Citation Nr: 18153325 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-29 413 DATE: November 27, 2018 ORDER Entitlement to a rating of 40 percent for the back disability for the period between November 15, 2012 and March 9, 2016 is denied. Entitlement to a rating greater than 10 percent for internal derangement of the right knee (right knee disability), manifested by limitation of flexion, is denied. Entitlement to a separate compensable rating of 10 percent for a right knee disability, manifested by limitation of extension, is granted effective June 28, 2016. Entitlement to a separate compensable rating of 20 percent for a symptomatic, dislocated right meniscus is granted effective November 15, 2012. REFERRED ISSUE The Veteran applied for service connection for stomach issues, secondary to pain medication for his service connected musculoskeletal disabilities. This application was submitted in February 2016. No development occurred on this application, to include the issuance of a rating decision. This matter is referred to the Agency of Original Jurisdiction (AOJ) for further development. FINDINGS OF FACT 1. The probative evidence of record demonstrates that from November 15, 2012 to February 15, 2016, the Veteran’s back disability was manifested by painful movement to 70 degrees of forward flexion and 215 degrees total range of motion, but without guarding or muscle spasms that would alter his gait. From February 16, 2016 to March 9, 2016, his forward flexion decreased to 60 degrees. There is no evidence of incapacitating episodes. 2. The Veteran’s service-connected right knee disability has been manifested by painful flexion to 45 degrees, with flare-ups of pain and difficulties in standing and walking. 3. Since June 28, 2016, Veteran’s service-connected right knee disability has been manifested by painful extension to 10 degrees, with flare-ups of pain and difficulties in standing and walking 4. The probative evidence of record demonstrates that the Veteran has a dislocated and symptomatic meniscus. CONCLUSIONS OF LAW 1. From November 15, 2012 to February 15, 2016, the Veteran met the criteria for a 10 percent rating for spondylosis of the lumbar spine, but no higher. From Febr 16, 2016 to March 8, 2016, the Veteran met the criteria for a 20 percent rating for spondylosis of the lumbar spine, but no higher. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010, 5243. 2. The criteria for a rating of 10 percent, but no higher, for a right knee disability, manifested by limited flexion, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260. 3. The criteria for a rating of 10 percent, but no higher, for a right knee disability, manifested by limited extension, are met effective June 28, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5261. 4. The criteria for a separate compensable rating of 20 percent, but no higher, for a torn meniscus of the right knee is met effective November 15, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marines from January 2000 to June 2002; from February 2003 to August 2003; and from June 2004 to May 2005. The Veteran applied for an increase for his service-connected back and right knee disabilities in November 2012. These two issues were denied an increase through a rating decision dated December 2013 and again in July 2014. The Veteran filed a notice of disagreement on these claims. Specifically, he stated that he desired a 20 percent rating for his back disability and a 30 percent rating for his right knee disability. The Veteran also contended that his right lower extremity radiculopathy was second to his service-connected disabilities. Prior to the issuance of a Statement of the Case (SOC) for these claims and also prior to the issues reaching the Board for an appeal, the AOJ issued a May 2016 rating decision that granted an increase to the Veteran’s back claim and granted service connection for the right lower extremity radiculopathy. The AOJ then issued separate SOCs for rating of the back disability (because a 100 percent rating was not granted) and the rating for the right knee disability. The Veteran filed an Appeal to the Board in June 2016 stating that he disagreed with the rating of the knee condition. He filed a separate appeal for the back rating, stating the following: “the VA failed to consider [the] degree of disability as the proper date of claim [is] February 27, 2009.” As was further explained in the subsequent statement from the Veteran’s representative, the Veteran is not seeking an earlier effective date for the grant of service connection for his spine. Instead, he is seeking a 40 percent rating for his spine, with an effective date in November 2012, when he filed his claim for an increase. Therefore, while the Veteran’s representative requested a remand for the AOJ to evaluate this assertion, the Board finds that this is not necessary. The RO has already addressed and adjudicated an increased rating for the Veteran’s spine from the date of his claim in November 2012. Therefore, the Board may proceed with this appeal. Furthermore, while the Veteran’s representative requested a remand for the right knee disability appeal due to the submission of the June 2016 Disability Benefits Questionnaire, the Board finds that this is also not needed. Because the Veteran filed his VA Form 9 in June 2016, all evidence submitted by the Veteran after that time is considered as waiving original jurisdiction by the AOJ for that evidence. As such, the Board may proceed. INCREASED RATINGS CLAIMS The Veteran claims that he is entitled a rating of 40 percent for his back disability from his application date, November 15, 2012, until the date of his 40 percent rating, March 9, 2016. Further, the Veteran contends that he is entitled to a rating of 30 percent for his right knee disability. Disability evaluations are determined by application of the criteria set forth in the 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. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that “staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). No such consideration is warranted in this case because the Veteran’s symptomology has remained consistently below what is required for the next higher evaluation. In addition to the general criteria for increased ratings claims, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when her symptoms are most prevalent (“flare-ups”) due to the extent of her pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Further, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). 1. Evaluation of the back disability from November 15, 2012 to March 8, 2016 The Veteran is seeking a rating higher than 10 percent for his service-connected back disability prior to February 16, 2016 and a 20 percent rating from February 16, 2016 to March 8, 2016, which is evaluated under DC 5237 and the General Rating Formula for Diseases and Injuries of the Spine. To warrant a higher schedular rating, the evidence must show the Veteran’s lumbar spine is manifested by forward flexion limited to 60 degrees or less, total range of motion 120 degrees or less, or favorable or unfavorable ankylosis of the entire thoracolumbar spine. The Veteran sought physical therapy for his back in February 2013. He reported constant pain in his back, at 2-3 on a scale of 10. He took medication for breakthroughs of pain. His range of motion was not formally measured, but flexion and extension range of motion were noted as reduced at the end ranges. A month later, with treatment, he presented without tenderness to his lumbar spine. The Veteran attended a VA examination in November 2013. The Veteran reported seeing a chiropractor, but still had daily pain. He reported flare-ups that resulted in “good and bad days.” On range of motion testing, the Veteran had forward flexion with pain to 70 degrees and his total range of motion was 215 degrees. After repetitive testing, his range of motion slightly improved. The Veteran did not have additional limitation in his range of motion after repetitive use testing. The examiner gave the opinion that the Veteran would have reduced movement with pain after repetitive use. The remaining examination was normal, including no tenderness or guarding, and the examiner gave the opinion that the Veteran’s back disability would not have an impact on his ability to work. One month prior, in October 2013, the Veteran presented a chiropractor for complaints of back pain after lifting furniture. He reported pain of 10/10 that was worse with movement. His range of motion was at forward flexion at 25 degrees, and total range of motion of 65 degrees. However, the “normal” ranges of motion were not the same as those prescribed by plate V, under § 4.71a and the general rating for the spine. Therefore, in comparing the two examinations, being one month apart, the Board gives less probative weight to the October 2013 examination because it does not provide measurements that can be compared to other examinations of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran sought further chiropractic treatment, starting August 2014 with Dr. L.S. However, the Veteran’s back was not objectively and numerically tested. In October 2014, the doctor noted mild to moderate pain with extension, rotation, and lateral flexion. The Veteran sought emergency medicine for breakthrough back pain in November 2012 and January 2015, but no objective or numeric testing was performed. The Veteran reported in January 2016 that he has back pain all the time and that he had weakness in his legs, but he did not specify what factor affected his walking. In February 16, 2016, at a visit with Dr. L.S., the Veteran’s back was measured at 60 degrees forward flexion and 120 degrees total range of motion. This is the last examination and medical record concerning the Veteran’s back, prior to the Veteran being granted a 40 percent rating in March 9, 2016. This note was used to grant the Veteran a 20 percent rating for his lumbar spine. Overall, the evidence of record shows the Veteran’s lumbar spine disability has been manifested by pain and some limited range of motion. Indeed, the evidence shows the Veteran has demonstrated limited range of motion in his lumbar spine prior to March 9, 2016; however, the Veteran’s forward flexion has been limited to no less than 70 degrees and 215 degrees total, prior to February 16, 2016, including as a result of pain, after repetitive use testing, or during passive or weight-bearing range of motion testing. Between February 16, 2016 and March 9, 2016, forward flexion was limited to no worse than 60 degrees, also considering his symptomology. The Board acknowledges that the Veteran has reported experiencing flare-ups of pain and other symptoms in his lumbar spine; however, there is no competent lay or medical evidence showing his increased symptomatology would likely result in flexion or other movement of the spine limited to 60 degrees or less to warrant a higher disability. Specifically, there is no evidence that suggests ankylosis of any kind. Therefore, a higher rating is not warranted based upon limitation of motion under DC 5237 and the General Rating Formula for Diseases and Injuries of the Spine. The Board notes that the General Rating Formula for Diseases and Injuries of the Spine directs VA to separately evaluate any objective neurological abnormalities associated with a spinal disability under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235-5243). Other than radiculopathy that was granted service connection and is not on appeal, no other neurological abnormality is indicated. As noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. However, there is no objective indication that during flare-ups, the Veteran’s range of motion would be more limited. As a result, the 10 and 20 percent ratings for his back disability compensates him for the extent of his pain. In addition, while the Veteran has been diagnosed as having degenerative disc disease of the lumbar spine, he has not been diagnosed with intervertebral disc syndrome (IVDS) nor does the evidence shows that he has experienced incapacitating episodes, as defined by the applicable regulations, of the lumbar spine. This was specifically noted by the VA examiner in November 2013, and there is no other medical evidence or lay evidence suggesting that the Veteran experiences such incapacitating episodes due to his lumbar spine degenerative disc disease. Therefore, the Board finds the preponderance of the evidence supports a rating of 10 percent, but no higher, for a back disability prior to February 16, 2016 and of 20 percent, but no higher, from February 16, 2016 to March 8, 2016. The evidence is not in equipoise; as a result, the benefit-of-the-doubt doctrine is not for application. 1. Evaluation of the knee disability Under DC 5260, a 0 percent (noncompensable) disability rating is assigned for flexion limited to 60 degrees, a 10 percent disability rating is assigned for flexion limited to 45 degrees, a 20 percent disability rating is assigned for flexion limited to 30 degrees, and a 30 percent disability rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, a 0 percent noncompensable disability rating is assigned for extension limited to 5 degrees, a 10 percent disability rating is assigned for 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 38 C.F.R. § 4.71a. Standard range of knee motion is from zero degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. When the limitation of motion is non-compensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint (such as the knee) or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Separate ratings may be awarded for limitation of flexion and limitation of extension of the same knee joint. VAOPGCPREC 09-04, 69 Fed. Reg. 59990 (2004). In a precedent opinion by VA General Counsel, it held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under DC 5260 and a compensable limitation of extension under DC 5261, provided that the degree of disability is compensable under each set of criteria. Id. Additionally, under DC 5258, a 20 percent rating is available for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. A 20 percent rating is the maximum schedular rating. Further, § 4.71a does not expressly prohibit separate evaluation under DC 5261 and 5258. See Lyles v. Shulkin, No. 16-0994 (Vet. App., decided November 29, 2017); see also Esteban v. Brown, 6 Vet. App. 259 (1994). The Veteran sought physical therapy for his right knee in February 2013. He reported pain and swelling in his right knee, but the pain was less than his back pain. His range of motion was not tested. The Veteran attended a VA examination in November 2013. The Veteran reported being very stiff with tightness on the outer part of his knee, but denied being seen or followed for knee complaints or conditions. He did not report flare-ups of pain. On range of motion testing, the Veteran had painful flexion at 120 degrees, but his extension was within normal limits. After repetitive use, his flexion improved. The Veteran did not have additional limitation in his range of motion after repetitive use testing. The examiner gave the opinion that the Veteran would have reduced movement with pain after repetitive use. The Veteran had pain on palpation of his right knee. The examiner identified a meniscus injury on the Veteran’s right knee. However, the Veteran’s knee disability would not have an impact on his ability to work. The Veteran sought further chiropractic treatment, starting August 2014 with Dr. L.S. However, the Veteran’s knee was not actively tested and only tenderness was noted. The Veteran sought further treatment with Dr. L.S. starting February 16, 2016. He complained of chronic knee instability and interference with activities of daily living. His knee range of motion was measured, but it did not specify his flexion and extension measurements. The doctor noted positive meniscus and instability testing. The Veteran had a VA examination in March 2016. The Veteran did not report any flare-ups, but he did report weakness and swelling with activity as functional loss. Upon range of motion testing, he had pain on flexion and extension and his range of motion was 70 degrees flexion and extension was within normal limits. However, there was a note that the Veteran may have been malingering. No additional functional loss was noted after three repetitions. As for repeated use over time, the examiner could not determine functional loss because there was overlay with the Veteran’s back and the examiner could not be sure of the etiology. The examiner noted a meniscal tear. The examiner concluded that the pain limits the Veteran’s activities and he cannot work. An opinion dated June 28, 2016, was submitted by Dr. L. S. She provided the following diagnoses of the right knee all starting August 2014, the date the Veteran started treatment with her: knee strain, tendonitis, osteoarthritis, ankylosis, instability, and a provisional diagnosis of meniscal tear. The Veteran reported flare-ups of severe pain, locking of his knee joint, and weakness and tenderness around knee. As for functional loss, he reported limited range of motion in his right knee, limited endurance with physical activity, and a weak, locking joint. The Veteran reported pain in prolonged lifting, walking, running, and he couldn’t stand in place or get on hands and knees. Initial range of motion testing revealed 5 degrees extension and 130 degrees extension. After repetitive use, the range of motion decreased to 5 degrees extension and 60 degrees flexion. There was pain on repetitive testing, active range of motion, passive range of motion, and the pain contributed to the additional loss in range of motion. Functional loss included less movement than normal, pain, swelling interference with walking, sitting, and standing. When considered using range of motion measurements, the Veteran’s functional loss would reduce his flexion to 45 degrees and his extension to 10 degrees. The examination also found that the Veteran had favorable ankylosis on his right side, moderate effusion that occurs with activity, some medial and lateral instability, and a possible patellar dislocation. These symptoms were likely related to a meniscal tear that had to be formally tested. The Veteran’s ability to work would be impacted with limitations on his ability to life, stand, perform labor, cleaning, and moving items. The last VA examination was in November 2016, but it was for the Veteran’s left knee, not his right. The Veteran stated that his right knee is terrible and he does stretches and exercises for his right knee. It is unclear if he had flare-ups of his right knee, but he said he had none related to his left. His right knee range of motion was 120 degrees flexion and extension was within normal limits. The examiner noted that it was unclear why he would not/could not flex beyond 120 degrees and the Veteran guarded his knee beyond what would be expected for the known pathology. While there was pain on flexion, that pain nor limitation in flexion did not contribute to functional loss. The probative evidence of record does not demonstrate that the Veteran’s left knee was manifested by painful flexion less than 45 degrees. However, in addition, the evidence suggests from June 28, 2016, the date of the opinion from Dr. L.S., the Veteran did have painful extension to 10 degrees extension. Prior to this rating, both of the measurements were noncompensable and the Veteran was afforded a 10 percent rating under one of the codes, in this case DC 5260, based on painful limitation of motion. However, effective June 28, 2016, the Veteran has also had a compensable rating for limited extension. As noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, these were considered using the opinion of Dr. L.S., which the Board gives great probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In addition, the ratings for limitation of flexion and extension, the Board finds that the Veteran has a torn meniscus that is symptomatic. Therefore, the Veteran is awarded a separate 20 percent rating under DC 5258. The Veteran is competent to report knee symptoms within the realm of his personal experience. 38 C.F.R. § 3.159; see Layno, supra. However, the criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals. See Jones, supra; see also Jandreau, supra. As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. Further, the Board considers the Veteran’s complaints of instability and weakness to be compensated by DC 5258, rather than under limitation of motion. The Board has considered whether the Veteran is entitled to a separate compensable rating under DC 5256, for ankylosis of the knee. However, no other record mentions ankylosis, as opposed to almost all the records mentioning a meniscus disability. To the extent that Dr. L.S. has diagnosed ankylosis of the Veteran’s right knee, the Board gives this diagnosis little probative weight as it is not supported by the other evidence of record. Nieves-Rodriguez v. Peake, supra. Thus, the Board finds the preponderance of the evidence is against the grant of a rating higher than 10 percent for the right knee disability manifested by limited flexion. As a result, the benefit-of-the-doubt doctrine is not for application and his claim is denied. However, the Board does find the Veteran is granted separate compensable evaluations for limitation of extension of his right knee and for a torn, symptomatic meniscus of the right knee. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. M. Hitchcock