 transverse process. 

Given the above, another examination is required to address the medical evidence of record and to reconcile the Veteran's more severe diagnostic findings with his pain on range of motion testing.  

3. Entitlement to a TDIU is remanded.

Given that the remanded issue of the Veteran's back rating above could significantly impact a decision on the issue of entitlement to a TDIU, to include on an extraschedular basis, the issues are inextricably intertwined.  A remand of the claims for entitlement to a TDIU is required.

The matters are REMANDED for the following action:

1. Obtain the Veteran's VA treatment records for the period from September 2020 to the present.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back.  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 attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. Further, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.  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).

The examiner should specifically address the following medical evidence found in the Veteran's VA treatment records: August 2018: "MRI of the lumbar spine reveals degenerative disc disease at L5-S1 with inflammatory end-plate changes and a chronic appearing small far lateral disc protrusion at L3-4 on the left, that may or may not be causing his complaints. Lumbar segmental muscles are atrophied, as well..." August 2018: the Veteran's falls may be related to his back and/or radiculopathy symptoms. June 2019: report indicated that there are fractures of the left L3 and L4 transverse process.

Should the examiner question the adequacy of the Veteran's effort during the examination, the examiner should provide specific evidence in support of the assertion, but should still fully address the questions posed by the Board.

3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is 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.

 

 

Bethany L. Buck

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	I. M. Hitchcock

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.