Citation Nr: 18147207 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 11-21 038A DATE: November 5, 2018 ORDER Entitlement to an initial rating of 10 percent, but no higher, for a left hand disability is granted from February 8, 2018. Entitlement to a rating in excess of 10 percent for a low back disability is denied. Entitlement to a rating in excess of 10 percent for a neck disability is denied. Entitlement to a rating in excess of 10 percent for a left knee disability is denied. Entitlement to a rating in excess of 10 percent for a right ankle disability is denied. FINDINGS OF FACT 1. For the period beginning February 8, 2018, the Veteran’s left hand disability resulted in limitation of motion of the index or long finger with a gap of 4 cm. between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible; however, limitation of motion of the left thumb has not been shown at any time during the appeal period. 2. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran’s low back disability has not resulted in combined range of motion of 120 degrees or less, limitation of forward flexion to 60 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spine contour. 3. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran’s neck disability has not resulted in combined range of motion of 170 degrees or less, limitation of forward flexion to 30 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spine contour. 4. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran’s left knee disability has not resulted in limitation of flexion to 30 degrees or limitation of extension to 15 degrees. 5. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran’s right ankle disability has not resulted in marked limited motion. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 10 percent, but no higher, for a left hand disability have been met from February 8, 2018. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5228, 5229 (2018). 2. The criteria for a rating in excess of 10 percent for a low back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5237. 3. The criteria for a rating in excess of 10 percent for a neck disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5237. 4. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261. 5. The criteria for a rating in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The matter was remanded in October 2017 for additional development. That included obtaining VA examinations. Such was accomplished in February 2018. There has been substantial compliance with the Remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 104-05 (2008); Dyment v. West, 13 Vet. App. 141 (1999). In a September 2010 statement, the Veteran argued that the VA examiner’s remarks in the October 2009 examination report were misleading. The Board disagrees. There is no indication from the report that the examiner misreported any relevant information. The Veteran has not identified any inaccuracies either. 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). Increased Rating Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.”). 1. Entitlement to an initial compensable rating for a left hand disability. Diagnostic Code 5228 addresses limitation of motion of the thumb. A 20 percent rating for the minor side requires limitation of motion with a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 10 percent rating for the minor side requires limitation of motion with a gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. The Veteran’s left hand disability is rated under Diagnostic Codes 5230-5229. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. Use of the second diagnostic code helps provide further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). Additionally, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated. Id. Diagnostic Code 5229 addresses limitation of motion of the index or long finger. A 10 percent rating for the minor side requires limitation of motion with a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. The Veteran is entitled to an initial rating of 10 percent, but no higher, for his left hand disability from February 8, 2018. The February 2018 VA examination report indicates limitation of extension of the index and long fingers with a gap of 4 cm. between the finger and proximal transverse crease of the hand on maximal finger flexion. Such meets the criteria for a 10 percent rating under Diagnostic Code 5229. Nevertheless, an initial compensable rating prior to February 8, 2018 is not warranted, because August 2010 and January 2016 VA examination reports indicate no limitation of motion of the index or long finger. The Board has considered whether the Veteran’s left hand disability would warrant a higher rating under any other relevant diagnostic code. The August 2010, January 2016, and February 2018 VA examination reports indicate no limitation of motion of the thumb, thereby precluding a higher rating under Diagnostic Code 5228. 2. Entitlement to a rating in excess of 10 percent for a low back disability. Diagnostic Code 5003 addresses degenerative arthritis. Under that code, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code(s), an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. The Veteran’s low back and neck disabilities are rated under Diagnostic Code 5237. Under that code, a 100 percent rating requires unfavorable ankylosis of the entire spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating requires unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating requires forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent rating requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. The Veteran is not entitled to a rating in excess of 10 percent for his low back disability. The evidence of record, including the October 2009, January 2016 and February 2018 VA examination reports, fails to show forward flexion to 60 degrees, combined range of motion of 120 degrees or less, or muscle spasm. Forward flexion and combined range of motion were limited to, at worst, 80 degrees and 215 degrees respectively in February 2018. Although guarding was noted in February 2018, it did not cause abnormal gait or abnormal spine contour. The Board has considered whether the Veteran’s low back disability would warrant a higher rating under any other relevant diagnostic code. Although the January 2016 and February 2018 examination reports indicate IVDS, it was also noted that the Veteran had not had any episodes of acute signs and symptoms requiring bed rest prescribed by a physician in the previous year, which precludes the possibility of a higher rating under Diagnostic Code 5243. With respect to degenerative arthritis of the spine, the Veteran’s limitation of motion of the lumbar spine has met the criteria for a compensable rating throughout the appeal period, and therefore consideration of a higher rating under Diagnostic Code 5003 is not possible. 3. Entitlement to a rating in excess of 10 percent for a neck disability. The Veteran is not entitled to a rating in excess of 10 percent for his neck disability under Diagnostic Code 5237. The evidence of record, including the October 2009, January 2016, and February 2018 VA examination reports, fails to show forward flexion to 30 degrees, combined range of motion of 170 degrees or less, or severe muscle spasm or guarding. Forward flexion and combined range of motion of the cervical spine were limited to, at worst, 35 degrees and 255 degrees respectively in February 2018. Although localized tenderness, guarding, or muscle spasm was noted in February 2018, it did not cause abnormal spine contour. The Board has considered whether the Veteran’s neck disability would warrant a higher rating under any other relevant diagnostic code and determined that none are applicable. With respect to degenerative arthritis of the cervical spine, the Veteran’s limitation of motion of the cervical spine has met the criteria for a compensable rating throughout the appeal period, and therefore consideration of a higher rating under Diagnostic Code 5003 is not possible. 4. Entitlement to a rating in excess of 10 percent for a left knee disability. A June 2018 rating decision awarded the Veteran a separate 10 percent rating for instability of the left knee. Such was done under the guidance of VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997). To date, the Veteran has not appealed the assigned rating. As for his other left knee disability, the Veteran is rated under Diagnostic Code 5260 for limitation of flexion of the leg. A 10 percent rating is assigned. Under that code, a 30 percent rating requires flexion limited to 15 degrees. A 20 percent rating requires flexion limited to 30 degrees. Diagnostic Code 5261 addresses limitation of extension of the leg. Under that code, a 50 percent rating requires extension limited to 45 degrees. A 40 percent rating requires extension limited to 30 degrees. A 30 percent rating requires extension limited to 20 degrees. A 20 percent rating requires extension limited to 15 degrees. VA’s General Counsel has provided guidance concerning increased rating claims for knee disabilities. In VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997), it was held that a veteran who has arthritis and instability of the knee might be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 in order to obtain a separate rating for arthritis. In VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998), the VA General Counsel clarified that when a veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on X-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. The Veteran is not entitled to a rating in excess of 10 percent for his left knee disability. The evidence of record, including the October 2009, August 2010, March 2016, and February 2018 VA examination reports, fails to show flexion limited to 30 degrees or extension limited to 15 degrees. Flexion was limited to, at worst, 80 degrees in February 2018. Extension has been consistently normal. Such does not warrant the assignment of even a noncompensable rating under Diagnostic Code 5260 or 5261. The Board has considered whether a separate rating for arthritis is warranted. The Veteran’s limitation of flexion and extension have not meet the criteria for a noncompensable rating under Diagnostic Codes 5260 and 5261. His 10 percent rating has been assigned based on his reports of painful motion. A separate rating for arthritis based on painful motion therefore cannot be granted as such would constitute unlawful pyramiding. The Board acknowledges the competent and credible lay reports of left knee instability. However, the VA examination reports fail to support the assignment of higher rating based on functional impairment. The DBQs were completed by medical professionals who formulated those conclusions based on a physical examination, review of the record, and interview of the Veteran. The Board has no basis to contradict the conclusions made by the examiners. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The medical evidence outweighs the lay evidence of instability. 5. Entitlement to a rating in excess of 10 percent for a right ankle disability. The Veteran’s right ankle disability is rated under Diagnostic Code 5271 for limited motion of the ankle. A 20 percent rating requires marked limited motion of the ankle. The Veteran is not entitled to a rating in excess of 10 percent for his right ankle disability, because marked limited motion has not been shown. The evidence of record, including the October 2009, January 2016, and February 2018 VA examination reports, indicates full plantar flexion. Although dorsiflexion was limited to 5 degrees at the January 2016 examination, it was only limited to 15 degrees in February 2018, indicating that the January 2016 result was more likely a flare-up than a representation of the underlying level of disability. The Board has considered whether a higher rating for the Veteran’s left hand, low back, neck, left knee, and right ankle disabilities is appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59, and concluded that such is not warranted. Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. The Court specifically discounted the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially “absurd results.” Id. at 43. The additional limitation (functional loss) experienced by the Veteran due to pain was accounted for by the VA examiners when determining his range of motion. The examiners reported range of motion that included specific findings pertaining to pain. As to the lay statements describing the Veteran’s symptomology and his reports of pain during flare-ups, weakness, lack of endurance, and similar complaints, the evidence does not demonstrate additional functional limitation more closely approximating the criteria for a higher rating. The presently assigned left hand, low back, neck, left knee, and right ankle ratings account for the Veteran’s complaints of pain. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel