Citation Nr: 1805407 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 13-15 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a back disability prior to April 26, 2017, and in excess of 20 percent thereafter. 2. Entitlement to an initial rating in excess of 10 percent for a right knee disability. 3. Entitlement to an initial rating in excess of 10 percent for a left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Kass, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2007 to November 2011. This matter comes before the Board of Veterans' Appeals (Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Subsequently, jurisdiction of the appeal was transferred to the RO in Waco, Texas. In April 2015 and January 2017, the Board remanded this case for further development. The Board finds that there has been substantial compliance with these prior remands. In July 2017, the RO increased the Veteran's back disability rating from 10 percent to 20 percent disabling effective April 26, 2017. The Veteran is presumed to be seeking even higher ratings. FINDINGS OF FACT 1. Prior to April 26, 2017, the Veteran's back disability manifested with flexion to 90 degrees at worst. 2. From April 26, 2017, the Veteran's back disability manifested with flexion to 50 degrees 3. For the entire period on appeal, the Veteran's right knee disability was at worst, manifested by extension to 0 degrees with no objective evidence of painful motion. 4. For the entire period on appeal, the Veteran's left knee disability manifested was at worst, manifested by extension to 0 degrees with no objective evidence of painful motion. CONCLUSIONS OF LAW 1. Prior to April 26, 2017, the criteria for a rating in excess of 10 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5237 2. From April 26, 2017, the criteria for a rating in excess of 20 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2017). 3. During the entire period on appeal, the criteria for a rating in excess of 10 percent for the Veteran's right knee disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5261 (2017). 4. During the entire period on appeal, the criteria for a rating in excess of 10 percent for the Veteran's left knee disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5261 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA satisfied the duty to notify in this appeal, and neither the Veteran nor his representative has asserted any error as to this duty. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). With regard to the duty to assist, the relevant records have been obtained. The Veteran was provided several VA examination regarding his claim in February 2012, June 2015, and April 2017. The Board finds these examinations to be adequate upon which to adjudicate the merits of this appeal. II. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned specific diagnostic codes. 38 U.S.C.§1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 ; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 . Back Disability The Veteran's back disability was rated as 10 percent disabling prior to April 26, 2017, under DC 5237 for a lumbar strain, and 20 percent disabling thereafter under DC 5242 for degenerative arthritis of the lumbar spine. 38 C.F.R. § 4.71a, DCs 5237, 5242. Diagnostic Codes 5235 through 5242 are evaluated under the General Rating Formula for Diseases and Injuries of the Spine, where ratings are assigned as follows: 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 forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. On review of the evidence, the Board finds that a 10 percent rating is appropriate prior to April 26, 2017. During this time, his flexion was limited to 90 degrees at worst. See June 2015 VA examination report. The record showed some functional loss in the form of pain on movement. The Veteran also had localized tenderness bilaterally over the paralumbar muscles. However, the functional loss did not demonstrate flexion limited to 60 degrees, which is required for a higher rating. There was also not muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis reversed lordosis, or abnormal kyphosis. From April 26, 2017, a 20 percent rating is appropriate. At his most recent examination, the Veteran's forward flexion was to 50 degrees, extension to 25 degrees, bilateral flexion to 30 degrees, and bilateral rotation to 30 degrees. Although he demonstrated a more limited range of motion, the Veteran did not report flare-ups or functional loss. The examiner explained that the Veteran's lumbar strain naturally progressed to degenerative arthritis. The Veteran reported sharp lower back pain and muscles when he bent or lifted heavy objects, pain from prolonged walking or standing, and pain at a 7/10 most days. The record does not show that his flexion was limited to 30 degrees, which is required for a higher rating. Accordingly, there is no period during which the preponderance of the evidence shows that a higher rating is warranted for the low back disability. In this regard, the Board has fully considered the Veteran's lay testimony and the medical evidence of record. The Board has also considered the lay and medical evidence, to include all evidence of functional loss, and finds that to not support ratings in excess of those currently granted. The evidence, however, does not provide a basis for finding that the Veteran's functional limitations are greater than those contemplated by the current rating. In this regard, the Veteran reported at his April 2017 VA examination that he did not have flare-ups. Although the Veteran has reported that his back would hurt when he was running and he would need to stop and rest for an hour before the pain would dissipate, these same statements indicate that he is functionally capable of running; the Veteran's statements indicate that this task resulted in pain but not functional limitation. There is also no showing of additional functional loss due to DeLuca factors to warrant a higher rating. The Board finds that the evidence of record indicates that the Veteran's functional range of motion remains is greater than that which would support a higher rating during any period under appeal. The Board remanded previously to ensure that the claims file contained an examination that fully considered functional impairment and contained all necessary testing in this regard. The Board finds that the April 2017 VA examination contained this information, but did not provide evidence in support of greater ratings pursuant to Correia than already assigned. Further, the evidence does not reflect the basis for a higher rating under any other basis such as ankylosis or associated neurologic abnormalities. The preponderance of the evidence does not show that a higher rating is warranted. For these reasons, a higher rating is not warranted. Right and Left Knee Disabilities The Veteran's right and left knee disabilities are rated as 10 percent disabling under DC 5261 for tendonitis. Under DC 5261, a 10 percent rating is assigned when extension is limited to 10 degrees. A 20 percent rating is assigned when extension is limited to 15 degrees. A 30 percent rating is assigned when extension limited to 20 degrees. A 40 percent rating is assigned when extension is limited to 30 degrees. A 50 percent rating is assigned for limitation of extension to 45 degrees. See 38 C.F.R. § 4.71a, DC 5261. The normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II (2017). The record shows the Veteran's extension was 0 degrees in both knees throughout the appeal period. In February 2012, a VA examiner diagnosed the Veteran with bilateral knee tendonitis. There was no objective evidence of painful motion on any of the range of motion measurements. However, there was pain on palpation. The Veteran reported that his knees would flare-up three times a week for several hours with increased pain and stiffness. In June 2015, a VA examiner found that pain caused functional loss. In April 2017, his extension was to 0 degrees, and there was no evidence of crepitus, pain on weight bearing, and localized tenderness. The examiner found that less movement that normal contributed to the Veteran's disability. Based on this body of evidence, the Board finds that a 10 percent rating is warranted under DC 5261 because his extension was to 0 degrees. Although the Veteran reported using a home exercise program and Advil to manage his knee pain, his pain did not result in functional loss that approximated limitation to 15 degrees, which is required for the next higher rating. Therefore, a 10 percent disability rating is warranted for both knees during the appeal period. The Board remanded previously to ensure that the claims file contained an examination that fully considered functional impairment and contained all necessary testing in this regard. The Board finds that the April 2017 VA examination contained this information, but did not provide evidence in support of greater ratings pursuant to Correia than already assigned. ORDER Prior to April 26, 2017, entitlement to a rating in excess of 10 percent for a lumbar strain is denied. From April 26, 2017, entitlement to a rating in excess of 20 percent for lumbar spine degenerative disc disease is denied. A rating in excess of 10 percent for a right knee disability is denied. A rating in excess of 10 percent for a left knee disability is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs