Citation Nr: 1753895 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 10-02 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for left knee arthritis. 2. Entitlement to a disability rating in excess of 10 percent for right knee arthritis. 3. Entitlement to a disability rating in excess of 10 percent for a lumbar spine disability prior to April 29, 2017, and in excess of 20 percent therefrom. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1973 to October 1982, January to May 1984, April 2003 to March 2006, and May 2006 to April 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. These matters were previously before the Board in December 2014, March 2016, and March 2017. On each occasion, they were remanded for additional development. That development having been completed, the case has been returned to the Board for appellate review. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's bilateral knee disability has been manifested by subjective complaints of pain. Objectively, the Veteran's right knee disability was manifested by range of motion from 0 to no worse than 110 degrees in right leg flexion, and 0 to no worse than 100 degrees in left leg flexion. There has been no showing of incapacitating exacerbations of arthritic symptoms. 2. For the entire appeal period, the Veteran's lumbar disability has been manifested by painful motion, and limited range of motion. At no time during the appeal period has the Veteran's lower back disability been manifested by ankylosis, or forward flexion of 15 degrees or less. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010, 5260, 5261 (2017). 2. The criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010, 5260, 5261 (2017). 3. The criteria for a rating of 20 percent for service-connected lower back disability, but no higher, have been met for the entire appeal period. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5010, 5242-43 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vasquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has sent letters the Veteran throughout the appeal period which set out the type of evidence needed to substantiate the claims. The Board has also satisfied its duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. 3.159. VA has obtained all identified and available treatment records for the Veteran. In addition, the Veteran has undergone VA examinations in connection with her claims. The Board finds the examinations adequate in the aggregate, because they have included reviews of the medical file, interviews of the Veteran, and examination findings supported by rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of her appeal. The Veteran has not identified any outstanding evidence that needs to be obtained. Entitlement to a disability rating in excess of 10 percent for bilateral knee disabilities Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. A rating granted following an initial award of service connection may be "staged," that is, comprised of successive ratings reflecting variations in the disability's severity since the date of service connection. Separate ratings can be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. Ap. 119 (1999). The Veteran's bilateral knee disability has been rated under DC 5010, which deals with traumatic arthritis. That code directs the rating agency to refer to the rating scheme for degenerative arthritis, which provides for a 10 percent rating for arthritis where x-ray evidence confirms the involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent rating for arthritis where x-ray evidence shows involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Disorders of the knee may also be rated based on limitation of motion under DCs 5260 and 5261. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. In this regard, a normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. A limitation of leg flexion allows for a 10 percent evaluation when it is limited to 45 degrees and a 20 percent evaluation when it is limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A limitation of leg extension is assigned a 10 percent evaluation when it is limited to 10 degrees and a 20 percent evaluation when it is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Separate ratings for knee disabilities may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04 (2004); 69 Fed. Reg. 59,990 (2004); 38 C.F.R. § 4.14. Under Diagnostic Code 5259, a 10 percent rating can be assigned for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a. Under Diagnostic Code 5258, a 20 percent evaluation can be assigned for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. Id. Recurrent subluxation or lateral instability can be rated as slight (10 percent), moderate (20 percent), or severe (30 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5257. Evaluations for knee impairment can also be assigned based on ankylosis or genu recurvatum, but as the Veteran has not at any time been found to have ankylosis or genu recurvatum, these diagnostic codes are not applicable and will not be further discussed. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5263 (2016). The Veteran's documented knee disabilities are longstanding. VA treatment records from late 2008 and early 2009 show complaints of chronic knee pain, with treatment records from May 2009 revealing a complaint of the Veteran's right knee "giving out," resulting in a fall. November 2009 VA treatment notes indicate limited flexion and extension of the left knee, and December 2010 records show pain and stiffness in both knees, exacerbated by prolonged standing or walking. The record also reveals periodic use of a knee brace to manage symptoms. However, VA treatment notes generally characterize the Veteran's gait as normal and her knees as stable; for instance, May 2009 notes show that despite complaints of knee pain, the Veteran's ambulation was "straight and even." The Veteran has been afforded several VA knee examinations during the course of the instant appeal. The first, conducted in October 2009, indicate complaints of bilateral knee pain. However, the Veteran confirmed she was able to walk 1-3 miles at a time, to stand for 15-30 minutes, and used braces only intermittently and occasionally, while denying instability in either knee. Her gait was normal, and she evinced no tenderness to palpation. There was a degree of right knee swelling on examination. The Veteran did complain of weekly "flare-ups" afflicting either knee, generally precipitated by activity or prolonged standing. Range of motion testing showed left knee flexion to 130 degrees, left knee extension to 0 degrees, right knee flexion to 140 degrees, and right knee extension to 0 degrees, all without any objective evidence of pain. The record shows ongoing complaints of knee pain, exacerbated with activity; for instance, VA treatment notes from October 2010 show the Veteran was requesting bilateral knee braces, while December 2010 treatment notes indicate the Veteran reported significant alteration in her gait over the preceding two years due to knee pain. These records reveal a degree of crepitus, but indicate the Veteran's knees neither locked nor gave way. By June 2011, VA treatment records showed the Veteran's knee pain was well controlled with prescription medication; the record does not show any marked change in the Veteran's knee condition over the course of the appeal period, until March 2015, when she underwent another VA knee examination. At that examination, the Veteran demonstrated right knee flexion to 110 degrees, right knee extension to 0 degrees, left knee flexion to 100 degrees, and left knee extension to 0 degrees. There was evidence of pain with weight bearing, and a degree of right knee tenderness. There was no additional loss of range of motion after three repetitions of testing. There was no muscle atrophy in the lower extremities, and no history of lateral instability or recurrent effusion. Based on the Veteran's reporting, the examiner acknowledged that pain significantly limits the Veteran's functional ability with repeated use over time, but declined to describe the limitation in terms of loss of range of motion, stating that to do so would require speculation. Another VA knee examination was conducted in June 2016. There, the Veteran demonstrated right knee flexion to 120 degrees, right knee extension to 0 degrees, left knee flexion to 110 degrees, and left knee extension to 0 degrees, with a degree of pain on flexion. There was no evidence of pain with weight bearing, and normal strength in both lower extremities, with no instability in any plane, and normal gait without the use of any assistive device. A final VA knee examination was conducted in April 2017. Right knee flexion was to 130 degrees, right knee extension was to 0, left knee flexion was to 110 degrees, and left knee extension was to 0. Results were reproducible after three repetitions of testing. There was no evidence of pain with weight bearing, and full strength in the bilateral lower extremities. Further, the Veteran demonstrated a degree of instability of station and disturbance of locomotion due to knee pain. The Board notes that at no time during the appeal period has the Veteran demonstrated a compensable degree of limitation in knee range of motion in either knee. Her current 10 percent rating has been awarded based on diagnostic imaging confirming arthritis and painful motion. A 20 percent rating under DC 5003 is inappropriate, as there has never been any showing of altogether incapacitating exacerbations; for instance, the record does not show emergency room visits due to debilitating knee pain, or protracted periods of incapacity. Rather, it shows consistent complaints of knee pain, which symptom is already contemplated in the 10 percent rating assigned. Application of DCs 5260 or 5261 are likewise to no avail, even in contemplation of the functional loss she experiences due to pain and other subjective symptoms. DeLuca, 8 Vet. App. 202. Again, there has been no demonstrated limitation of range of motion to a compensable degree. While the Board finds the 10 percent rating already assigned is appropriate based on functional loss under Deluca, there is no basis in the record for a higher rating. Additional compensation for functional loss under sections 4.40, 4.45, and 4.59 is not warranted. The Board has considered the statements of the Veteran as to the severity of her knee disabilities. She is competent to report symptoms she is able to observe through use of the senses. However, in evaluating a claim for an increased schedular disability rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). While the Veteran is competent to report symptoms including pain and functional limitation, the training and experience of medical personnel makes the medical findings found in the June 2016 and April 2017 examination reports more probative as to the extent of the disability. In sum, the Board finds that entitlement to an evaluation in excess of 10 percent for either of the Veteran's knee disabilities is not warranted. Entitlement to a disability rating in excess of 10 percent for a lumbar spine disability prior to April 29, 2017, and in excess of 20 percent therefrom Back disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), specified in 38 C.F.R. § 4.71a. If there is intervertebral disc disease, the rating criteria specified in the Formula for Rating Intervertebral Disk Syndrome Based on Incapacitating Episodes may be applicable. In this case, the Veteran's back disability has been evaluated under Diagnostic Code (DC) 5242, for degenerative arthritis of the spine. The General Rating Formula provides for a 10 percent evaluation when back disability results in forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. Back disability warrants a 20 percent rating 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 favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less. The only criterion which warrants an evaluation in excess of 40 percent for limitation of motion of the thoracolumbar spine is where there is unfavorable ankylosis of the thoracic spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankyloses of the entire spine warrants a 100 percent rating. The General Formula directs that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 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 Rating Schedule allows evaluation of intervertebral disc syndrome (IVDS) based on incapacitating episodes. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms that requires bed rest and treatment by a physician. 38 C.F.R. § 4.71a, Note (1). As the record does not reflect any episodes of prescribed bed rest and treatment having a total duration of at least two weeks during any twelve month period within the current appeal period, an evaluation higher than 10 percent is unavailable under the formula for rating IVDS based on incapacitating episodes, and will not be discussed further. Back disability is, as noted above, rated on limitation of motion, or may be rated based on subjective complaints of pain, if there is objective confirmation of arthritis on radiologic examination. DCs 5003, 5010. A 10 percent evaluation is the maximum schedular evaluation available for arthritis of one joint or group of joints under DCs 5003 or 5010, so application of these DCs would not result in a more favorable evaluation for the Veteran. No further discussion of those DCs is required. When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The diagnostic codes pertaining to range of motion do not subsume §§ 4.40 and 4.45. The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The record reflects longstanding complaints of chronic lower back pain. However, at April 2008 and October 2009 VA examinations, the Veteran's posture and gait were noted to be within normal limits. Nevertheless, by September 2012, the record shows the Veteran had been advised to use a back brace periodically by providers. VA treatment notes from December of that year show complaints of curtailed activities due to back pain. The Veteran underwent a VA examination of her lumbar spine in March 2015, where she demonstrated forward flexion to 80 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees. The examiner stated that range of motion limitation, in itself, did not contribute to functional loss. There was, however, evidence of pain with weight bearing, as well as localized tenderness affecting the lumbosacral spine and right paraspinal muscles, but no spasm. There was no evidence of loss of function or range of motion after three repetitions of testing. The examiner opined that pain would cause a degree of functional loss during flare-ups or with repeated use over time, but did not describe the degree of additional limitation in terms of range of motion. The Veteran underwent a subsequent VA lumbar examination in June 2016. She demonstrated forward flexion to 80 degrees, extension to 10 degrees, right and left lateral flexion to 25 degrees, and right and left lateral rotation to 25 degrees. There was no evidence of pain with weight bearing, but there was a degree of localized tenderness to palpation of the lumbar spine. There was no loss of range of motion after three repetitions of testing, no guarding, no spasm, full strength in the bilateral lower extremities, and normal gait. A final VA lumbar examination was conducted in April 2017. The Veteran demonstrated forward flexion to 60 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, and right and left lateral rotation to 25 degrees. She complained of pain on movement, and evinced tenderness to palpation. There was additional loss of range of motion after three repetitions of testing. As the evidence set forth demonstrates, the Veteran did not demonstrate the requisite range of motion limitation for a 20 percent rating until her most recent VA examination in April 2017. However, based on her consistent reports of pain on motion, and the supportive evidence of the same, including the ordering of a back brace and periodically observed gait disturbance, the Board finds it warranted to assign a 20 percent rating for the earlier portion of the appeal period, based on the aforementioned Deluca factors. The Veteran's pain complaints during this period are credible, and they find support in the other evidence of record. There is no significant evidence that supports assignment of a higher rating, however, for any portion of the period on appeal. Although the April 2017 VA examination results reflect loss of range of motion that supports assignment of a 20 percent disability rating, it barely does so. Further, despite losing additional range of motion after three repetitions of testing, the Veteran's tested range of motion did not approach what is required for a 30 percent rating. Moreover, there has been no showing of ankylosis at any level of the Veteran's spine. Additionally, the Veteran's functional loss is already contemplated in the 20 percent rating assigned. As such, the Board finds assignment of a rating in excess of 20 percent unwarranted for any portion of the appeal period. ORDER Entitlement to a rating in excess of 10 percent for a right knee disability is denied. Entitlement to a rating in excess of 10 percent for a left knee disability is denied. Entitlement to a rating of 20 percent, but no higher, for the period prior to April 29, 2017, for a lumbar spine disability is granted. Entitlement to a rating greater than 20 percent, for the period beginning on April 29, 2017, for a lumbar spine disability is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs