Citation Nr: 18151886 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 10-41 312 DATE: November 20, 2018 ORDER A 40 percent rating for a lumbar spine disability is granted from December 1, 2008. An initial rating in excess of 10 percent for a right knee disability is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s lumbar spine disability manifested in severe pain and limitation of motion, with additional functional loss due to pain, weakness and fatigue most closely approximating limitations of flexion to 30 degrees or less during flare-ups. 2. The Veteran’s spine was not ankylosed, nor was the Veteran prescribed bed rest by a physician for at least six weeks during a twelve-month period. 3. For the entire period on appeal, the Veteran’s right knee disability was manifested by tenderness to palpation, occasional effusion and crepitus, subjective complaints of pain with flare-ups occurring once a month, lasting one to two days, and resulting in increased knee pain, worsening limp, swelling, and inability to kneel; dislocation, instability or subluxation, ankylosis, malunion or nonunion of the tibia and fibula, or genu recurvatum has not been shown. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a disability rating of 40 percent for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5239 (2017). 2. The criteria for initial rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.40, 4.45, 4.59, 4.71a, DC’s 5256 through 5263 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1987 to June 1997, and from November 1998 to November 2008. As an initial matter, the Board observes that a claim for a total disability rating based on individual unemployability (TDIU) is part of an initial rating claim when it is expressly raised by the Veteran, or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Board finds that a claim for TDIU has not been raised either expressly by the Veteran or by the record. Indeed, the medical evidence demonstrates the Veteran is currently working. See the October 2017 VA examiner’s report. Increased Rating Disability ratings are determined by the criteria set forth in the VA Schedule for Rating Disabilities, and are intended to represent the average impairment of earning capacity resulting from the disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.40. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id at 38. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45, pertaining to functional impairment. The Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995). These determinations are, if feasible, to be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Id. 1. Lumbar Spine Disability A brief discussion of the procedural history in this case is warranted. In the May 2009 rating decision the Veteran was granted service connection for a lumbar spine disability with an initial rating of 20 percent, effective the date of claim, December 1, 2008. In the December 2009 notice of disagreement, the Veteran indicated he should have been entitled to a higher disability rating for his lumbar spine disability, and indicated he was seeking a rating of 40 percent in his October 2010 VA Form 9. The June 2018 supplemental statement of the case granted an increase to 40 percent, effective the date of the most recent VA back examination, October 24, 2017. In the November 2018 Appellate Brief, the Veteran disagreed only with the effective date of the 40 percent disability rating for his lumbar spine disability. Therefore, the Board of Veterans’ Appeals (Board) has characterized the issue on appeal for the lumbar spine disability as a claim for entitlement to a disability rating in excess of 20 percent prior to October 24, 2017. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, an evaluation of 20 percent is warranted 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 is 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, DC 5235-5243. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. Intervertebral disc syndrome (IVDS) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 20 percent rating when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. The Veteran was afforded a VA back examination in April 2009 and February 2016. The Board found both those examinations inadequate for evaluating the Veteran’s lumbar spine disability because the examiners did not address functional impairment due to pain, and remanded the issue for further development in compliance with the Court of Appeals for Veterans Claims (Court) holding in Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59. The Board will consider the Veteran’s subjective reports of the severity of his lumbar spine disability obtained during the April 2009 and February 2016 VA examinations as relevant to the evaluation of his disability over the course of the period on appeal. During the April 2009 VA back examination, the Veteran reported back pain, decreased mobility, problems with lifting and carrying, and difficulty in reaching. He also reported numbness, fatigue, decreased motion, stiffness, weakness, and spasms related to his lumbar spine disability. The Veteran described his back pain as constant, ranging from aching to stabbing pain, and with increased pain in the morning and with bending or twisting movements. Additionally, the Veteran reported having severe flare-ups on a weekly basis, that would last for hours. He indicated he was able to move during a flare-up, but only with severe pain, and that he could not bend to put on socks or pick up his child. The examiner observed objective pain with motion, tenderness, and weakness. On active range of motion, flexion was measured to 70 degrees, with no additional limitation after three repetitions. In the January 2012 VA neurosurgery consult, the Veteran reported constant chronic lower back pain that had been severe since 2002, and lasted all day. He described the pain as sharp, stabbing, aching, throbbing, and shooting. In a February 2014 primary care note, the Veteran reported his chronic low back pain had remained the same from previous evaluations. The Veteran was afforded another VA back examination in February 2016. For the Veteran’s initial range of motion, flexion was measured at 60 degrees. The examiner noted pain on exam, which he indicated resulted in functional loss, but did not quantify any additional functional impairment. The examiner indicated he could not say without mere speculation whether pain, weakness, fatigability or incoordination would significantly limit the Veteran’s functional ability during a flare up or with repeated use over time. Pursuant to the August 2017 Board remand, the Veteran underwent another VA back examination in October 2017. The Veteran reported constant chronic daily pain, rated as a four on a scale of one to ten. He indicated his spouse had to put on his socks and shoes. The Veteran reported his symptoms were more severe with cold or damp weather, and with physical activity such as prolonged standing, lifting items, walking or running. The Veteran reported weekly flare-ups, rating the pain as an eight to nine, and lasting one to two days. The Veteran reported additional functional loss as pain and stiffness of his lumbar spine during a flare-up. The examiner noted a diagnosis of IVDS, but indicated the Veteran had not had any incapacitating episodes over the previous 12 months. Flexion on initial range of motion was measured to 20 degrees, and 15 degrees after three repetitions. The examiner observed objective evidence of pain with weight bearing. The examiner noted pain significantly limited functional ability with repeated use over time. Additionally, the examiner indicated that the Veteran declined to perform passive, non-weightbearing range of motion and repetitive use testing due to worsening back pain from the initial range of motion, weightbearing testing. The examiner opined that the Veteran’s report of functional loss due to pain is clinically consistent with a decrease in range of motion with repeated use or during a flare-up, but indicated there were too many variables to quantify the anticipated additional functional loss. In consideration of the entire record, including medical and lay evidence, the Board finds the Veteran is entitled to a higher disability rating of 40 percent for his lumbar spine disability from December 1, 2008. In reaching this conclusion, the Board finds probative value in the Veteran’s statements over the course of the period on appeal regarding the severity of his low back disability, the frequency and duration of flare-ups, and functional loss experienced due to pain. The Veteran is competent to report on factual matters of which he had firsthand knowledge, such as experiencing chronic and severe pain due to his back disability that results in additional functional impairment during a flare-up and on repetitive use, and the Board finds him credible in this regard. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). For the entire period on appeal, the Board finds that the Veteran has consistently reported severe pain due to his back disability that significantly limits his functional ability and most closely approximates limitation of flexion to 30 degrees or less during flare-ups, which he reports occur weekly and last one to two days. Since a 40 percent disability rating is the highest evaluation possible for limitation of motion, further consideration of functional loss due to pain under 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995) is not required. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, there is no indication that his flare-ups manifest in unfavorable ankylosis of the entire thoracolumbar spine or entire spine, warranting a higher 50 percent or 100 percent rating, and the Veteran does not so attest. The Board adds that VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. See Note (1) of the General Rating Formula. In the present case, the evidence demonstrates that the Veteran has radiculopathy of both lower extremities associated with his lumbar spine disability. During the appeal period, the AOJ recognized this association and awarded service connection for bilateral radiculopathy of the lower extremities (sciatic nerve). See a June 2018 rating decision (awarding 10 percent ratings for each lower extremity, effective December 1, 2008). The medical evidence of record does not disclose any distinct neurological disabilities associated with the Veteran’s service-connected lumbar spine disability which have not already been separately rated by the AOJ. Resolving all doubt in favor of the Veteran, the Board finds that he is entitled to a 40 percent disability rating for his lumbar spine disability from December 1, 2008. 2. Right Knee Disability In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.2. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating service-connected disabilities. 38 C.F.R. § 4.14. Knee disabilities are unique, as they are one of a few orthopedic disabilities in which multiple ratings may be assigned based on separate and distinct manifestations of the same disability. Under 38 C.F.R. § 4.71a, DC 5257, recurrent subluxation or lateral instability of the knee which is slight, moderate, or severe is evaluated at 10, 20, or 30 percent, respectively. Under DC 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. The term “and” indicates that dislocated semilunar cartilage and all three criteria must be demonstrated. Camacho v. Nicholson, 21 Vet. App. 360 (2007). Diagnostic Code 5259 provides for a 10 percent rating, the maximum allowable, for symptoms due to the removal of semilunar cartilage. Under DC 5260, ratings of 0, 10, 20, or 30 percent are assigned where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively. Under DC 5261, ratings of 0, 10, 20, 30, 40, or 50 percent are assigned for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. The Veteran contends he should be entitled to a higher initial rating due to pain associated with his right knee disability, diagnosed as residuals of a meniscectomy. See December 2009 VA Form 21-4138, and October 2010 VA Form 9. The Veteran’s right knee disability is currently rated at 10 percent, analogously for symptomatic removal of semilunar cartilage, under DC 5299-5259. The VA’s General Counsel has held that DC 5259 requires consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of semilunar cartilage may result in complications producing loss of motion. VAOPGCPREC 9-98 (August 14, 1998). In this case, the Veteran’s right knee disability is evaluated analogously under symptomatic removal of semilunar cartilage, DC 5299-5259. Here, the Board observes that the 10 percent disability rating is based on symptoms of pain with limitation of motion of the knee joint (that would be otherwise noncompensable under Diagnostic Codes 5260 or 5261). See May 2009 rating decision. As with the Veteran’s lumbar spine disability, the Board found the April 2009 VA examination inadequate for evaluating the Veteran’s right knee disability because the examiner did not sufficiently address functional impairment due to pain. 38 C.F.R. § 4.59; Correia, 28 Vet. App. at 170. However, the Veteran’s subjective reports of the severity of his right knee disability over the course of the period on appeal, including at the prior April 2009 VA examination, are discussed below. In the August 2008 VA Form 21-526, the Veteran reported he had continued swelling and pain in his right knee after his torn meniscus was surgically repaired in service. During the April 2009 VA knee examination, the Veteran reported intermittent pain, stiffness, weakness, repeated effusions, and popping in his right knee. The VA examiner reported the right knee did not demonstrate deformity, giving way, instability, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking episodes, clicks, or grinding. On examination, the examiner noted crepitus and tenderness, and meniscus abnormality (surgically absent). The right knee range of motion measurement with active motion was measured to 95 degrees flexion, and normal extension. The examiner reported there was no additional limitation after three repetitions, but observed that there was objective evidence of pain following repetitive motion. In June 2009 VA treatment records, the Veteran’s right knee range of motion for flexion and extension was measured as normal, with negative anterior and posterior Drawer (for cruciate ligament rupture) tests. The provider noted tenderness to palpation of the right infrapatellar bursa, and indicated all other knee bursae were nontender. The Veteran reported chronic right knee pain in a February 2014 VA physician note. In June 2016 private treatment records, the Veteran indicated he sustained an acute injury to his right knee that resulted in decreased range of motion and pain. The June 2016 radiology report by Dr. S.W. found no evidence of fracture, dislocation, osseous lesion, joint effusion, or focal soft tissue abnormality. Later in June 2016, the Veteran sought treatment for his right knee pain from orthopedic surgeon, Dr. A.W. Upon examination, Dr. A.W. reported that crepitus and grinding were not demonstrated, moderate swelling of the right knee was observed, as well as tenderness, and range of motion was limited to 120 degrees flexion due to effusion. In an August 2016 VA physician note, the Veteran complained of right knee pain and swelling. The provider observed the Veteran had swelling and mild tenderness of the anterior right knee, but no gross instability or meniscal tear demonstrated by McMurray’s test. Pursuant to the August 2017 Board remand, the Veteran underwent another VA knee examination in October 2017. The Veteran reported increased pain and swelling in his right knee upon exertion, and that he is no longer able to kneel or get down on his knees due to pain. He reported having constant pain over the medial and lateral joint line, describing the pain as a one to two on a scale of zero to ten, and indicated he treated his right knee symptoms with elevation, or ice and heat applications. The Veteran indicated he experienced flare-ups once a month, lasting one to two days, and rated the pain as a six. The Veteran described flare-ups as increased knee pain, worsening limp and swelling. The October 2017 VA examiner measured initial range of motion flexion to 95 degrees, with extension to 0 degrees. The functional loss noted following three repetitions was flexion measured to 75 degrees. Passive range of motion, non-weightbearing was measured at 100 degrees flexion, with extension to 0 degrees. The examiner noted the Veteran declined to perform weightbearing baseline or repetitive use range of motion testing due to worsening pain. The examiner indicated the Veteran did not demonstrate ankylosis of the right knee, subluxation or lateral instability, effusion, or patellar dislocation; nor did he demonstrate any tibial or fibular impairment. The examiner opined that the Veteran’s report of functional loss due to pain is clinically consistent with a possible decrease in range of motion from repeated use or during a flare-up, but indicated there were too many variables to quantify the anticipated additional functional loss. The Court has held that, in order to be adequate, a VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the Board finds that the October 2017 VA knee examination, considered together and in context of the other evidence of record, satisfies Correia and provides sufficient information upon which to base a decision. While the Veteran declined to perform weightbearing baseline or repetitive use range of motion testing during the October 2017 VA knee examination, the Board has considered the range of motion measurements that were obtained throughout the period on appeal. Additionally, the Board has considered the Veteran’s report of functional impairment due to pain, which he indicated resulted in an inability to kneel. The Veteran’s range of motion findings demonstrate an ability to forward flex and extend at levels that would be noncompensable under 5260 or 5261 without consideration of pain. In determining whether a rating under 5260 or 5261 can be “elevated” due to the effects of pain under Deluca factors, the Board finds that at worst, his pain can cause limitation of flexion to 45 degrees, given his assertion he is unable to kneel. Indeed, such would entitle the Veteran to a 10 percent rating under 5260, so long as this functional loss due to pain was considered as part of the rating. Because a 10 percent rating is already in effect under Diagnostic Code 5259 that considers the Veteran’s pain symptoms as well as limitation of motion due to that pain, a separate 10 percent rating under Diagnostic Code 5260 is not warranted, as to award a separate rating would be compensating symptoms of pain with limitation of motion twice. Had the Veteran’s limitation of motion been so severe as to warrant a compensable rating under 5260 or 5261 without elevation due to pain symptoms under Deluca, separate 10 percent ratings under both 5259 and the limitation of motion codes may have been warranted, with limitation of motion rated under 5260 or 5261, and symptoms of pain under 5259. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). Such is not the case for this Veteran. The evidence of record also does not support a finding that the Veteran’s flexion is limited to 30 degrees or less, even in considering the effects of pain, which would warrant the switch of diagnostic code, and the assignment of a disability rating greater than 10 percent under DC 5260. Additionally, limitation of extension has not been demonstrated or asserted by the Veteran. The Board observes that the Veteran’s representative asserted the Veteran’s knee instability alters the biomechanics of the knee. See May 2017 Appellate Brief. In a subsequent November 1, 2018 Brief, the Veteran’s representative also stipulated that the Veteran’s knee disability is currently rated 10 percent disabling under DC 5257 based on instability and/or subluxation. Pertinently however, the evidence of record does not indicate the Veteran has reported right knee instability to VA or his physicians at any time during the period on appeal, nor has right knee instability been documented in any of the medical assessments of record, which specifically include assessments for knee instability. In addition, the Veteran has not been rated under 5257 [but rather 5259], as his representative stipulates. The Board accordingly finds that DC 5257 is not applicable in this case. Additionally, the Board observes that the Veteran’s representative noted the Veteran should be awarded a separate compensable rating for pain under 38 C.F.R. § 4.71a, DC 5003. See November 2018 Appellate Brief. Diagnostic Code 5003 is assigned for degenerative arthritis established by X-ray findings. The October 2017 VA examination indicated that imaging studies of the right knee were performed, and degenerative or traumatic arthritis was not documented; therefore, DC 5003 is not applicable in this case. To the extent it is argued that a separate rating is warranted based on limitation of motion, the Board has discussed why such is not permissible above. A separate higher rating is not warranted under DC 5258, as there is no evidence of dislocation of semilunar cartilage with episodes of locking, pain, and effusion. While the evidence of record demonstrates the Veteran has right knee pain and occasional effusion, all required criteria under DC 5258 are not met. Additionally, a higher rating is not warranted under any other potentially applicable provision because the evidence of record does not demonstrate any right knee ankylosis, tibia of fibular impairment, or genu recurvatum. 38 C.F.R. § 4.71a, DC’s 5256, 5262, 5263. The Board has found no section that provides a basis upon which to assign an increased or additional separate disability rating for the Veteran’s right knee disability. Accordingly, the Board finds the Veteran is not entitled to a higher rating at any time for his right knee disability, and the claim is denied. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Mask, Associate Counsel