Citation Nr: 18146047 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-31 328 DATE: October 30, 2018 ORDER Entitlement to an evaluation in excess of 20 percent for lumbar strain denied. Entitlement to an initial compensable rating for degenerative joint disease (DJD) with limited flexion of the right knee is denied. Entitlement to an initial compensable rating for arthritis with limited extension of the right knee is denied. Entitlement to an initial rating in excess of 10 percent for right knee instability prior to July 26, 2016, is denied. Entitlement to a rating of 10 percent, but no higher, for right knee instability from July 26, 2016, is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran’s lumbar strain is not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 2. The Veteran’s right knee disability is not manifested by flexion limited to 45 degrees. 3. The Veteran’s right knee disability is not manifested by extension limited to 10 degrees. 4. Prior to July 25, 2016, the Veteran’s right knee instability was not manifested by moderate recurrent subluxation or lateral instability. 5. From July 25, 2016, the Veteran’s right knee instability is manifested by slight recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for lumbar strain have not been met. 38 U.S.C. §1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5237. 2. The criteria for an initial compensable evaluation for DJD with limited flexion of the right knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260. 3. The criteria for an initial compensable evaluation for arthritis with limited extension of the right knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5261. 4. Prior to July 25, 2016, the criteria for a rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. 5. From July 25, 2016, the criteria for a rating of 10 percent, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1983 to December 1992. Regarding the Veteran’s claim for an increased rating for his back disability, a Department of Veterans Affairs (VA) Regional Office (RO) issued a decision in December 2013 which in pertinent part, increased the Veteran’s disability evaluation to 20 percent, effective February 11, 2013. The Veteran filed a timely notice of disagreement in January 2014 and a statement of the case was issued in May 2016. The Veteran filed a VA Form-9 in June 2016 and elected not to undergo an optional Board of Veterans’ Appeals (Board) hearing. Regarding the Veteran’s claim for an increased rating for his right knee disability, the RO issued a decision in February 2014 granting a 10 percent evaluation for DJD of the right knee based on slight lateral instability. The Veteran filed a notice of disagreement in April 2014 and a statement of the case was issued in May 2016. In May 2017, the RO issued a decision granting a noncompensable evaluation for limited extension of the right knee. In August 2017, the RO issued a decision granting the Veteran a 10 percent evaluation prior to July 25, 2016 and a noncompensable evaluation from July 25, 2016 for right knee instability. The Board observes that in a May 2016 rating decision, the RO granted separate service connection for radiculopathy of the bilateral lower extremities as of February 11, 2013, subject to the provisions of Note (1) under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. As such, the adjudicative action directed in Note (1) of 38 C.F.R. § 4.71a has been accomplished resulting in a favorable outcome for the Veteran. Id. Therefore, as the Veteran has not filed a notice of disagreement contesting either downstream element of the rating or the effective date assigned following the grant of service connection for radiculopathy of the bilateral lower extremities, these discrete issues will no longer be addressed as part of the current appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board acknowledges the Veteran’s argument through his representative, that the VA examinations for his back and right knee are too old to adequately represent his disabilities. See August 2018 Appellate Brief. The Veteran was last provided a VA back conditions examination in May 2016 and a VA knee conditions examination in July 2016. The Board finds that as the Veteran has not alleged a worsening of his conditions since the most recent examinations and the medical record does not otherwise suggest a worsening of these conditions, the mere fact that the examinations are 2 years old does not warrant a finding that they are inadequate for rating purposes. Accordingly, the decision below is based on the medical evidence of record. Increased Ratings Disability ratings are based on 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §4.7. The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Because the Veteran is appealing the initial assignment of the disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present. See Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107B. The Board has considered the entire record, including the Veteran’s VA clinical records. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. Entitlement to an evaluation in excess of 20 percent for lumbar strain The Veteran contends that his lumbar strain is more severe than what is represented by a 20 percent rating. The Veteran’s lumbar spine disability has been assigned a 20 percent rating pursuant to 38 C.F.R. § 4.71 (a), DC 5237. The Board notes that while the regulations pertaining to the disabilities of the spine have undergone recent amendments, these changes do not affect the present claim, as the Veteran’s claim was filed in 2013, subsequent to the most recent regulation change. Thus, the rating criteria currently in effect, the General Rating Formula for Diseases and Injuries of the Spine, are the only rating criteria for current consideration. Under DC 5237, a rating of 20 percent is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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. 38 C.F.R. §4.71a, General Rating Formula for Diseases and Injuries of the Spine, DC 5237. A rating of 40 percent is warranted when there is forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankyloses of the entire thoracolumbar spine. Id. A rating of 50 percent is warranted for unfavorable ankyloses of the entire thoracolumbar spine and a rating of 100 percent is warranted for unfavorable ankylosis of the entire spine. Id. The Board has considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§ 4.40 and 4.45, as well as the holding in Deluca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment attributable to pain. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss as set forth 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. See Deluca v. Brown, 8 Vet. App. 202 (1995). The Veteran was provided with a VA back conditions examination in December 2013. The VA examiner diagnosed the Veteran with degenerative arthritis of the spine, intervertebral disc syndrome (IVDS), and lumbar strain. The Veteran did not report flare-ups that impact the function of his low back. Range of motion testing showed flexion to 90 degrees or greater with pain at 70 degrees, extension to 25 degrees with pain at 15 degrees, right lateral flexion to 30 degrees or greater with no pain, left lateral flexion to 30 degrees or greater with pain at 0 degrees, right lateral rotation to 30 degrees or greater with no pain, and left lateral rotation to 30 degrees with no pain. The Veteran was able to perform repetitive use testing with 3 repetitions with no additional limitation in range of motion. Functional loss was noted to be less movement than normal, weakened movement, incoordination, and pain on movement. The Veteran was noted to have tenderness to palpation of paraspinous musculature lower back. He had muscle spasm of the thoracolumbar spine not resulting in abnormal gait or spinal contour. He did not have guarding of the thoracolumbar spine not resulting in abnormal gait or spinal contour. Muscle strength testing was normal. The Veteran did not have muscle atrophy. Sensory exam testing was normal. Straight leg raising testing was normal. The Veteran did not have radiculopathy. He did not have ankylosis of the spine or other neurologic abnormalities. The Veteran was noted to have IVDS with no incapacitating episodes in the past 12 months. Arthritis was documented with diagnostic testing. The Veteran was provided with another VA back conditions examination in May 2016 where the VA examiner noted diagnoses of lumbosacral strain and degenerative arthritis of the spine. The Veteran reported flare ups daily with activity. The pain limits his ability to do things but he was noted to try and push through. Range of motion testing showed flexion to 60 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. Pain was noted on the exam, but did not result in functional loss. There was no evidence of pain with weight-bearing. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with 3 repetitions with no additional limitation in range of motion. The exam was not conducted during a flare-up and the examiner noted the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. Pain was noted to significantly limit functional ability with flare-ups. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The factors contributing to disability were disturbance of locomotion, interference with sitting and standing. Muscle strength testing was normal. The Veteran did not have muscle atrophy. Reflex and sensory exam testing were normal. Straight leg raising testing was positive bilaterally. The Veteran was noted to have radiculopathy of the bilateral lower extremities. He did not have ankylosis of the spine. The examiner noted a few episodes of post-void dribbling, but doubted this was related to the Veteran’s back condition. The Veteran was noted to have IVDS with episodes of bed rest having a total duration of at least two weeks but less than four weeks during the past 12 months. Arthritis was documented through diagnostic testing. In applying the above law to the facts of this case, the Board finds that the Veteran is not entitled to a disability rating higher than 20 percent for his service-connected lumbar spine disability. Here, the record before the Board reveals no medical evidence of forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The Board acknowledges the presence of IVDS with no incapacitating episodes in the past 12 months at the December 2013 VA examination and IVDS with episodes of bed rest having a total duration of at least two weeks but less than four weeks during the past 12 months at the May 2016 VA examination. However, this is not sufficient to warrant a rating higher than 20 percent under DC 5243 for IVDS as the Veteran has not been found to have incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks in the past 12 months. The Veteran has asserted that his symptoms are more severe than what is represented by a 20 percent rating. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the Veteran’s statements to be credible. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). However, the Board finds that the totality of the evidence shows that the current 20 percent rating appropriately compensates the Veteran’s symptoms. The Board concludes that the medical findings on examinations are of greater probative value than the Veteran’s allegations regarding the severity of his disability, because even considering the symptoms described by the Veteran, he was nonetheless capable of demonstrating forward flexion of the thoracolumbar well beyond 30 degrees repeatedly on VA examinations. The symptomatology noted in the medical and lay evidence has been adequately addressed by the evaluations assigned and do not more nearly approximate the criteria for higher evaluations at any time during all relevant periods on appeal. In summary, the Board finds that the Veteran’s currently assigned 20 percent rating is commensurate with the symptoms manifested. Factual background for right knee disability The Veteran contends that his right knee disability is more severe than what is represented by the current ratings. The Veteran’s right knee disability has been assigned a 10 percent evaluation pursuant to DC 5010-5260 effective February 12, 2013, for limited flexion; a noncompensable evaluation pursuant to DC 5010-5261 effective May 9, 2016 for limited extension; and a 10 percent evaluation from February 12, 2013 and noncompensable evaluation from July 25, 2013 pursuant to DC 5257 for instability. Under DC 5257, a 10 percent disability rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent disability rating is warranted for moderate recurrent subluxation or lateral instability; and a 30 percent disability rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Under DC 5260, limitation of flexion of the leg to 60 degrees warrants a noncompensable rating; limitation to 45 degrees warrants a 10 percent rating; limitation to 30 degrees warrants a 20 percent rating; and limitation to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, limitation of extension of the leg to 5 degrees warrants a noncompensable rating; limitation to 10 degrees warrants a 10 percent rating; limitation to 15 degrees warrants a 20 percent rating; limitation to 20 degrees warrants a 30 percent rating; limitation to 30 degrees warrants a 40 percent rating; and limitation to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. The normal range of motion for the knee is to 140 degrees in flexion, and 0 degrees in extension. 38 C.F.R. § 4.71, Plate II. VA General Counsel has issued separate precedential opinions holding that a Veteran also may be assigned separate ratings for X-ray evidence of arthritis with noncompensable or painful limitation of motion, or limitation of motion under DC 5260 or 5261, and for instability under Diagnostic Code 5257 or 5259. VAOPGCPREC 23-97; VAOPGCPREC 9-98; See also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04. Diagnostic Code 5003 is employed when rating degenerative arthritis. According to Diagnostic Code 5003, degenerative arthritis (hypertrophic or osteoarthritis) when established by X-ray findings is rated on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200 etc.). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71 (a), DC 5003. The Veteran was provided with a VA knee conditions examination in December 2013 where he was diagnosed with a right meniscus injury. The Veteran did not report flare-ups of the knee. Range of motion testing showed flexion to 140 degrees or greater and no limitation of extension. The Veteran was able to perform repetitive use testing after 3 repetitions with no change in range of motion. Functional loss was noted to include interference with sitting, standing, and weight bearing. The Veteran did not have pain to palpation for the joint line or soft tissue. Muscle strength testing was normal. Joint stability testing was normal except for the medial-lateral instability showing 1+. There was no patellar subluxation or dislocation. The Veteran was provided with another VA knee conditions examination in May 2016 where he was diagnosed with degenerative arthritis of both knees. The Veteran reported having steroid injections, without much relief. The Veteran reported flares with activity and cold weather which limited his mobility due to pain and stiffness. Range of motion testing showed flexion from 5 to 90 degrees and extension from 90 to 5 degrees. Pain was noted on the exam but did not cause functional loss. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint with evidence of crepitus. The Veteran was able to perform repetitive use testing after 3 repetitions with no change in range of motion. The Veteran was not examined immediately after repetitive use over time and the examiner noted that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain was noted to limit functional ability with repeated use over a period of time. The exam was being conducted during a flare up and pain, weakness, fatigability, and incoordination significantly limited functional ability with flare-ups. Additional factors contributing to disability included swelling, disturbance of locomotion, and interference with standing. Muscle strength testing was normal. The Veteran did not have muscle atrophy or ankylosis. Joint stability tests did not show any recurrent subluxation or lateral instability. There was no history of recurrent effusion. The Veteran was noted to have a meniscal tear and frequent episodes of joint pain. Diagnostic testing documented bilateral traumatic arthritis. The Veteran was most recently provided with a VA knee conditions examination in July 2016. The Veteran reported knee pain daily. The VA examiner noted a right knee meniscal tear and bilateral knee joint osteoarthritis. The Veteran reported flare ups with increased pain and swelling depending on activity level. Functional loss included decreased weight-bearing tolerance. Range of motion testing showed flexion from 5 to 100 degrees and extension from 100 to 5 degrees. Pain was noted on the exam but did not cause functional loss. There was evidence of pain with weight bearing and crepitus. There was objective evidence of localized tenderness or pain on palpation of the joint with evidence of crepitus. The Veteran was able to perform repetitive use testing after 3 repetitions with no change in range of motion. The Veteran was not examined immediately after repetitive use over time and the examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain was noted to limit functional ability with repeated use over a period of time. The exam was not conducted during a flare-up and the examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups. Additional factors contributing to disability included swelling, disturbance of locomotion, and interference with standing. Muscle strength testing was normal. The Veteran did not have muscle atrophy or ankylosis. Joint stability tests did not show any recurrent subluxation or lateral instability. There was no history of recurrent effusion. The Veteran was noted to have a meniscal tear and frequent episodes of joint locking, joint pain, and joint effusion. Diagnostic testing documented bilateral traumatic arthritis. In an August 2017 statement through his representative, the Veteran claimed that he still has instability in his right knee since no operation has been performed to correct this. Entitlement to an initial disability evaluation in excess of 10 percent for DJD with limited flexion of the right knee under 38 C.F.R. § 4.71 (a), DC 5010-5260 Throughout the appeal period, the Veteran’s flexion has not been limited to less than 90 degrees at any time. See December 2013, May 2016 and July 2016 VA examination reports discussed above. These findings do not warrant a rating in excess of 10 percent under DC 5260 for limitation of flexion. Accordingly, the Board finds that the Veteran’s currently assigned 10 percent rating for limited flexion of the right knee is commensurate with the symptoms manifested. Entitlement to an initial compensable disability evaluation for arthritis with limited extension of the right knee under 38 C.F.R. § 4.71 (a), DC 5010-5261 Throughout the appeal period, the Veteran’s extension has not been limited to more than 5 degrees at any time. See December 2013, May 2016 and July 2016 VA examination reports discussed above. These findings do not warrant a compensable rating under DC 5261 for limitation of extension. Accordingly, the Board finds that the Veteran’s currently noncompensable rating for limited extension of the right knee is commensurate with the symptoms manifested. Entitlement to a disability evaluation in excess of 10 percent prior to July 25, 2016 and a compensable evaluation from July 25, 2016 for right knee instability under 38 C.F.R. § 4.71 (a), DC 5257 In light of the VA examination report from December 2013 showing medial-lateral instability of 1+ and the Veteran’s lay statements regarding ongoing instability in his right knee, the Board finds that the evidence shows that the Veteran’s service-connected right knee instability is adequately compensated by a 10 percent disability rating for the entire appeal period under DC 5257 for recurrent subluxation or lateral instability of the knee. Although the Board finds evidence of slight recurrent subluxation in the Veteran’s medical treatment records, there is no evidence of moderate recurrent subluxation or lateral instability. As such, the Board finds that the Veteran’s right knee disability did not approximate the severity encompassed by the 20 percent rating under DC 5257 throughout the appeal period. Accordingly, the Board finds that for the period prior to July 25, 2016, the Veteran’s 10 percent disability rating for right knee instability is commensurate with the symptoms manifested. Additionally, the Board finds that from the period beginning July 25, 2016, the Veteran is warranted a 10 percent rating, but no higher, for his right knee instability. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel