Citation Nr: 22017369 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 15-19 175 DATE: March 24, 2022 ORDER Entitlement to an increased rating of 40 percent, but no higher, prior to October 8, 2019 for degenerative joint disease with intervertebral disc syndrome and disc degeneration with bulging and compression of the nerve from the spine, myositis, lumbar paravertebral muscles, traumatic, chronic L5-S1 herniated nucleus pulposus (lumbar spine DJD) is granted. Entitlement to an increased rating in excess of 40 percent from October 8, 2019 for lumbar spine DJD is denied. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDING OF FACT Throughout the appeal period, after resolving reasonable doubt in his favor, the Veteran's lumbar spine DJD manifested in forward flexion limited to 25 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 40 percent, but no higher, prior to October 8, 2019 for lumbar spine DJD have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5243 (2021). 2. The criteria for entitlement to an increased rating in excess of 40 percent from October 8, 2019 for lumbar spine DJD have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5243 (2021). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from November 1977 to November 1981 and January 1991 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2014, October 2014, and March 2015 rating decisions by the Department of Veterans Affairs (VA). This case was remanded in August 2018 for further development. In June 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. After the Board's remand, the issues of service connection for gastroesophageal reflux disease (GERD) and bilateral lower extremity peripheral neuropathy were granted. See December 2020 and November 2021 rating decisions. Because those decisions represent a full grant of the benefits sought, the issues are no longer on appeal. Entitlement to an increased rating in excess of 20 percent prior to October 8, 2019 and in excess of 40 percent thereafter for lumbar spine DJD. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. If the evidence is not in approximate balance or nearly equal, the claim is to be denied. See Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, there must be consideration of functional loss caused by factors that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) ("functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor...that actually limited motion" (emphasis removed)). Nonetheless, even when the 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 (musculoskeletal system) or § 4.73 (muscle injury); 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). The provisions of 38 C.F.R. § 4.59 acknowledge that a claimant's disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Code. However, pain alone does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 38-39 (2011). The Veteran is currently rated pursuant to Code 5243 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 20 percent rating is warranted for 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 not greater than 120 degrees; or, 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 rating is warranted for flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. "Unfavorable ankylosis" is defined, in pertinent part, as "a condition in which...the entire thoracolumbar spine or the entire 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." See id., Note (5). The Board notes that remand pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016) is not necessary because the Veteran must show unfavorable ankylosis to be entitled to an increased rating in excess of 40 percent. The considerations in Correia do not apply to the symptoms that must be shown for unfavorable ankylosis, such as restricted opening of the mouth or a limited line of vision, and thus remand for a new examination would provide little probative value. The record does not reflect, nor has the Veteran stated, that he has any of the requisite symptoms for a finding of unfavorable ankylosis. Accordingly, the Board finds that remand for a new VA examination is unnecessary. During his October 2019 VA examination, the Veteran reported constant pain and flare-ups that resulted in him feeling "almost stuck in place due to pain." The examiner opined that the Veteran's forward flexion was limited to 25 degrees. March 2013 and February 2015 examinations are not compliant with Correia or Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017); as a result, the range of motion findings therein are given no probative weight. The Veteran reported pain and similar symptoms throughout the appeal period. Given that there are no probative range of motion measurements during the earlier part of the appeal period, the Board will resolve reasonable doubt and find that the Veteran's forward flexion was limited to 25 degrees during the entire appeal period. Thus, a 40 percent rating is warranted prior to October 8, 2019. To warrant a disability rating in excess of 40 percent, the evidence would need to show unfavorable ankylosis of the thoracolumbar spine or the entire spine. There is no evidence in the record that the Veteran suffers from the symptoms associated with unfavorable ankylosis. Accordingly, an increased rating in excess of 40 percent must be denied. The Board notes that the Veteran has been diagnosed with intervertebral disc syndrome (IVDS). See, e.g., October 2019 VA back examination. IVDS can be rated pursuant to a separate formula, the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). 38 C.F.R. § 4.71a, Code 5243. In order to obtain an increased rating in excess of 40 percent, the Veteran would need to demonstrate incapacitating episodes having a total duration of at least six weeks during the past 12 months. For purposes of this formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Code 5243, IVDS Formula, Note (1). To the extent that the evidence may reflect that the Veteran had any incapacitating episodes at all, they were for a duration of less than six weeks. See March 2013 VA back examination. Thus, a higher rating is not warranted pursuant to the IVDS Formula and the Veteran is appropriately rated pursuant to the General Formula. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability. In October 2019, a VA examiner opined it was less likely than not that the Veteran's neck disabilities were caused or aggravated by his service-connected lumbar spine disability. The opinion is inadequate because it relied on medical literature without discussion of the specific facts of the Veteran's case. Thus, remand for a new opinion is necessary. 2. Entitlement to service connection for a right knee disability. The Board remanded this matter previously for direct and secondary service connection opinions. In October 2019 and November 2021, VA examiners opined it was less likely than not that the Veteran's right knee disability was related to service. However, the October 2019 examiner simply restated the Veteran's medical history and the November 2021 examiner improperly discounted the Veteran's credible report of right knee pain beginning during service. As a result, the opinions are inadequate and remand for a new opinion is necessary. The October 2019 and November 2021 VA examiners also opined it was less likely than not that the Veteran's right knee disability was caused or aggravated by his service-connected lumbar spine disability. However, the October 2019 examiner again merely restated a medical history and made a conclusory opinion. The November 2021 examiner relied either on medical literature without discussion of the facts of the Veteran's case or simply relied on the absence of evidence. Thus, all the opinions are inadequate and remand for new opinions is necessary. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from November 2021 to the present. 2. After the development in the first directive is completed, the AOJ should arrange for a VA examination to determine the nature and likely cause of any cervical spine disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: For each cervical spine disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran's service-connected lumbar spine disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner may not rely solely on medical literature without discussion of the Veteran's specific history, nor may the examiner rely solely on the absence of evidence in medical records without providing a proper foundation as to why such absence tends to disprove a relation to service. The examiner must discuss the Veteran's assertion that his neck problems are due to the effects on his posture and how he walks and sits. 3. After the development in the first directive is completed, the AOJ should arrange for a VA examination to determine the nature and likely cause of any right knee disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) For each right knee disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran's service-connected lumbar spine disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner may not rely solely on medical literature without discussion of the Veteran's specific history, nor may the examiner rely solely on the absence of evidence in medical records without providing a proper foundation as to why such absence tends to disprove a relation to service. (b.) For each right knee disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. The examiner must discuss the Veteran's credible assertion of right knee pain since service. The examiner may not rely solely on the absence of evidence in medical records without providing a proper foundation as to why such absence tends to disprove a relation to service. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.