Citation Nr: 1751474 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-09 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an increased rating for a low back disability in excess of 10 percent prior to October 25, 2011, and in excess of 20 percent since October 25, 2011. 2. Entitlement to an increased rating for a right knee disability in excess of 20 percent prior to June 7, 2010, and in excess of 30 percent since August 1, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Air Force from October 1972 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied ratings in excess of 10 percent for both the right knee and low back disabilities. Thereafter, the Veteran underwent a total right knee replacement. Accordingly, in September 2010, the RO assigned a 100 percent schedular rating, effective June 7, 2010 to July 31, 2011, under Diagnostic Code (DC) 5055 for the right knee disability. A 30 percent rating was assigned from August 1, 2011, forward. In December 2012, the RO increased the Veteran's rating for the low back disability to 20 percent, effective October 25, 2011. In February 2015, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for further development. There has been no contention advanced with regard to the AOJ's compliance with the remand instructions. Cf. Stegall v. West, 11 Vet. App. 268, 271 (1998) (conferring upon an appellant the right to substantial compliance with the Board's remand instructions). FINDINGS OF FACT 1. Prior to October 25, 2011, the Veteran's low back disability was manifested by limitation of motion; but without limitation of forward flexion to 60 degrees or less, combined range of motion of 120 degrees or less, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or neurologic impairment. 2. Since October 25, 2011, the Veteran's low back disability has been manifested by limitation of motion without ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine 30 degrees or less or neurologic impairment. 3. Prior to June 7, 2010, the Veteran's right knee disability was manifested by dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; however, it was not manifested by ankylosis, limitation of extension, limitation of flexion, or impairment of the tibia and fibula. 4. Since August 1, 2011, the Veteran's right knee disability has not been manifested by severe pain or weakness, ankylosis, limitation of extension, limitation of flexion, or impairment of the tibia and fibula. CONCLUSIONS OF LAW 1. Prior to October 25, 2011, the criteria for a rating in excess of 10 percent for a low back disability were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5237 (2017). 2. Since October 25, 2011, the criteria for a rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5237. 3. Prior to June 7, 2010, the criteria for a rating in excess of 20 percent for a right knee disability were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5256-5262 (2017). 4. Since August 1, 2011, the criteria for a rating in excess of 30 percent for a right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5055, 5256-5262 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4. 38 U.S.C.A. § 1155. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate DCs identify the various disabilities. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings may be assigned when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim is denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Id. § 4.7. Otherwise, the lower rating will be assigned. Id. After reviewing the evidence, the Board finds that additional staged ratings are not warranted because the Veteran's disability did not materially change during the periods on appeal. The Board also finds nothing in the record which would lead to the conclusion that the current evidence is not adequate for rating purposes. 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42; Schafrath v. Derwinski, 1 Vet App. 589 (1991). A. Low Back Disability Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a, DCs 5235-5242. The Veteran's low back disability is rated under DC 5237, which pertains to lumbosacral or cervical strains. There are no other potentially applicable DCs by which to consider the Veteran's low back disability. Under DC 5237, a 20 percent rating is warranted when forward flexion of the thoracolumbar spine is 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 when there are muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted when there is evidence of unfavorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine is 30 degrees or less. Id. Any associated objective neurologic abnormalities, such as lower extremity radiculopathy, are evaluated separately under an appropriate DC, as discussed later herein. 38 C.F.R. § 4.71a, General Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is 0 to 30 degrees; left and right lateral flexion and 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 herein are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Formula, Note 2. The Veteran was initially awarded a 10 percent rating for his back disability in a June 1993 rating decision based on findings of pain on motion. On October 28, 2009, the Veteran filed a request for an increased rating. Since then, the Veteran was afforded examinations in December 2009, December 2011, September 2015, and February 2017 to assess the severity of his back disability. On December 10, 2012, the RO granted a 20 percent rating, effective October 25, 2011, for the low back disability. The 20 percent rating has been in effect ever since. i. Prior to October 25, 2011 The December 2009 VA examination shows that prior to October 25, 2011, forward flexion was limited to, at worst, 90 degrees, with a combined range of motion of 230 degrees. There was no evidence of muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour, and no evidence of ankylosis or intervertebral disc syndrome (IVDS). Consideration of functional loss or impairment does not lead to a higher rating. 38 C.F.R. §§ 4.40, 4.45, 4.59; see Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011); Deluca v. Brown, 8 Vet. App. 202, 204-06 (1995). The Veteran's symptoms were accounted for and he was able to perform repetitive testing for both examinations, which revealed no pain during testing and no additional limitation of motion due to pain, incoordination, weakness or fatigability. Although the Veteran reported inability to bend or walk more than around his house during flare-ups, he noted that flare-ups only occurred twice per year for about 1 day each. The frequency and severity of these reported limitations do not rise to the level needed for a 20 percent rating. Indeed, the ranges of motion noted on the December 2009 examination are at least 30 and 110 degrees greater than what is needed for a 20 percent rating for limitation of flexion and combined range of motion, respectively. Other medical records do not show that the Veteran meets the required criteria for a higher rating. The Board recognizes that the Veteran believes his pain, stiffness, and aching warrant a higher rating, and understands that his low back disability has negatively impacted his quality of life; however, his current disability rating already accounts for pain and stiffness. See 38 C.F.R. § 4.71a, DC 5237(explaining that the General Formula ratings apply "[w]ith or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine..."). Without any symptoms or difficulties associated with the low back disability, there would be no basis for a zero (0) percent compensable rating, let alone the assigned 10 percent rating. For these reasons, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent prior to October 25, 2011. ii. Since October 25, 2011 Since October 25, 2011, the Veteran's low back disability has been rated as 20 percent disabling. In order to receive the next highest rating (40 percent), there must be evidence of unfavorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine limited to 30 degrees or less. The Veteran was provided additional examinations in December 2011, September 2015, and February 2017. Forward flexion during the December 2011 examination was 55 degrees (with pain at 40 degrees), and 50 degrees after repetitive use testing, with no change in the other measurements. Functional impairment was noted as pain and less movement than normal. The Veteran reported that during flare-ups he had to stop whatever he was doing and, if outside, use a cane. Forward flexion during the September 2015 examination was 60 degrees, with no pain on weight bearing, and no additional loss of function or limitation of motion after repetitive testing. Forward flexion during the February 2017 examination was 80 degrees (with no pain observed), no pain with weight bearing, and no additional loss of function or limitation of motion after repetitive use testing. The examiner also noted that true passive range of motion cannot be performed. See Correia v. McDonald, 28 Vet. App. 158 (2016). None of the examinations revealed ankylosis or forward flexion measurements that satisfy the criteria. Other medical records do not show that the Veteran meets the required criteria for a higher rating. The Board recognizes that the Veteran believes his pain, stiffness, and aching warrant a higher rating, and understands that his low back disability has negatively impacted his quality of life; however, his current disability rating already accounts for those symptoms. See 38 C.F.R. § 4.71a, DC 5237. For these reasons, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent since October 25, 2011. Because the preponderance of the evidence is against the claim, the benefit of the doubt provisions are inapplicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 56. Accordingly, the Veteran's request for a higher rating is denied. iii. Additional Symptoms While the record indicates complaints of pain and tingling radiating down the right leg, and occasionally the left, the evidence shows that those complaints are not related to the Veteran's back condition. Following the December 2011 examination, a medical opinion was obtained in September 2012 to determine if the radiculopathy noted during the December 2011 examination was related to his service-connected low back disability. The September 2012 physician opined that it was less likely than not that the Veteran has radiculopathy related to his lumbar strain or to his mild facet hypertrophy (diagnosed during December 2011 examination). The physician reasoned: For a lumbar spine condition to cause radiculopathy, there must be some type of structural impingement or disruption of the lumbar-sacral nerve roots. Strain and facet hypertrophy are not conditions that can cause this type of nerve root compromise. The record furthermore shows no evidence for other structural lesions of the lumbar spine causing nerve root disruption. Although some treatment reports from Dr. [B.M.] list 'herniated disk lumbar' among other conditions in the assessment, the reports (e.g., 6/7/11) state that 'x-rays of the low back showed no degenerative disk disease but fact [sic] arthropathy.' In February 2017, a different VA examiner added: Although Veteran has complaints of radiation of the back pain into the legs with numbness and tingling, there is no evidence of Lumbar radiculopathy. Multiple MRIs in 2014, 2015 and most recent Dec 2016 have all shown no anatomic findings that could cause a radiculopathy, therefore there is no pathophysiologic mechanism by which the Veteran's subjective symptoms could be due to a true radiculopathy. Additionally multiple medical providers including back specialists have found no lumbar radiculopathy and no anatomic mechanism for radiculopathy. There are no findings on physical exam attributable to lumbar radiculopathy. The Board finds the September 2012 and February 2017 medical opinions to be highly probative of whether the Veteran has additionally related symptoms or pathology that would provide the basis for the assignment of a separate rating based on another DC. The examiners reviewed the Veteran's claims file, took into account his subjective and objective medical history, and rendered clear opinions with supporting rationales. Furthermore, the VA examiners' opinions are supported by one of the Veteran's private physicians. See Tucson Orthopaedic Institute Report , p. 3 (Jan. 4, 2017) ("His MRI demonstrate multiple levels of facet degenerative changes but there is no foraminal stenosis that would correlate with his leg symptoms. I discussed this with the patient."). Thus, while the Veteran is competent to report observable symptoms, his lay statements are outweighed by the competent and probative objective medical testing, including neurologic testing. For these reasons, the Board finds that there are no additionally related symptoms or pathology that would provide the basis for the assignment of a separate rating based on another DC. B. Right Knee Disability Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Under DC 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under DC 5003. 38 C.F.R. § 4.71a (2017). A separate rating could also be warranted under 38 C.F.R. § 4.59, based on x-ray findings of arthritis with painful motion. See VAOPGCPREC 9-98; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04. In this case, the Veteran seeks higher rating for his right knee disability for two periods: (i) prior to June 7, 2010, at which time he was assigned a 20 percent rating under DC 5258 (for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint); and (ii) since August 1, 2011, during which time he has received a 30 percent rating under DC 5055. There are multiple DCs which apply to knee disabilities. DC 5256, which evaluates ankylosis of the knee, assigns a 30 percent rating for a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is assigned when there is ankylosis of the knee in flexion between 10 and 20 degrees. Under DC 5257, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. Throughout this period, there was no evidence of ankylosis, recurrent subluxation or lateral instability in the right knee; therefore, DCs 5256 and 5257 are inapplicable. Also, separate ratings under DC 5258 and DCs 5003 (degenerative arthritis) /5010 (traumatic arthritis) are not appropriate because DC 5258 already contemplates manifestations of limited motion including locking as a result of dislocated cartilage. VAOGCPREC 9-98 (Aug. 14, 1998). Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating for limitation of flexion of the leg to 45 degrees; a 20 percent rating for limitation of flexion of the leg to 30 degrees; and a 30 percent rating for limitation of flexion of the leg to 15 degrees. Before June 7, 2010, the Veteran's limitation of flexion was, at worst, 125 degrees (to include additional limitation of motion following repetitive motion. See December 2009 VA Exam. Since August 1, 2011, the Veteran's limitation of flexion was, at worst, 110 degrees. See September 2015 VA Exam; see also December 2011 VA Exam (noting right knee flexion to 120 degrees, with pain at 110, and no change after repetitive testing); February 2017 VA Exam (noting flexion to 115 degrees). Thus, throughout the periods on appeal, the Veteran's limitation of flexion did not come close to the criteria for a noncompensable rating. As such, an additional rating under DC 5260 is not warranted. DC 5261 provides for a 10 percent rating where extension is limited to 10 degrees, 20 percent rating where extension is limited to 15 degrees, 30 percent rating where extension is limited to 20 degrees, 40 percent rating where extension is limited to 30 degrees, and 50 percent rating where extension is limited to 45 degrees. Here, the Veteran's extension was never higher than zero (0) degrees (i.e., no limitation). See December 2009 VA Exam; December 2011 VA Exam; September 2015 VA Exam; February 2017 VA Exam. Therefore, an additional rating under DC 5261 is not warranted. The February 2017 examiner also noted that for both the right and left knees that there was there was no pain with non-weight bearing (at rest). There was pain with passive range of motion that does not result in or cause functional loss. There was pain with weight bearing that the examiner indicated caused functional loss described as decreased endurance for prolonged walking, standing, bending. See Correia v. McDonald, 28 Vet. App. 158 (2016). DC 5262, which pertains to malunion of the tibia or fibula warrant various ratings. However, there has not been any indication of impairment of the tibia and fibula as to warrant a rating under DC 5262. Finally, DC 5055 provides staged ratings following prosthetic replacement of the knee joint. A total 100 percent rating is assigned for one year following implantation of prosthesis. A minimum 30 percent evaluation is granted for knee replacement, thereafter. A 60 percent evaluation is assigned with chronic residuals consisting of severe painful motion or weakness in the affected extremity. In this case, the Veteran was assigned a 100 percent rating for his right knee replacement starting on June 7, 2010, until July 30, 2011. Thereafter, he was assigned a 30 percent rating. The evidence since August 1, 2011, does not suggest that the Veteran suffers severe painful motion or weakness in the right knee. The most recent knee examinations specifically note that the Veteran only has mild to moderate intermittent knee pain. See VA Exam, p.11 (Feb. 21, 2017); VA Exam p. 2 (Sept. 4, 2015) ("Veteran reports he has intermittent episodes of pain in the right knee...Describes pain throbbing with intermittent sharpness, 5-6/10"). Also, the Veteran is able to walk 1.5 miles. See VA Exam, p. 2, 13 (Feb. 21, 2017). This does not satisfy the required level of pain or weakness necessary for a 60 percent rating. Other medical records, including from private physicians, do not show that the Veteran meets the required criteria for a higher rating. In sum, there is no basis for a higher schedular evaluation for the Veteran's service-connected right knee disability. In so finding, the Board notes that the Veteran is competent to report his symptoms; however, his lay statements are outweighed by competent and probative medical evidence that evaluates the extent of the his right knee impairment based on objective data coupled with the lay complaints. In this regard, VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints, and to provide the requisite information for an evaluation of the disability under the rating schedule. For these reasons, greater evidentiary weight is placed on the VA examination findings in regard to the type and degree of impairment. In conclusion, the preponderance of the evidence is against the Veteran's claim for an increased rating for the aforementioned periods. Because the preponderance of the evidence is against the claim, the benefit of the doubt provisions are inapplicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 56. Accordingly, the Veteran's request for a higher rating is denied. ORDER Entitlement to a disability rating for a low back disability in excess of 10 percent prior to October 25, 2011, is denied. Entitlement to a disability rating for a low back disability in excess of 20 percent since October 25, 2011, is denied. Entitlement to a disability rating for a right knee disability in excess of 20 percent prior to June 7, 2010, is denied. Entitlement to a disability rating for a right knee disability in excess of 30 percent since August 1, 2011, is denied. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs