Citation Nr: 18147911 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-03 218 DATE: November 6, 2018 ORDER Entitlement to a rating in excess of 10 percent for a cervical spine disability is denied. Entitlement to a rating in excess of 10 percent for a lumbar spine disability is denied. Entitlement to a rating in excess of 10 percent for a right knee disability is denied. Entitlement to a rating in excess of 10 percent for a right ankle disability is denied. FINDINGS OF FACT 1. The Veteran’s cervical spine disability was manifested by painful motion, but with forward flexion of greater than 30 degrees, combined range of motion of the cervical spine of greater than 170 degrees, and no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitating episodes requiring bed rest prescribed by a physician. 2. The Veteran's lumbar spine disability was manifested by painful motion, but not forward flexion of the thoracolumbar spine of 60 degrees or less, combined range of motion of the thoracolumbar spine 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitating episodes requiring bed rest prescribed by a physician. 3. The Veteran’s right knee disability has been manifested by pain on movement, but without limitation of flexion to 30 degrees or a limitation of extension to 15 degrees, and without lateral instability. 4. The Veteran’s right ankle disability was manifested by pain on movement, but with normal range of motion of dorsiflexion to 20 degrees and plantar flexion to 45 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2017). 2. The criteria for a rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2017). 3. The criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2017). 4. The criteria for a rating in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 2009 to June 2013. He died in September 2017. The Appellant is the Veteran's surviving child. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, VA has a duty to acknowledge and consider all regulations which are potentially applicable, and to explain the reasons and bases for its conclusions. 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.”). Entitlement to a rating in excess of 10 percent for a cervical spine disability The Veteran was awarded service connection for a cervical spine strain in an April 2014 rating decision, rated at 0 percent, effective June 20, 2013. The Veteran was then granted an increased 10 percent rating in a November 2015 rating decision, effective back to original grant date of June 20, 2013. During his lifetime, the Veteran contended that his cervical spine disability was more severe than its 10 percent rating. The Veteran’s cervical spine disability is currently rated under Diagnostic Code 5237. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. There has been no documentation of incapacitating episodes, and as a result, an evaluation will be made under the General Rating Formula. Under the General Rating Formula, a cervical spine injury is rated as follows: A 10 percent evaluation is warranted where forward flexion of the cervical spine is greater than 30 degrees but not greater than 45 degrees; or, the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted where forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine is 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. A 30 percent evaluation is warranted for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. For the reasons explained below, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent. During the Veteran’s discharge examination in June 2013, he reported pain and stiffness in his neck, and receiving chiropractic adjustments twice per month. The examination reflected forward flexion of the cervical spine was 45 degrees, extension was 45 degrees, left lateral flexion was 45 degrees, right lateral flexion was 45 degrees, left lateral rotation was 80 degrees and right lateral rotation was 80 degrees. No painful motion was noted. The examiner noted that there was no additional functional limitation, including further loss of motion, during flare-up or secondary to repetitive use. The examination also revealed no indication of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. See C&P Exam, dated June 12, 2013. The Veteran was also afforded a VA Examination in August 2017. The Veteran reported constant stiffness in his neck, with pain and difficulty moving his neck. The examination reflected forward flexion of the cervical spine was 45 degrees, extension was 45 degrees, left lateral flexion was 45 degrees, right lateral flexion was 45 degrees, left lateral rotation was 80 degrees and right lateral rotation was 80 degrees. The examiner noted pain on motion, without functional loss. The examiner noted that there was additional functional limitation and a 5-degree loss of range of motion, on all measurements, after repetitive use. The examination also revealed no indication of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. See C&P Exam, dated September 12, 2017. The Veteran’s VA treatment records collectively indicate that he complained of, and was treated for pain of the cervical spine. Based on the evidence of record, the Board finds that an evaluation in excess of 10 percent for the Veteran’s cervical spine disability is not warranted. Objective findings from the Veteran's VA examinations are consistent with a 10 percent evaluation, but no greater. Forward flexion, even with pain and after repetitive testing, is greater than 30 degrees, the combined range of motion of the cervical spine is greater than 170 degrees, and there is no ankylosis of the cervical spine. Deluca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59. In reaching this conclusion, the Board has not overlooked the Veteran's statements with regard to the severity of his disability during this period. The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing pain; and the Board finds that the Veteran's reports have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board has considered the Veteran's reports along with findings from the Veteran's VA examinations. The Board notes, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise which the Veteran has not been shown to have, the objective medical findings and opinions provided by the Veteran's VA examination reports in particular, have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). 1. Entitlement to a rating in excess of 10 percent for a lumbar spine disability The Veteran was awarded service connection for a lumbar spine strain with arthritis in an April 2014 rating decision, rated at 10 percent, effective June 20, 2013. During his lifetime, the Veteran contended that his lumbar spine disability was more severe than its 10 percent rating. The Veteran’s lumbar spine disability is currently rated under Diagnostic Code 5242, for degenerative arthritis of the spine. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. There has been no documentation of incapacitating episodes, and as a result, an evaluation will be made under the General Rating Formula. Under the General Rating Formula, a lumbar spine injury is rated as follows: A 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided 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. For the reasons explained below, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent. During the Veteran’s discharge examination in June 2013, he reported having pain, stiffness, and spasms, with intermittent radiation to the right leg. Range of motion testing revealed flexion to 80 degrees; extension to 25 degrees; right and left lateral flexion to 25 degrees; and right and left rotation to 30 degrees. Painful motion was noted. The examiner noted that there was no limitation on range of motion after repetitive use. Muscle spasms were absent and there was no ankylosis or tenderness of the lumbar spine. The examiner indicated that the Veteran had some functional loss, resulting in less movement than normal and pain on movement. There were no indications of guarding or spasms, intervertebral disc syndrome, abnormal gait, or any findings of radiculopathy or neurological abnormalities. See C&P Exam, dated June 12, 2013. The Veteran was also afforded an August 2017 VA examination. The Veteran reported being unable to lift, sit, lay down, stand or move without pain. He also reported stiffness, tightness, and limited motion of the spine. Range of motion testing revealed flexion to 90 degrees; extension to 30 degrees; right and left lateral flexion to 30 degrees; and right and left rotation to 30 degrees. The examiner noted pain on motion, but without functional loss. The examiner noted that there was additional functional limitation and a 5-degree loss of range of motion, on all measurements, after repetitive use. There were no indications of guarding or spasms, intervertebral disc syndrome, abnormal gait, or any findings of radiculopathy or neurological abnormalities. See C&P Exam, dated September 12, 2017. The Veteran’s VA treatment records collectively indicate that he complained of, and was treated for pain of the lumbar spine. Based on the evidence of record, the Board finds that an evaluation in excess of 10 percent for the Veteran’s lumbar spine disability is not warranted. Objective findings from the Veteran's VA examinations are consistent with a 10 percent evaluation, but no greater. Forward flexion, even with pain and after repetitive testing, is greater than 60 degrees, the combined range of motion of the lumbar spine is greater than 120 degrees, and there is no ankylosis of the lumbar spine. Deluca, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59. In reaching this conclusion, the Board has not overlooked the Veteran's statements with regard to the severity of his disability during this period. However, for the same reasons stated in the previous section, the Veteran's VA examinations have been accorded greater probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). 2. Entitlement to a rating in excess of 10 percent for a right knee disability The Veteran was awarded service connection for iliotibial band syndrome of the right knee in an April 2014 rating decision, rated at 0 percent, effective June 20, 2013. The Veteran was then granted an increased 10 percent rating in a November 2015 rating decision, effective back to original grant date of June 20, 2013. During his lifetime, the Veteran contended that his right knee disability was more severe than its 10 percent rating. In this case, as no diagnostic code specifically pertains to iliotibial band syndrome, the Veteran’s right knee is currently rated under Diagnostic Code 5257. While there are multiple diagnostic codes pertaining to the knee, Diagnostic Code 5258 does not apply, as the Veteran has not been found to have dislocated semilunar cartilage; Diagnostic Code 5256 does not apply, as the Veteran has not been found to have ankylosis of the knee; Diagnostic Code 5262 does not apply, as the Veteran has not been found to have impairment of the tibia and fibula; and Diagnostic Code 5263 does not apply, as the Veteran has not been found to have any symptomatology with regards to the genu recurvatum. Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability. A 20 percent rating is assigned when there is moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the knee to 60 degrees, a 10 percent rating will be assigned for limitation of flexion of the knee to 45 degrees, a 20 percent rating will be assigned for limitation of flexion of the knee to 30 degrees, and a 30 percent rating will be assigned for limitation of flexion of the knee to 15 degrees. Under Diagnostic Code 5261, a 10 percent disability rating is warranted for knee extension limited to 10 degrees, a 20 percent disability rating is assigned for extension limited to 15 degrees, a 30 percent disability rating is assigned for extension limited to 20 degrees, a 40 percent disability rating is assigned for extension limited to 30 degrees, and a 50 percent disability rating is assigned for extension limited to 45 degrees. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. For the reasons explained below, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent. During the Veteran’s discharge examination in June 2013, he reported difficulty running, standing, and performing prolonged walking, with stiffness and pain. The Veteran’s flexion measured 140 degrees and extension measured 0 degrees with localized tenderness. The examiner noted that there was no functional loss or additional loss of motion after repetitive use. The Veteran’s knee was found to be stable with no subluxation or dislocation. The Veteran was noted to have shin splints. See C&P Exam, dated June 12, 2013. The Veteran was also afforded an August 2017 VA Examination. He reported pain, stiffness, and swelling of the knee. Additionally, he reported that following prolonged use, his knee pops out of place. The Veteran’s flexion measured 140 degrees and extension measured 0 degrees with localized tenderness and palpitation. The Veteran’s knee stability was found to be normal without any evidence of dislocation. On repetitive use testing there was no loss in range of motion. The examiner indicated that there was no evidence of pain on passive range of motion testing and non-weight bearing testing of the right knee. Regarding functional impairment, the examiner noted that the Veteran’s knee condition limited his ability to perform repetitive bending of the knee, as well as squatting, kneeling, stooping, crawling or climbing; as well as the need for restricted amount of time he could spend standing, walking or running before needing a break. See C&P Examination, dated September 12, 2017. The Veteran’s VA treatment records collectively indicate that he complained of, and was treated for pain of the right knee. Based on the evidence of record, the Board finds that an evaluation in excess of 10 percent for the Veteran’s right knee disability is not warranted. Objective findings from the Veteran’s VA examinations are consistent with a 10 percent evaluation, but no greater. With respect to granting an increased rating under Diagnostic Code 5257, the weight of the evidence does not demonstrate that the Veteran had lateral instability or recurrent subluxation of the right knee. While the Veteran reported knee would occasionally pop out of place and feeling of instability, the VA examination reports in June 2013 and August 2017 show that testing for instability and recurrent subluxation was negative. The June 2013 and August 2017 VA examination reports show that the examiner performed joint stability testing which was normal and no anterior, posterior, medial or lateral instability was found. While the Board finds his contentions competent and credible, the Board finds more probative the clinical testing conducted by medical professionals specifically to determine the presence and extent of lateral instability. Based on the results of that testing, which are uniformly negative throughout the appeal period, the Board finds that there is no lateral instability or recurrent subluxation of the right knee during the rating period on appeal, and a separate rating under Diagnostic Code 5257 is not warranted. With respect to granting an increased rating under Diagnostic Code 5260 or 5261, there is no evidence of record reflecting that the Veteran's right knee has a limitation of flexion to 30 degrees or a limitation of extension to 15 degrees, as needed for an increased evaluation under these diagnostic codes. As such, an increased rating cannot be assigned for the right knee under Diagnostic Code 5260 or 5261. In finding that a higher evaluation is not warranted, the Board has considered the Veteran's subjective complaints, as well as whether there is additional functional loss due to flare-ups, fatigability, incoordination, and pain on movement per 38 C.F.R. §§ 4.40 and 4.45. DeLuca, 8 Vet. App. at 206-07. These factors have been taken into consideration in awarding the 10 percent disability evaluations pursuant to Diagnostic Codes 5257, 5260 and 5261. While the Board acknowledges that the Veteran was restricted amount of time he could spend standing, walking or running before needing a break, on range of motion testing there was no change on repetitive testing due to painful motion or weakness. The Veteran's flexion was not limited to 30 degrees or more in either knee, even taking into account pain on motion and/or the criteria outlined in DeLuca. See Diagnostic Code 5260; DeLuca, 8 Vet. App. at 206-7. Likewise, the Veteran's extension was not limited to 15 degrees in either knee, taking into account pain on motion and/or the criteria outlined in DeLuca. Accordingly, under this theory of entitlement, the Veteran is not entitled to a disability rating in excess of 10 percent. In reaching this conclusion, the Board has not overlooked the Veteran’s statements with regard to the severity of his disability during this period. However, for the same reasons stated in the previous sections, the Veteran’s VA examinations have been accorded greater probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). 3. Entitlement to a rating in excess of 10 percent for a right ankle disability The Veteran was awarded service connection for a right ankle disability in an April 2014 rating decision, rated at 0 percent, effective June 20, 2013. The Veteran was then granted an increased 10 percent rating in a November 2015 rating decision, effective back to original grant date of June 20, 2013. During his lifetime, the Veteran contended that his right ankle disability was more severe than its 10 percent rating. The Veteran's right ankle disability has been evaluated under Diagnostic Code 5271. Under Diagnostic Code 5271, a 10 percent disability rating is warranted when limitation of motion of the ankle is moderate. A maximum disability rating of 20 percent is available under Diagnostic Code 5271 when the limitation of motion of the ankle is marked. Normal ankle motion is dorsiflexion to 20 degrees and plantar flexion to 45 degrees. For the reasons explained below, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent. With regard to the Veteran’s ankle, both the June 2013 and September 2017 noted normal range of motion, with plantar flexion measured 45 degrees and dorsiflexion measured 20 degrees; there was no loss of range of motion after repetitive use. While the Veteran reported pain on movement during both examinations, only the September 2017 examiner found objective evidence of pain on motion. Regarding functional impairment, the September 2017 examiner stated that the Veteran’s ankle disability limited his ability to stand, walk, or run for long periods of time before needing a break. Both examiners indicated that muscle strength testing was normal, with no evidence of atrophy or joint instability. See C&P Exam, dated June 12, 2013 and C&P Exam, dated September 12, 2017. Based on the evidence of record, the Board finds that an evaluation in excess of 10 percent for the Veteran’s right ankle disability is not warranted. Objective findings from the Veteran's VA examinations are consistent with a 10 percent evaluation, but no greater. Even after repetitive use, while the Veteran suffered from some pain on movement, his ankle motion was noted to be normal with dorsiflexion to 20 degrees and plantar flexion to 45 degrees. Deluca, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59. In reaching this conclusion, the Board has not overlooked the Veteran’s statements with regard to the severity of his disability during this period. However, for the same reasons stated in the previous sections, the Veteran’s VA examinations have been accorded greater probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Marsh II, Associate Counsel