Citation Nr: 22017203 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 20-11 387 DATE: March 24, 2022 ORDER An initial rating of 20 percent from October 31, 2018 to June 13, 2021 for degenerative arthritis and stenosis of the spine is granted. An initial rating in excess of 20 percent for degenerative arthritis and stenosis of the spine is denied. An initial evaluation in excess of 10 percent for right knee limitation of flexion is denied. An initial evaluation in excess of 10 percent for right knee tendinopathy (instability) is denied. REMANDED Service connection for headaches, to include as due to a chronic qualifying disability is remanded. Service connection for irritable bowel syndrome (IBS), to include as due to a chronic qualifying disability is remanded. Service connection for fatigue, to include as due to a chronic qualifying disability is remanded. Service connection for left foot fungus is remanded. Service connection for left foot hammertoe disability is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. From October 31, 2018 through June 13, 2021 the Veteran's low back disability tended to approximate limitation of flexion to no more than 60 degrees. 2. The Veteran's low back disability has not been manifested by flexion that more nearly approximating 30 degrees. 3. The Veteran's right knee disability is manifested by complaints of pain with flexion limited to no worse than 100 degrees; findings of moderate instability have not been shown. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent from October 31, 2018 through June 13, 2021 for low back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237-5243. 2. The criteria for an initial rating in excess of 20 percent for low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237-5243. 3. The criteria for a rating in excess of 10 percent for right knee limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5260. 4. The criteria for a rating in excess of 10 percent for right knee tendinopathy (instability) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2015 to September 2016. This case was previously before the Board in January 2021. The Board, in pertinent part, denied service connection for headaches, IBS, and fatigue. The Veteran timely appealed this decision to the Court. In October 2021 pursuant to a Joint Motion for Partial Remand (Joint Motion), the Court vacated and remanded the Board's January 2021 decision to the extent that it denied service connection for headaches, IBS, and fatigue. The Veteran did not challenge those parts of the Board decision that denied service connection and earlier effective dates for several claims and those issues, at the request of the parties, were dismissed. The Court explicitly noted that it could not disturb the favorable grant of service connection for an acquired psychiatric disorder and its assignment of an initial evaluation. The Court further noted that the Board had remanded the issues of service connection for flat feet, a hammertoe of the left foot, and left foot fungus, and entitlement to initial evaluations in excess of 10 percent for degenerative arthritis of the spine, right knee flexion, and right knee tendinopathy, and entitlement to a TDIU. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). 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. Separate ratings can be assigned for separate periods based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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). 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). VA amended portions of the criteria for rating Musculoskeletal System and Muscle Injuries effective from February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 1. An initial rating of 20 percent from October 31, 2018 through June 13, 2021 for degenerative arthritis and stenosis of the spine. 2. An initial rating in excess of 20 percent for degenerative arthritis and stenosis of the spine. The Veteran's lumbar spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. A 20 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or 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. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Intervertebral disc syndrome (preoperatively or postoperatively) will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. According to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the last 12 months. As indicated by Note 1, for purposes of evaluations 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. The General Rating Formula directs that the Board must evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). 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 is zero to 30 degrees, and left and right lateral rotation is 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 cervical spine is 340 degrees and 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. 38 C.F.R. § 4.71a, Note (2). Analysis A February 2019 RO decision granted the Veteran service connection for low back disability and assigned a rating of 10 percent, effective October 31, 2018. In a July 2021 RO decision the Veteran's low back disability rating was increased to 20 percent, effective June 14, 2021. The Veteran has been diagnosed with degenerative arthritis of the spine and spinal stenosis of the thoracolumbar spine. The Veteran has complained that he is unable to work during flare ups and has repotted a constant dull ache, intermittent radiating pain down the right lower extremity. He has indicated that his back goes out 2-3 times per month. At the June 2021 VA spine examination, the Veteran indicated that he had back spasms in the middle of the night that would awaken him and denied that he had any flare-ups of his low back. Prior to June 14, 2021 At a December 2018 VA spine examination, the Veteran had forward flexion of the thoracolumbar spine to 70 degrees. It was noted that during flare-ups the Veteran's low back was limited on bending and that he had flare-ups 2-3 a month. The December 2018 VA examiner noted that the Veteran would sometime need help getting his shoes and socks on during flare-ups, and that he could only stand for 30 minutes before the back pain increased and he would have to adjust his position. These December 2018 VA examination findings, especially when viewed together with VA outpatient treatment records noting multiple complaints of low back pain, tend to indicate a disability picture comparable to having forward flexion of the thoracolumbar spine not greater than 60 degrees. All doubt has been resolved in the Veteran's favor. As such, the Board finds that a rating of 20 percent for low back disability from October 31, 2018 to June 13, 2021 is warranted. Rating in excess of 20 percent The Board must now determine whether the Veteran's low back disability warrants a rating in excess of 20 percent at any time during the appeal period. As noted, a rating of 40 percent for low back disability requires forward flexion of the thoracolumbar spine 30 degrees or less. The Board finds that the criteria to warrant the assignment of a rating in excess of 20 percent for low back disability has not been shown during the appeal period. At the December 2018 VA examination there was flexion to 70 degrees, and at the June 2021 VA spine examination the Veteran had forward flexion of the low back to 60 degrees. The Board has considered additional limitation of function due to factors such as low back pain, weakness, incoordination, and fatigability. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has made credible complaints of low back pain, and the Board has acknowledged that the Veteran has some limitation of flexion during flare-ups. However, the Veteran has been able to perform low back repetitive-use testing with no additional loss of function or range of motion, and the Veteran denied that he had flare-ups at the June 2021 VA spine examination. There is no muscle atrophy, and there have been no findings or comments from any examiner indicating that the Veteran has a low back disability picture approximating more limited range of motion that would warrant a higher evaluation, to include limited motion the functional equivalent of anklyosis. 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board has also considered whether a separate compensable rating for neurological impairment is warranted at any time during the rating period in question, other than that already granted (bilateral lower extremity radiculopathy) by the RO. As the medical evidence does not show such impairment, the Board finds that a separate evaluation for associated neurological impairment is not warranted. The Board has also contemplated assigning a disability rating based on incapacitating episodes. There is no showing of physician-prescribed bed rest and thus no incapacitating episodes within the meaning of Diagnostic Code 5243. Therefore, a rating based in incapacitating episodes is not warranted. In sum, an initial rating of 20 percent from October 31, 2018 through June 13, 2021 for degenerative arthritis and stenosis of the spine is warranted, and an initial rating in excess of 20 percent for degenerative arthritis and stenosis of the spine is not warranted. 3. An initial evaluation in excess of 10 percent for right knee limitation of flexion. 4. An initial evaluation in excess of 10 percent for right knee tendinopathy (instability). A February 2019 rating decision granted service connection for right knee limitation of flexion and assigned a rating of 10 percent disability rating under Diagnostic Code 5260, effective October 31, 2018. The February 2019 rating decision also granted service connection for posttraumatic tendinopathy, which is rated as 10 percent disabling under Diagnostic Code 5257, also effective October 31, 2018. Although this disability is listed as being related to instability, it appears that service connection was granted on the basis of functional loss due to pain. Standard range of motion of a knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The rating criteria do not define "slight," "moderate," and "severe." However, according to MERRIAM WEBSTER, "slight" means "small of its kind or in amount." See www.merriam-webster.com/dictionary/slight. "Moderate" means "tending toward the mean or average amount or dimension" or "limited in scope or effect." See www.merriam-webster.com/dictionary/moderate. "Severe" means "very painful or harmful" or "of a great degree." See www.merriam-webster.com/dictionary/severe. Also, rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under Diagnostic Code 5258, a 20 percent rating is warranted where there is evidence of dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic code 5259, symptomatic removal of semilunar cartilage in the knee warrants a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under Diagnostic Code 5260, limitation of flexion of the leg at the knee is rated at 10 percent if limited to 45 degrees, at 20 percent if limited to 30 degrees, and at 30 percent if limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, limitation of extension of the leg at the knee is rated at 0 percent if limited to 5 degrees, at 10 percent if limited to 10 degrees, 20 percent if limited to 15 degrees, at 30 percent if limited to 20 degrees, at 40 percent if limited to 30 degrees, and at 50 percent if extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A claimant who has both limitation of flexion and limitation of extension of the same leg may receive separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 to be adequately compensated for functional loss associated with injury to the leg. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-2004. A claimant who has arthritis and instability of the knee may receive separate ratings under Diagnostic Codes 5003 and 5257. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-98; VAOPGCPREC 23-97. The Veteran has been diagnosed with posttraumatic tendinopathy of the right knee. The Veteran has indicated that he initially injured his knees in 2015-2016 while laying carpet, and activity which irritated his knees. The Veteran asserts that any sort of exercise will irritate his knees, and that climbing stairs is painful. Regarding an increased evaluation based on limitation of flexion, medical records, including December 2018 and June 2021 VA examinations, which showed right knee flexion from 100 to 130 degrees, do not show right knee flexion limited to 30 degrees. Accordingly, an increased evaluation on the basis of limitation of right knee flexion is not warranted. The Board observes that the Veteran had full right knee extension on the December 2018 and June 2021 VA examinations. As for right knee instability, the December 2018 and June 2021 VA examiners indicated that objective findings of instability were not present, and right knee subluxation was not noted. There are no findings of instability of record, including the Veteran's lay statements, that would show that a rating in excess of 10 percent is warranted. No more than slight impairment is shown under the former Diagnostic Code 5257. Effective February 7, 2021, Diagnostic Code 5257 was revised. Under the revised rating criteria, a 20 percent disability rating is warranted for one of the following: a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribed a brace and/or assistive devise (e.g. cane(s), crutch(es), walker for ambulation; or b) 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), walker) or bracing for ambulation. A 20 percent disability rating is also warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. Note (1) to Diagnostic Code 5257 indicates that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) to Diagnostic Code 5257 notes that 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). As for the new rating criteria under Diagnostic Code 5257, the evidence of record fails to demonstrate an unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribed both an assistive device (e.g., cane(s), crutch(es), walker); or 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 a walker. Thus, higher rating is not warranted under the revised Diagnostic Code 5257. Additional limitation of function due to factors such as knee pain, weakness, incoordination, and fatigability must also be considered. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has made credible complaints of right knee pain, including as noted in VA outpatient treatment records. However, the Veteran has been able to perform right knee repetitive-use testing with little additional loss of function or range of motion, and the Veteran denied that he had flare-ups at the June 2021 VA knee examination. Strength testing of the right knee has been 5/5, and the Board observes that the June 2021 VA knee examiner specifically stated that the Veteran's right knee disability caused no occupational impact due to such factors as standing, walking, lifting, or sitting. In sum, there have been no findings or comments from any examiner indicating that the Veteran has a right knee disability picture approximating more limited range of motion that would warrant a higher evaluation. 38 C.F.R. §§ 4.40, 4.45, 4.59. As for other potentially applicable diagnostic codes, the evidence does not reflect right knee ankylosis, semilunar cartilage involvement, impairment of the tibia and fibula, or genu recurvatum. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263. In reaching these determinations, the Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, the evidence persuasively weighs against more favorable determinations. REASONS FOR REMAND 5. Service connection for headaches, to include as due to a chronic qualifying disability. 6. Service connection for IBS, to include as due to a chronic qualifying disability. 7. Service connection for fatigue, to include as due to a chronic qualifying disability. As noted in the Joint Motion, the January 2021 Board decision did not discuss 38 C.F.R. § 3.317, which allows for presumptive service connection for qualifying chronic disabilities that become manifest to a degree of 10 percent or more prior to December 31, 2026. Headaches, fatigue, and functional gastrointestinal disorders can be signs or symptoms of a medically unexplained chronic multisymptom illness (MUCMI) or undiagnosed illness. 38 C.F.R. § 3.317. As such, the Board finds that a medical opinion is needed as to whether the Veteran's headaches, fatigue, and gastrointestinal disorder may be considered a medically unexplained chronic multisymptom illness. 8. Service connection for left foot fungus. 9. Service connection for left foot hammertoe disability. 10. Entitlement to TDIU. Although a November 2021 supplemental statement of the case (SSOC) was issued to the Veteran for other matters, it appears that the RO has yet to adjudicate the issues of service connection for left foot fungus and service connection for left foot hammertoe disability, as directed in the January 2021 Board remand. As such, these issues are remanded for adjudication by the RO prior to consideration by the Board. As the issues on remand impact the issue of entitlement to a TDIU, the Board will defer adjudication of that issue pending review by the AOJ. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after February 10, 2022. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination for his headaches, gastrointestinal symptoms (IBS), and fatigue claims. The entire claims file must be made available to and be reviewed by the examiner. The examiner is asked to answer the following: Are any of the Veteran's headaches symptoms, IBS symptoms, and fatigue a) an undiagnosed illness, or b) a medically unexplained chronic multi-symptom illness defined by a cluster of signs or symptoms, including a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. (Continued on the next page) 4. Readjudicate all of the claims on appeal, including the issues of service connection for left foot fungus, service connection for left foot hammertoe disability, and entitlement to a TDIU. For any issues that remain in a denied status, issue to the Veteran and his representative a SSOC and allow the appropriate time period to respond. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Nelson 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.