Citation Nr: 18152261 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 10-16 588 DATE: November 21, 2018 ORDER An initial rating higher than 10 percent for lumbar spine degenerative joint disease (DJD) with intervertebral disc syndrome (IVDS) is denied. An initial rating higher than 10 percent for left knee DJD is denied. An initial rating higher than 10 percent for right knee DJD is denied. An initial rating higher than 10 percent for right ankle tendonitis is denied. FINDINGS OF FACT 1. Lumbar spine DJD and IVDS is not manifested by forward flexion of 60 degrees or less, combined range of motion of 120 degrees or less, or abnormal gait or spinal contour. 2. Left knee DJD is not manifested by flexion limited to 30 degrees, extension limited to 10 degrees, or instability. 3. Right knee DJD is not manifested by flexion limited to 30 degrees, extension limited to 10 degrees, or instability. 4. Right ankle tendonitis is manifested by 20 degrees of dorsiflexion and 40 degrees of plantar flexion. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 10 percent for lumbar spine DJD and IVDS have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 2. The criteria for an initial rating higher than 10 percent for left knee DJD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5260. 3. The criteria for an initial rating higher than 10 percent for right knee DJD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5260. 4. The criteria for an initial rating higher than 10 percent for right ankle tendonitis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Marine Corps from January 1978 to January 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2008 rating decision. The Board denied the claims in a June 2016 decision. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court), which remanded the matter back to the Board pursuant to a June 2017 Joint Motion for Remand (JMR) filed by the parties. The Board then remanded the matter in August 2017 for additional development. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment). The June 2017 JMR stated that the Board relied on inadequate VA examinations from December 2007. Specifically, during those examinations, the Veteran reported flare-ups resulting in “55 percent” impairment of the spine and “35 to 40 percent” impairment of the joints. The JMR stated that it was unclear whether these percentages referred to limitation of motion or functional impairment generally. Also, if they referred to general impairment, it was not clear what the context or point of reference was. While the Board acknowledges these ambiguities, the December 2007 VA examination reports show the Veteran reported flare-ups occurring every 1 or 2 months and lasting 1 or 2 days. In other words, flare-ups averaged about 1 day per month, and the Board finds that, irrespective of the level of impairment associated with flare-ups, the flare-ups themselves are too infrequent to warrant a higher rating. Cf. Voerth v. West, 13 Vet. App. 117 (1999) (a person who experiences a worsened condition only for a few days out of a year is simply less impaired than someone who suffers from the worsened condition for weeks or months). In accordance with the JMR, VA obtained new examinations in October 2017, during which the Veteran denied any flare-ups of the ankle or knees. Flare-ups of the spine were manifested by radiculopathy, described by the Veteran as an intermittent pain in the right leg, with no mention of reduced range of motion of the spine. The examiner also stated that he could not provide further clarification regarding the percentages of impairment during flare-ups noted in the December 2007 examinations unless the Veteran was examined during the flare-up. Given that the Veteran denied any current flare-ups of those disabilities, the Board accepts the examiner’s explanation that further clarification cannot be provided. 1. Lumbar spine DJD with IVDS The Veteran is currently assigned a 10 percent rating for this disability under Diagnostic Code (DC) 5243-5242. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 5242 is part of the General Rating Formula for Diseases and Injuries of the Spine found in 38 C.F.R. § 4.71a. Under that formula, a higher 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or when combined range of motion is not greater than 120 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour. Note (2) of the formula states that combined range of motion includes forward flexion, extension, left and right lateral flexion, and left and right rotation. The December 2007 VA examination documented 90 degrees of forward flexion and 240 degrees of combined range of motion. There was no pain present and no change with repetitive testing. No spasm or guarding was present. As noted above, the Veteran reported a history of flare-ups averaging 1 day a month. The October 2017 VA examination documented 75 degrees of forward flexion and 220 degrees of combined range of motion. There was no pain present and no change with repetitive testing. No spasm or guarding was present. The Veteran did not report any flare-ups related to the spine. Collectively, these examination reports show that flexion of 60 degrees or less and combined range of motion of 120 degrees or less were not present. The Veteran’s outpatient records from the appeal period include references to back pain but do not contain any findings relating to the rating criteria. They also do not show guarding or spasms resulting in any abnormal gait or spinal contour. Therefore, a higher 20 percent rating is not warranted. It follows, that the criteria for an even higher rating is not approximated either. The General Rating Formula also provides that separate ratings will be assigned for neurologic abnormalities associated with a spine disability. Notably, the Veteran has already been assigned a separate 10 percent rating for right lower extremity radiculopathy under 38 C.F.R. § 4.124a, DC 8520. The 10 percent rating under DC 8520 is for “mild” incomplete paralysis of the sciatic nerve. A 20 percent rating is assigned when “moderate” incomplete paralysis is present. Descriptive terms such as mild and moderate are not defined in the rating schedule, and the Board must evaluate the evidence of record and reach a decision that is equitable and just. See 38 C.F.R. § 4.6. In rating peripheral nerve injuries, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The Board finds that a higher 20 percent rating is not warranted for right lower extremity radiculopathy. The initial 10 percent rating was based on the October 2017 VA examination, which noted mild intermittent pain, mild paresthesias, and mild numbness. The examiner assessed an overall mild level of radiculopathy. Although the examiner’s characterizations are not dispositive, the Board nonetheless finds them probative. When viewed alongside the normal strength, reflexes and sensation documented as part of the examination, as well as the normal findings from the December 2007 examination, the overall weight of the evidence is against finding moderate incomplete paralysis in the right lower extremity. Neither VA examination documented any reported symptoms or objective findings of a neurologic disability in the left lower extremity and a separate rating is not warranted for it. Similarly, during both examinations, the Veteran denied a history of incontinence or other neurologic abnormalities. Finally, the Board has considered a rating under DC 5243, which includes the Formula for Rating IVDS Based on Incapacitating Episodes. However, Note (1) of that formula defines incapacitating episodes as periods of acute signs and symptoms requiring bed rest prescribed by a physician. There is no evidence that the Veteran has received any such prescriptions, and therefore a rating under this formula is not appropriate. 2. Left knee DJD 3. Right knee DJD The evidence and applicable law for the Veteran’s left and right knee disabilities are identical and they will be discussed together. The Veteran is currently assigned 10 percent ratings for his knee disability under DC 5010-5260. DC 5010 addresses arthritis and provides that the affect joint should be rated based on limitation of motion. If limited motion is not present, additional criteria are applicable. However, the Veteran’s knees do demonstrate some limitation of motion. DC 5260 addresses limitation of flexion. A higher 20 percent rating is assigned when flexion is limited to 30 degrees. Here, VA examinations in December 2007 and October 2017 noted flexion of 130 degrees and 100 degrees, respectively, for both knees. There was no pain and no additional limitation with repetitive testing. Notably, outpatient records from December 2008 noted “less than full” range of motion but specific measurements were not recorded. Nevertheless, the criteria for a higher 20 percent rating for limited flexion are not met. DC 5261 addresses limitation of extension. A separate 10 percent rating can be assigned when extension is limited to 10 degrees. The two VA examinations both documented full extension (0 degrees) without pain or additional limitation with repetitive testing. Therefore, a separate rating for extension is not warranted. DC 5257 addresses recurrent subluxation or lateral instability. However, the Veteran denied a history of any knee instability in December 2007, December 2008 and October 2017. Both knees were found to be objectively stable during the two VA examinations. Therefore, a separate rating under DC 5257 is not appropriate. DC 5258 provides a single 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. DC 5259 provides a 10 percent rating for symptomatic removal of semilunar cartilage. The Veteran, however, has not been diagnosed with a cartilage-related disability of the knee. He also denied any history of locking or effusion. Therefore, ratings under these diagnostic codes are not warranted. 4. Right ankle tendonitis The Veteran is currently assigned a 10 percent rating for this disability under DC 5271, which provides a 10 percent rating for “moderate” limitation of motion of the ankle and a 20 percent rating for “marked” limitation of motion. As noted above, these descriptive terms are not defined and the Board must evaluate the evidence of record and reach a decision that is equitable and just. The December 2007 and October 2017 VA examinations recorded the same range of motion findings. Dorsiflexion was 20 degrees and plantar flexion was 40 degrees. There was no pain present and no additional limitation with repetitive testing. Normal ankle range of motion is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. See 38 C.F.R. § 4.71a, Plate II. The Board finds that the Veteran’s plantar flexion limited to 5 degrees less than normal, alone, does not equate to “marked” limitation of motion as contemplated by the rating schedule. Notably, the Veteran reported instability and “giving way” of the right ankle during the December 2007 examination. Despite such, no instability was found on objective examination at that time or later in 2017. In addition, strength was normal in the joint. Accepting the Veteran’s reports regarding ankle instability as true, instability is not specifically addressed in VA’s rating schedule for the ankle, and the Board has considered whether an extraschedular rating is warranted. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Under Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub. nom. Thun v. Shinseki, 573 F.3d 1366 (Fed Cir. 2009), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. A review of the evidence, including the Veteran’s outpatient records, does not show that he was ever hospitalized for his ankle, let alone “frequently” hospitalized. There is also no evidence that the ankle disability caused marked interference with employment, or any interference beyond that inherent in the current rating. 38 C.F.R. § 4.1 (the degrees of disability specified are considered adequate to compensable for considerable loss of working time). Because the evidence does not show frequent hospitalization or marked interference with employment, referral for an extraschedular rating is not warranted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shamil Patel, Counsel