Citation Nr: 21041034 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-17 485 DATE: July 7, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for a thoracolumbar spine disability, diagnosed as degenerative disc disease and scoliosis is denied. REMANDED Entitlement to service connection for a gallbladder condition, status post cholecystectomy is remanded. Entitlement to a disability rating in excess of 10 percent for a left-knee disability is remanded. Entitlement to a disability rating in excess of 10 percent for a right-knee disability is remanded. FINDING OF FACT The symptoms of the Veteran's back disability are productive of, at worst, forward flexion limited to no less than 30 degrees. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for a thoracolumbar spine disability, diagnosed as degenerative disc disease and scoliosis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242-5239. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from February 2001 to February 2005. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) July 2017 and January 2018 rating decisions of the Agency of Original Jurisdiction (AOJ). In June 2020 the Board issued a decision denying the Veteran's claim relating to her back and bilateral knee disabilities. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In July 2020, the Court issued a Joint Motion for Partial Remand (JMPR) relating to the aforementioned claims. Specifically, the Court vacated the Board's findings that denied the Veteran a disability rating in excess of 20 percent for her back disability, as well as her claims for disability ratings in excess of 10 percent for her bilateral knee disabilities, and remanded the Veteran's claims back to the Board for additional development. 1. Entitlement to a disability rating in excess of 20 percent for a thoracolumbar spine disability, diagnosed as degenerative disc disease and scoliosis The Veteran claims that her back disability, diagnosed as DDD and scoliosis, warrants a disability rating in excess of 20 percent. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) has also held that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court has also issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See also Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (finding orthopedic examination inadequate with regard to flare-ups where the examination was the basis for a denial of a higher disability rating and the Veteran was not receiving the maximum schedular rating based on limitation of motion). Disability of the spine may be evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (GRF) or under the formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes (Diagnostic Code 5243), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The Veteran's lumbar spine disability is evaluated under Diagnostic Code 5235. Diagnostic Code 5235 indicates that the Veteran's condition be evaluated under the GRF. Under the GRF, a 20 percent disability is assigned when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, when the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 38 C.F.R. § 4.71a. A 40 percent evaluation is warranted if the forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine, and finally a 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. Id. Diagnostic Code 5243 provides evaluations for IVDS based on the frequency of incapacitating episodes. A 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is available for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is available with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is available with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. The Board notes that the Veteran had not been diagnosed with IVDS. Note (2) provides that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. The Veteran was first seen for a VA examination of her back in May 2005. At the time, the Veteran was diagnosed with a "thoracic strain." The Board notes that a later November 2018 treatment record found that this initial diagnosis was incorrect. Rather, it should have been diagnosed as a lumbar strain in 2005, and then in 2007 it progressed into lumbar arthritis. The examiner found no abnormalities, and that the range of motion (ROM) of the Veteran's spine was "entirely normal." Repetitive ROM testing did "not cause discomfort," nor did it decrease the ROM. The motor and sensory exam was "normal." The Veteran reported that she did not experience flareups. In January 2007 the Veteran was seen for another VA examination to review her back condition, as she had complained that her condition worsened since the May 2005 examination. The Veteran stated she experienced "episodes of pain roughly once per week." The Veteran reported that "her mobility is unaffected by her back." ROM testing was normal and without pain. The Veteran's forward flexion was 90 degrees, and her extension, along with left- and right-lateral rotation were all 30 degrees as well. Repetitive motion testing did not cause additional pain or loss of function, and the Veteran denied any flareups. Overall, the physical examination was normal. The Veteran's next examination of her spine was in March 2017. At that time the Veteran's condition had progressed somewhat. The examiner found no evidence of pain on the examination, nor was there pain or additional loss of function after repetitive motion testing. There was no limitation to the forward flexion, extension, or left- and right-lateral flexion. However, the Veteran's left- and right-lateral rotation were both limited to 25 degrees (out of 30) each. Muscle strength testing was normal, and no neurological conditions were noted. The examiner was unable to address the impact of flareups without resorting to speculation. Furthermore, the examiner failed to point out whether their inability to speculate was due to their own limitation in experience, training or knowledge, or a more general limitation in the relevant medical fields. As such, the Court found that it was improper for the Board to rely on the March 2017 VA examination for adjudication purposes. The Veteran was seen for another VA examination in August 2018. As with the prior exam, the Veteran reported experiencing flareups. At this time the ROM of the Veteran's back had worsened significantly. The Veteran's forward flexion was limited to 40 degrees (out of 90), her extension was limited to 5 (out of 30), her right-lateral flexion limited to 20 (out of 30), and her left-lateral flexion was limited to 15 (out of 30). There was no limitation to her left- or right-lateral rotation. Repetitive motion testing led to no additional loss of function or loss of ROM. However, as with the prior March 2017 VA examination, the examiner was unable to opine on the impact of flareups, on the basis that "there is no conceptual or empirical basis for making such a determination without directly observing" the impacts of a flareup. In April 2021 the Veteran was seen for her most recent VA examination, per the Court's JMPR. The examiner found that during periods where she was not undergoing a flareup, the Veteran's ROM was limited to the following: forward flexion to 40 degrees, and extension to 10. All other ROM motion was found to be normal. There was no further limitation to her ROM after repetitive motion testing, though pain was noted on forward flexion and extension. However, after repeated use over time, the Veteran did experience additional loss of ROM. Her forward flexion was limited to 35 degrees, her extension to 5, and her left- and right-lateral flexion, as well as her left- and right-lateral rotation, were all limited to 25 degrees (out of 30). The examiner found that during flareups the Veteran did experience additional loss of ROM. The extent of the additional loss of ROM is as follows: forward flexion was limited to 35 degrees, her extension to 5, and her left- and right-lateral flexion, as well as her left- and right-lateral rotation, were all limited to 25 degrees. The examiner found no neurological issues, no problems with muscle strength, no radiculopathy, and no ankylosis. The Board finds that the probative medical evidence shows that, at worst, such as during flareups or after repeated use over time, the severity of the Veteran's back disability warrants a 20 percent disability rating. This is based on the fact that, at worst, her forward flexion is greater than 30 degrees but less than 60 degrees. The Board notes that the most recent VA examination in April 2021 adequately addressed the impact of flareups on the Veteran's back disability without resorting to mere speculation. A higher 40 percent rating is not warranted as her forward flexion of the thoracolumbar spine is not 30 degrees or less, nor is there is favorable ankylosis of the entire thoracolumbar spine. Furthermore, there is no evidence that the Veteran has ankylosis of her spine. A separate rating under DC 5243 for IVDS is not warranted as the Veteran has not been diagnosed with that condition. Based on the foregoing, the Board finds that the Veteran does not meet the criteria for a disability rating in excess of 20 percent for her lumbar spine disability. There is no reasonable doubt to be resolved. 38 U.S.C. § 5107 (b); Gilbert, supra. The appeal is therefore denied REASONS FOR REMAND 1. Entitlement to service connection for a gallbladder condition, status post cholecystectomy, is remanded. The Veteran claims that her gallbladder condition, status post cholecystectomy, is caused by, or otherwise due to her military service. In particular, the Veteran alleges that her high cholesterol, a condition noted in her service treatment records (STRs), is the reason she eventually had her gallbladder removed in 2007. The Board notes that a medical opinion regarding the etiology is warranted since the assessment of the etiology is complex in nature. Jandreau v. Nicholson, 49 F.3d 1372 (Fed. Cir. 2007). The Board notes that the Veteran's claims file does not contain her medical treatment records relating to her treatment for her gallbladder condition prior to her 2007 surgery, nor does it contain the treatment records relating to the surgery itself. The Board finds that a remand is necessary to allow VA to fulfill its duty to assist, and to allow the Veteran to properly develop her claim. 2. Entitlement to a disability rating in excess of 10 percent for a left-knee disability is remanded. 3. Entitlement to a disability rating in excess of 10 percent for a right-knee disability is remanded. The Veteran claims that her bilateral knee disabilities warrant ratings in excess of 10 percent for each knee. As noted above, the Board previously denied the Veteran's claims, and the denial was vacated by the Court's JMPR. The Court's JMPR found that the most recent VA examination, performed in March 2017, was inadequate for adjudication purposes as it failed to properly address the impact of flareups. The Board finds that a remand is necessary to assist the Veteran in fully developing her case. Regarding her claims relating to her bilateral knee disabilities, a proper VA examination is required to fully comply with the Court's JMPR. The matters are REMANDED for the following action: 1. The AOJ shall make all reasonable efforts to obtain the Veteran's medical treatment records relating to her gallbladder condition generally, and her 2007 cholecystectomy specifically. If necessary, the AOJ shall obtain the necessary medical release forms from the Veteran. All documentation sent and received by the AOJ must be associated with the claims file. 2. Obtain a VA medical opinion to determine the nature and etiology of any current gallbladder disability. If the examiner indicates that a VA examination is necessary, an examination should be afforded to the Veteran. The examiner should review the record. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current gallbladder condition, status post cholecystectomy, had its clinical onset during service or is related to any in-service disease, event, or injury, including the notation of high cholesterol during service. The examiner should determine if the high cholesterol noted during service necessitated the gall bladder removal in 2007. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 3. The AOJ shall collaborate with the Veteran to schedule a VA examination to determine the severity of her bilateral knee disabilities. The examiner shall be given a copy of the Veteran's claims file, as well as a copy of these remand directives. (a.) The examiner must perform all indicated tests, including any diagnostic testing deemed medically necessary, to determine the severity of her bilateral knee disabilities. The examiner must also specifically address the severity, frequency, and duration of any flareups, as well as the degree of any additional functional loss or range-of-motion due to the flareups. The examiner must provide a complete rationale for all expressed medical opinions. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. 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). J. CONNOLLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.