Citation Nr: 18143102 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 12-31 462A DATE: October 18, 2018 ORDER Subject to the law and regulations governing payment of monetary benefits, a 10 percent rating for instability of the left knee due to arthritis is granted. Subject to the law and regulations governing payment of monetary benefits, a 10 percent rating for instability of the right knee due to arthritis is granted. Subject to the law and regulations governing payment of monetary benefits, a 20 percent rating for degenerative arthritis of the lumbar spine for the period from February 1, 2010 to September 11, 2013 is granted. REMANDED 1. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis is remanded. 2. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis is remanded. 3. Entitlement to a rating in excess of 10 percent for right knee instability is remanded. 4. Entitlement to a rating in excess of 10 percent for right knee instability is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s left knee disability has been productive of at least pain and slight instability. 2. Throughout the appeal period, the Veteran’s right knee disability has been productive of at least pain and slight instability. 3. For the period from February 1, 2010 to September 11, 2013, the Veteran’s degenerative arthritis of the lumbar spine has more nearly approximated to forward flexion of 30 degrees but not greater than 60 degrees when accounting for additional pain during flare ups and the ameliorative effects of medication. CONCLUSIONS OF LAW 1. The criteria for an initial separate 10 percent rating for instability of the left knee due to osteoarthritis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). 2. The criteria for an initial separate 10 percent rating for instability of the right knee due to osteoarthritis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). 3. The criteria for a rating of 20 percent, but not higher, for degenerative arthritis of the lumbar spine for the period from February 1, 2010 to September 11, 2013 have been met. 38 U.S.C. 1155, 5107 (2012); 38 C.F.R. 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1990 to January 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran presented sworn testimony at a hearing before the undersigned in March 2018. The Board notes, a July 2018 rating decision granted the Veteran a temporary evaluation of 100 percent effective June 12, 2018 based on surgical or other treatment necessitating convalescence for his right knee. An evaluation of 30 percent is assigned from August 1, 2019. As a 100 percent rating represents the maximum allowed, the Board will consider an increased rating for the time during the appeal, prior to the June 2018 rating decision. Entitlement to a separate rating for instability of the left and right knee. The Veteran contends that both his left knee and right knee give out on him during certain activities. At the March 2018 Board Hearing, the Veteran competently and credibly testified that he has continued to have increased bilateral knee pain, as well as “giving out” of both of his knees. As far back as his January 2010 examination, he noted difficulty crouching or stooping, and difficulty sitting for prolonged periods of time. See January 2010 QTC Medical Examination. Additionally, in his September 2010 Notice of Disagreement, he indicated that he experiences great discomfort, and swollen joints as a result of his service-connected bilateral knee condition. The Board observes that the Veteran’s September 2013, and January 2010 QTC examinations, indicate the Veteran did not have instability and or have subluxation in either his left knee or right knee. However, the June 2015 examiner noted instability of station, interference with sitting, disturbance of locomotion, and interference with standing on both sides. Additionally, the Board notes, that the Veteran is competent to report his symptoms in regard to his left knee and right knee. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d. 1331 (Fed. Cir. 2006). The Board observes that although the early examination reports of record do not objectively show right knee and left knee instability, respectively, the Board finds the Veteran’s reports of giving way of both knees throughout the appeal period are credible. Therefore, and resolving all reasonable doubt in his favor, the Board finds that the Veteran warrants an initial separate rating of 10 percent for slight instability of the left knee and an initial separate 10 percent rating for slight instability of the right knee. Entitlement to a rating on excess of 10 percent for degenerative arthritis of the lumbar spine for the period from February 1, 2010 to September 11, 2013 The Veteran seeks an initial rating in excess of 10 percent for his service-connected degenerative arthritis of the lumbar spine prior to September 11, 2013. The February 2010 rating decision granted the Veteran service connection for degenerative arthritis of the lumber spine, with an evaluation of 10 percent, effective February 1, 2010. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of 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. Separate diagnostic codes identify the various disabilities. 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 many 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 questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures 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). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart, 21 Vet. App. 505. Spinal disabilities and radiculopathy 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; see also 38 C.F.R. 4.45, 4.59. 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). Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal 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. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, or when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is 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 with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). The Veteran is in receipt of a 10 percent disability rating prior to September 11, 2013, and a 20 percent disability rating thereafter for his lumber spine disability. At the January 2010 back examination, the Veteran reported having pain that occurs twice a day, last four hours at a time. He described the pain as severe. The Veteran reported using medication to ameliorate the effects of the pain and to function. The Veteran described flare-ups that limited his functional impairment, as pain that limits his bending, stooping, and lifting, and impacts his sleep. He noted seeing a chiropractor to treat the pain. The Veteran’s range of motion was to 90 degrees and his combined range of motion to 240 degrees, which is consistent with a 10 percent disability rating, considering the Veteran’s pain symptoms. However, the Board find that the evidence of record is consistent with a 20 percent disability rating throughout the duration of the appeal. As noted at the Veteran’s January 2010 examination, the Veteran reported the pain level of his lumbar spine as severe, even considering medication. Additionally, there are deficiencies in the January 2010 VA examination, in that the examination did not provide for additional loss of motion during flare-ups, pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017). Overall, the Board finds that the evidence is consistent with a 20 percent disability rating throughout the duration of the appeal. The Veteran testified that a 20 percent rating for the period prior to September 11, 2013 satisfies his appeal with regard to this issue. See March 2018 Video Hearing Transcript at 4. Thus, the Board need not discuss whether a rating in excess of 20 percent is warranted at any point during the appeal period. See AB v. Brown, 6 Vet. App. 35, 38 (1993). REASONS FOR REMAND The Board finds that a remand is necessary to afford the Veteran a new VA examination with regard to his service-connected left knee and right knee disabilities and a retrospective opinion regarding his service-connected left knee and right knee conditions. The Veteran testified at his March 2018 hearing that his service-connected left and right knees disabilities have worsened since his last VA examination in December 2015 and that his experiences instability in his knees that included, buckling and “giving way.” See March 2018 Hearing Transcript at 6. As previously noted, the July 2018 rating decision granted the Veteran a temporary evaluation of 100 percent effective June 12, 2018 based on surgical or other treatment necessitating convalescence for his right knee, with an evaluation of 30 percent assigned from August 1, 2019. As such, a new VA examination should be scheduled regarding the current severity of his service-connected left knee disability (the knee that has not received a total knee replacement). Snuffer v. Gober, 10 Vet. App. 400 (1997). The Board notes, the Veteran’s June 2018 operative note states that the surgical procedure was a total left knee replacement. At the March 2018 Hearing, the Veteran testified that he was due to receive a total knee replacement for his left knee. The Board notes that the VA Code sheet lists the right knee as receiving the total knee replacement. The April 2018 orthopedic notes indicate a request to “add procedure for left total knee arthroplasty.” See April 2018 orthopedic note. The June 2018 primary care progress notes the Veteran as scheduled for a right knee replacement. Clarity is needed with regard to which knee received the total knee replacement. Additionally, at the March 2018 hearing, the Veteran testified that the range of motions recorded for his December 2015 VA examination do not accurately reflect the severity of his service-connected knees at that time. Thus, a competent medical opinion is also necessary in order to obtain, to the extent possible, a retrospective opinion as to the severity of the left knee and right knee from December 2015. In addition, the Veteran should be provided the opportunity to present evidence and argument as to the severity of the left knee and right knee during this period. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA and private medical records concerning the Veteran’s knee disabilities. 2. With any assistance from the Veteran, determine which knee received a total knee replacement. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his left knee and right knee symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for a VA examination to determine the nature and severity of his left knee disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. The joint(s) involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. In addition, the examiner should also provide a retrospective medical opinion as to the nature, extent and severity of the Veteran’s left knee and right knee disabilities from December 2015, including whether and to what extent the Veteran experienced functional loss due to pain and/or any of the other symptoms noted above to include locking. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should consider the Veteran’s competent and credible testimony regarding the severity of his service-connected knee conditions and the Veteran’s reports at the January 2010 examination, where the Veteran described daily knee pain that was severe, reported as an 8 out of 10 in severity, and occurs as often as twice a day, lasting up to 6 hours each time. He stated that he experienced swelling and stiffness of the knees. He maintained that he had flare-ups of the knees that was precipitated by exertion. It was noted that the Veteran had functional impairments described as pain with bending the knees and that he was presently using medication to ameliorate his symptoms. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel