Citation Nr: 1806308 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-03 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine with intervertebral disc syndrome. 2. Entitlement to an initial disability rating in excess of 10 percent for left knee chondromalacia with arthritis. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel INTRODUCTION The Veteran served on active duty from November 1970 to November 1992, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In March 2017, the Board remanded the claims for further development. They are now returned to the Board. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's degenerative disc disease of the lumbar spine with intervertebral disc syndrome has been manifested by forward flexion of greater than 30 degrees, without ankylosis, and without incapacitating episodes of intervertebral disc syndrome lasting at least 4 weeks. 2. Throughout the appeal period, the Veteran's left knee chondromalacia with arthritis has been manifested by at worst flexion to 100 degrees with normal extension accompanied by pain; ankylosis, recurrent subluxation or lateral instability, dislocated cartilage with frequent episodes of 'locking', pain and effusion into the joint and impairment of the tibia and fibula were not shown. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine with intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 (2017). 2. The criteria for an initial disability rating in excess of 10 percent for left knee chondromalacia with arthritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two ratings apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where a Veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . " Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2013); see also 38 C.F.R. §§ 4.45, 4.59 (2016). The United States Court of Appeals for Veterans Claims (Court) clarified that 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. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). i. Spine The Veteran's service-connected lumbar degenerative disc disease with intervertebral disc syndrome is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula provides a 20 percent disability rating 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. The General Rating Formula provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, 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 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 is 240 degrees for the thoracolumbar spine. 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. Id. Alternatively, intervertebral disc syndrome (IVDS) can be rated under Diagnostic Code 5243 and the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Under this Formula, a 20 percent disability rating is assigned for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, 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. In his claim for an increased rating filed in February 2010, the Veteran indicated his back flared-up and he got spasms and steroid injections every six months. He indicated being unable to lift anything over fifteen pounds and having difficulty walking or standing for any period of time. At a VA examination in March 2010, the Veteran indicated he could only walk a 1/2 mile on average. He reported he had experienced falls due to his spine condition. He reported stiffness, spasms, decreased motion, paresthesia and numbness. He did not report bowel or bladder problems. He indicated being unable to stand, walk or sit for any period of time and that during flare-ups, he could not lift, bend or squat. He indicated being incapacitated over 5 days in July 2009 and that bed rest was recommended. The Veteran's posture was normal and he walked with a normal gait. Walking was steady. Muscle spasm was absent and no guarding of movement or tenderness of the spine was noted. Ankylosis was not identified. Range of motion was flexion to 60 degrees, extension to 30 degrees, right and left lateral flexion to 20 degrees and right and left rotation to 20 degrees. There was no additional degree of limitation after repetitive motion. In his February 2012 VA Form 9, the Veteran indicated he suffered with back pain every day and it affected all aspects of his life. He stated that his back condition limited his ability to sit, stand or lay down for extended periods of time. He indicated he was in extreme pain during the VA examination, although the examiner did not put that information in his report. Following a remand by the Board, the Veteran underwent another VA examination in March 2017. X-rays showed mild disc space narrowing and degenerative endplate changes at all lumbar levels. Advanced bilateral facet spondylosis was identified, most prominent from L-4 to S-1. No fracture or subluxation was demonstrated. The Veteran reported he was stiff and had pain when bending down. It was noted he was receiving steroid injections and taking prescription pain killers as treatment. The Veteran reported flare-ups and stated he could not move for 5 days because it hurt too much and he was unable to bend, reach or lift. The examiner noted that the examination was being performed during a flare-up. Range of motion testing revealed flexion was to 40 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, right lateral rotation to 20 degrees and left lateral rotation to 15 degrees. Pain was noted throughout range of motion and caused functional loss. Mild lumbar spine tenderness was noted consistent with degenerative arthritis. Evidence of pain was noted with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions and no additional loss of function or range of motion was noted after three repetitions. Muscle spasm, guarding and tenderness were noted that caused an antalgic gait. Additional factors contributing to disability included less movement than normal, disturbance of locomotion and interference with standing. There was no ankylosis of the spine and no bladder or bowel abnormalities were noted. Episodes of IVDS were not reported. The evidence does not suggest that the Veteran's back condition has significantly worsened since the March 2017 examination. Treatment records throughout the appeal period show continuing complaints of and treatment for back pain, stiffness and tenderness which affected range of motion. Upon review of the evidence, the Board finds that the evidence does not reflect entitlement to a rating in excess of 20 percent at any time. In order to receive a 40 percent rating based upon limitation of motion of the spine, it would have to be shown that the Veteran has forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. The medical evidence of record does not demonstrate such limitation. The Veteran was most recently examined during a flare-up of back pain and even after repetitive motion testing, his flexion was not limited to 30 degrees or less. The Board finds the results of the 2017 testing during a flare-up as indicative of the range of motion during flare-ups. In addition, there is no evidence of record of unfavorable ankylosis which also might justify a higher rating. When considering the IVDS Formula, under Diagnostic Code 5243, the evidence does not support a more favorable rating as there is no evidence of incapacitating episodes with physician-prescribed bedrest lasting at least 4 weeks. The evidence does not show any neurological disability associated with the service-connected back disability other than the already service connected right lower extremity radiculopathy. Thus, additional separate ratings are not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Based on the foregoing, the Board finds that the preponderance of the evidence is against assignment of a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine with intervertebral disc syndrome. The benefit of the doubt doctrine is not applicable and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. 49. ii. Knee The Veteran's left knee chondromalacia with arthritis is rated under Diagnostic Code (DC) 5003-5260. Pursuant to 38 C.F.R. § 4.27, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (DC 5260), limitation of extension (DC 5261), lateral instability or recurrent subluxation (DC 5257), and meniscal conditions (DCs 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1704 (Nov. 29, 2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (2017). Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion, as here. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003 (2017); see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Ratings can be assigned when the knee disability affects the meniscus. Specifically, a 20 percent rating is warranted when there is dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. A 10 percent rating is warranted when there has been removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case, the evidence does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis. As such, those diagnostic codes are not for application. Turning to the evidence, in his February 2010 claim, the Veteran indicated pain in his bilateral knees and that it was difficult to walk or stand for any period of time. At a March 2010 VA examination, the Veteran reported stiffness, swelling, heat, redness, giving way, locking, tenderness and pain. He indicated he did not experience weakness, lack of endurance, fatigability, deformity, drainage, effusion, subluxation or dislocation. He related flare-ups as often as 2 times per month lasting for a week with pain level at a 6 out of 10. During flare-ups, the Veteran explained he had pain on standing and walking and doing stairs. He also indicated that when he sat for a period of time, he had to get up and move his knees. He stated he could not stand or walk for long periods of times. Knee range of motion was normal. The medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test and the medial/lateral meniscus stability test were all within normal limits for both knees. In his February 2012 VA Form 9, the Veteran indicated he suffered with knee pain every day and it affected all aspects of his life. He stated that his knee prevented him from walking or standing for long periods of time. In addition, he reported being unable to ride in a car for very long because his knee hurt so much. He indicated being in extreme pain during the VA examination, although the examiner did not indicate that in the report. Following a remand by the Board, the Veteran underwent another VA examination in March 2017. X-rays were taken that showed joint spaces were well preserved with no significant osteophytes or erosions, no fractures or dislocation and no suprapatellar effusion. The Veteran reported pain, stiffness and swelling in his knee that had gotten worse. The Veteran stated he experienced flare-ups of his knee that resulted in soreness and stiffness. Flexion of the left knee was to 100 degrees. Extension was to 0 degrees. There was evidence of pain with motion on both flexion and extension. Pain was noted with weight bearing and there was objective evidence of crepitus. Mild localized tenderness was noted to be consistent with patellofemoral pain syndrome in the left knee. The Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. No additional contributing factors of disability besides pain were noted in the left knee. There was no ankylosis in either knee and no history of recurrent subluxation, lateral instability or effusion. It was noted the Veteran had never had a meniscus (semilunar cartilage) condition. The evidence does not suggest that the Veteran's knee condition has significantly worsened since the March 2017 examination. Treatment records throughout the appeal period show periodic complaints of and treatment for knee pain. The Board finds that the 10 percent rating under DC 5003-5260 is appropriate as it compensates for limitation of motion which is noncompensable under the appropriate diagnostic codes, such as that which is shown throughout the course of this appeal. Overall, the evidence does not suggest that the findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record, to include the Veteran's lay statements. The Veteran has been asked about flare-ups and has indicated additional pain, soreness, and stiffness; he did not describe any additional limitation of motion. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-up or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. The lay and medical evidence does not support a finding that the Veteran has had dislocated semilunar cartilage or removal of semilunar cartilage at any time during the appeal period. As such higher or separate ratings under Diagnostic Codes 5258 and 5259 are not warranted. 38 C.F.R. § 4.71a. The Veteran has reported experiencing a feeling of giving way in his knee; however, the only joint stability testing of record was at the VA examinations and showed no instability. While the Veteran may experience a feeling that his knee may give way or is unstable, the medical findings regarding instability, dislocation, and subluxation are more probative as to the actual presence of these conditions. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by the medical professionals in this case and revealed no instability or laxity. Hence, the evidence is against a separate rating for the knee under Diagnostic Code 5257. 38 C.F.R. § 4.71a. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. at 369-370. Based on the foregoing, the Board finds that the preponderance of the evidence is against assignment of an initial rating in excess of 10 percent for left knee chondromalacia with arthritis. The benefit of the doubt doctrine is not applicable and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. 49. (CONTINUED ON NEXT PAGE) ORDER A rating in excess of 20 percent for lumbar degenerative disc disease with intervertebral disc syndrome is denied. An initial rating in excess of 10 percent for left knee chondromalacia with arthritis is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs