Citation Nr: 18143994 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-05 368 DATE: October 22, 2018 ORDER Entitlement to a disability rating in excess of 20 percent for left knee patellar tendonitis with degenerative arthritis is denied. Entitlement to a disability rating in excess of 20 percent for lumbar spine sprain with degenerative arthritis is denied. FINDINGS OF FACT 1. The Veteran’s left knee patellar tendonitis with degenerative arthritis does not manifest as extension limited to 20 degrees, ankylosis, recurrent subluxation or lateral instability, dislocated or removed semilunar cartilage, flexion limited to 60 degrees, or impairment of the tibia or fibula. 2. For the period on appeal, the Veteran’s degenerative disc disease of the lumbar spine does not manifest as forward thoracolumbar flexion of 30 degrees or less, ankylosis, or incapacitating attacks of intervertebral disc syndrome (IVDS). CONCLUSIONS OF LAW 1. For the period on appeal, the criteria for a disability rating in excess of 20 percent for left knee patellar tendonitis with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5261 (2017). 2. For the period on appeal, the criteria for a disability rating in excess of 20 percent for lumbar spine sprain with degenerative arthritis were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from June 2008 to March 2013. The Veteran testified before the undersigned Veterans Law Judge during an October 2017 hearing. These matters are on appeal from a January 2015 rating decision. In November 2015, the Veteran testified at a Board hearing before a different Veterans Law Judge regarding the issues of entitlement to an increased rating for bilateral pinguecula and to service connection for a sleep disorder and hemorrhoids. The Board remanded those issues for additional development in September 2017, development remains ongoing, and they will be the subject of a separate Board decision issued at a later date. The issues listed on the title page were previously remanded by the Board in January 2018 to afford the Veteran additional VA examinations. The AOJ has done so. In an October 2018 statement, the Veteran’s representative contends that these examinations were inadequate because the Board requested a “complete rationale for any opinion expressed,” which the examiner did not provide. The Board recognizes this deviation from the remand directives, but finds that it is not such that a remand is required for correction. See D’Aries v. Peake, 22 Vet. App. 97, 106 (2008). The representative cites cases regarding the importance of rationales to support examiners’ opinions, but the importance of rationales applies to nexus opinions for service connection, which the examiner was not requested to provide in connection with these increased rating claims. Because the examiner did not provide any nexus opinion, there was no need to supply a rationale to support one. Additionally, the examiner described the severity of the Veteran’s disabilities in detail sufficient for the Board to make a fully informed determination. The Board finds that there was substantial compliance with the remand directives with regard to the issues being decided below. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative have raised any other issue 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). Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. “Staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. at 509; see also 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, “pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. In this case, at least the minimum compensable ratings have been in effect during the entire appeal period. Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Left Knee The Veteran contends that his left knee patellar tendonitis with degenerative arthritis warrants a higher rating than that currently assigned. It is currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5261, with a 20 percent rating on and after March 5, 2013. 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. 38 C.F.R. § 4.27 (2017). Diagnostic Code 5003 pertains to degenerative arthritis and Diagnostic Code 5261 pertains to limitation of leg extension. VA received the Veteran’s claim for an increased rating on November 28, 2014. Diagnostic Code 5003 provides, when limitation of motion is noncompensable under the appropriate Diagnostic Code, for a 10 percent rating for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. For rating purposes, the knee is considered a major joint. 38 C.F.R. § 4.45. As the Veteran is already in receipt of a 20 percent rating based on limitation of motion throughout the period on appeal, a rating under Diagnostic Code 5003 is not applicable. Limitation of extension of the leg is evaluated as follows: extension limited to 45 degrees (50 percent); extension limited to 30 degrees (40 percent); extension limited to 20 degrees (30 percent); extension limited to 15 degrees (20 percent); extension limited to 10 degrees (10 percent); and extension limited to 5 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5261. For VA purposes, 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. There are additional Diagnostic Codes that apply to knee disorders. 38 C.F.R. § 4.45(f) (2017). 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2017) pertains to ankylosis of the knee. Recurrent subluxation or lateral instability of the knee is evaluated as follows: severe (30 percent); moderate (20 percent); and slight (10 percent). Id. Meniscal conditions are evaluated as follows: dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint (20 percent); and symptomatic removal of semilunar cartilage (10 percent). 38 C.F.R. § 4.71a, Diagnostic Codes 5258 and 5259 (2017). Limitation of flexion of the leg is evaluated as follows: flexion limited to 15 degrees (30 percent); flexion limited to 30 degrees (20 percent); flexion limited to 45 degrees (10 percent); and flexion limited to 60 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). Impairment of the tibia and fibula is evaluated as follows: nonunion with loose motion, requiring a brace (40 percent); malunion with marked knee or ankle disability (30 percent); malunion with moderate knee or ankle disability (20 percent); and malunion with slight knee or ankle disability (10 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2017). The Veteran was afforded a VA examination in January 2015. The examiner diagnosed tendonitis of the left knee. The Veteran reported worsening daily left knee pain and that it interfered with exercise, prevented running, and limited walking to one block. He denied any flare ups. On examination, range of motion was reported as 10 degrees of extension to 80 degrees of flexion, but the range of motion did not itself contribute to functional loss. Pain was noted on flexion but did not cause functional loss. There was no tenderness or pain to palpation. There was no additional loss of function or range on repetition. The examiner noted that the examination was not after repetition over time but opined that those factors would not significantly limit functional ability. There was no muscle atrophy or reduction in muscle strength. There was no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. On examination, there was no anterior, posterior, medial, or lateral instability. There was no tibial or fibular impairment. There was no history of meniscal conditions. The Veteran did not report using any assistive devices. The examiner found that the Veteran’s left knee disability would have no impact on his ability to work. During a September 2015 VA treatment appointment, the Veteran reported that he did not feel he had any restrictions with walking or lifting. On examination, range of motion was reported as intact with no effusion. During his October 2017 Board hearing, the Veteran testified that he did not walk long distances or climb stairs due to knee pain. He also testified that he felt his knee sometimes bent backward. He denied any history of left knee surgery. The Veteran was afforded an additional VA examination in June 2018. The examiner diagnosed Osgood-Schlatter’s syndrome and patellar tendonitis of the left knee. The Veteran reported exertional knee pain several times a week. The Veteran denied any flare ups or functional impairment. On examination, range of motion was reported as 0 degrees of extension to 100 degrees of flexion, but the range of motion did not itself contribute to functional loss. Pain was noted on flexion but did not cause functional loss. There was no evidence of pain with weight bearing or of tenderness or pain on palpation. There was no objective evidence of crepitus. There was no additional loss of motion on repetition. The examiner indicated that the examination was immediately after repetitive use over time and that this caused no significant limitation. There was no muscle atrophy or reduction in muscle strength. There was no ankylosis or history of recurrent subluxation. Joint stability testing was normal. There was no tibial or fibular impairment or any history of a meniscal condition. The Veteran did not report using any assistive devices. The examiner found that the Veteran’s left knee disability would have no impact on his ability to work. The examiner added that there was no pain with passive range of motion or with non-weight-bearing use of the left knee. The preponderance of the evidence described above shows that the Veteran’s left knee patellar tendonitis with degenerative arthritis does not warrant a rating in excess of 20 percent during the period on appeal. No examiner or treatment provider has found that the Veteran’s left leg extension is limited to more than 10 degrees during the period on appeal. A 30 percent rating under Diagnostic Code 5261 requires limitation to 20 degrees. At worst, his limitation of extension was 10 degrees, and it was normal at his most recent VA examination. The preponderance of the evidence also shows that the Veteran’s left knee disability has not been manifested by ankylosis, recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, limitation of flexion to less than 60 degrees, or impairment of the tibia or fibula. The Board has considered the Veteran’s lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his left knee disability and his descriptions are credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, to the extent that the Veteran’s subjective report of his knee sometimes bending backward can be interpreted as a report of recurrent subluxation or instability, the Board places greater probative value on the objective testing results, which have consistently found no subluxation or instability. While the Veteran may experience a feeling that his knee may give way or bend backward, the medical findings regarding instability and subluxation are more probative as to the actual presence of these conditions. Notably, there are specific medical tests designed to reveal instability and laxity of joints. These tests were administered by medical professionals in this case and revealed no instability or laxity, as discussed above. Hence, the evidence is against a separate rating for the knee under Diagnostic Code 5257. 38 C.F.R. § 4.71a. In addition, the Board considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. There is nothing to indicate that the Veteran’s pain causes functional impairment equivalent to the criteria for a rating in excess of 20 percent. Because the Board considered the applicable ratings under every Diagnostic Code pertaining to musculoskeletal disabilities of the knee, the Board finds that there are no other potentially applicable Diagnostic Codes by which a higher rating can be assigned. 2. Lumbar Spine The Veteran contends that his lumbar spine sprain with degenerative arthritis warrants a rating in excess of 20 percent. It is currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5237, with a 20 percent rating on and after March 5, 2013. Diagnostic Code 5242 pertains to degenerative arthritis of the spine and Diagnostic Code 5237 pertains to lumbosacral or cervical strain. VA received the Veteran’s claim for an increased rating on November 28, 2014. Diagnostic Code 5237 provides for rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Diagnostic Code 5242 provides for rating under the General Formula or under 38 C.F.R. § 4.71a, Diagnostic Code 5003 for arthritis. As Diagnostic Code 5003 provides for a compensable rating only if one is not available under the General Formula, it is not applicable to this case. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area affected by residuals or injury or disease. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2017). Under the General Formula, a 20 percent rating is warranted for: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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. Id. 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. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id. at Note (5). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, extension is from zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are from zero to 30 degrees. Id. at Note (2). 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. Id. In addition, the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes allows for the assignment of rating criteria based on the frequency and extent of incapacitating episodes during the preceding 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). For VA rating purposes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). The Veteran was afforded a VA examination in January 2015. The examiner diagnosed lumbosacral strain and degenerative arthritis of the spine. The Veteran reported he could not “bend that much” and that he had daily pain. He denied flare ups. On examination, thoracolumbar motion was reported as 50 degrees of forward flexion, 20 degrees of extension, 20 degrees of right lateral flexion, 30 degrees of left lateral flexion, and 30 degrees of right and left lateral rotation. The examiner found that limited flexion and extension caused functional loss and that pain on forward flexion and extension also caused functional loss. There was no evidence of pain with weight bearing and there was no tenderness or pain on palpation. On repetition, there was no additional loss of function or range of motion. The examiner indicated that the examination was not immediately after repetitive use over time but that there would be no additional functional limitation with repetitive use over time. There was no muscle spasm or guarding, but there was localized tenderness not resulting in abnormal gait or spinal contour. There was no muscle atrophy and muscle strength was normal. Reflexes were normal. Sensory examination was normal. There was no radiculopathy, ankylosis, other neurologic abnormalities, or IVDS. The Veteran did not report using any assistive devices. The examiner did not opine as to the functional impact of the Veteran’s lumbar spine disability. During a September 2015 VA treatment appointment, the Veteran reported that he did not feel he had any restrictions with walking or lifting. On examination, range of motion was reported as intact. The treatment provider noted that the Veteran carried a large backpack to the appointment. During his October 2017 Board hearing, the Veteran testified that his low back symptoms had worsened and prevented him from standing for long periods or lifting anything heavy. He denied any history of low back surgery. The Veteran was afforded an additional VA examination in June 2018. The examiner diagnosed lumbosacral strain and degenerative arthritis of the spine. The Veteran reported exertional back pain several times a week. The Veteran denied any flare ups or functional impairment. On examination, thoracolumbar motion was reported as 70 degrees of flexion, 20 degrees of extension, 20 degrees of right and left lateral flexion, 20 degrees of right lateral rotation, and 30 degrees of left lateral rotation. There was no pain during range of motion testing. The loss of motion did not itself contribute to functional loss and there was no pain noted on examination. There was no evidence of pain with weight bearing or tenderness with palpation. There was no additional loss of function on repetition. The examiner indicated that the examination was immediately after repetitive use over time and that this caused no significant limitation. There was no guarding or muscle spasm. There was no muscle atrophy or reduction in muscle strength. Reflexes were normal. There was no radiculopathy, ankylosis, other neurologic abnormalities, or IVDS. The examiner characterized the functional limitation of the Veteran’s lumbar spine as limiting walking to one block on level ground and lifting and carrying to 25 pounds. The examiner noted that both passive and active range of motion were assessed and that there was no pain or change in passive range of motion in the supine position or active range of motion in the upright weight bearing position. The preponderance of the evidence described above shows that the Veteran’s low back disability does not warrant a rating in excess of 20 percent during the period on appeal. No VA examiner or treatment provider has found that the forward flexion of the Veteran’s thoracolumbar spine was 30 degrees or less. Given the existence of a range of thoracolumbar motion, the preponderance of the evidence is against a finding that the Veteran has ankylosis of the thoracolumbar spine as defined above. The Board has additionally considered whether a higher rating is warranted under the formula for rating IVDS based on incapacitating episodes. There is no evidence in the record of a diagnosis of IVDS during the period on appeal or of incapacitating episodes as defined above. For these reasons, a rating based on incapacitating episodes caused by IVDS is not warranted. The Board therefore finds that there are no other potentially applicable Diagnostic Codes by which higher ratings can be assigned. The Board has considered the Veteran’s lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his lumbar spine disability. See Jandreau, 492 F.3d at 1376-77. His descriptions are also credible. Nothing in those statements is inconsistent with the 20 percent rating currently assigned. In addition, the Board considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. There is nothing to indicate that the Veteran’s pain causes functional impairment equivalent to the criteria for a rating in excess of 20 percent. Any associated objective neurologic abnormalities caused by the Veteran’s low back disability, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a at Note (1). There is no objective evidence of neurologic abnormalities. The two VA examiners specifically found that there was no radiculopathy in either lower extremity. For these reasons, the Board finds that the Veteran’s disability picture is most closely approximated by the 20 percent criteria for the period on appeal. 38 C.F.R. § 4.7. Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ryan Frank, Counsel