Citation Nr: 18153636
Decision Date: 11/28/18	Archive Date: 11/28/18

DOCKET NO. 10-47 120
DATE:	November 28, 2018
ORDER
1. The claim for service connection for a disability manifested by chest pain, to include costochondritis, is denied.
2. The claim for service connection for a bilateral shoulder disorder is denied.
3. The claim for service connection for insomnia, not including sleep disturbance associated with service-connected major depressive disorder, is denied. 
4. The claim for an initial compensable rating for bilateral restless leg syndrome (RLS) is denied.
5. The claim for a rating for major depressive disorder in excess of 30 percent prior to August 2, 2017, and in excess of 50 percent thereafter is denied.
6. The claim for a rating for cervical degenerative and traumatic arthritis (previously classified as cervical myalgia) in excess of 10 percent prior to August 28, 2012, and in excess of 30 percent since August 1, 2017, is denied.
7. The claim for a rating for postoperative (PO) residuals of lumbar fusion in excess of 20 percent prior to July 14, 2010, and since November 1, 2010; and in excess of 40 percent since August 28, 2012, is denied.
8. The claim for a rating in excess of 10 percent for instability of the right knee is denied.
9. The claim for a rating in excess of 10 percent for patellofemoral pain syndrome (PFS) of the right knee is denied.
10. The claim for a rating in excess of 10 percent for instability of the left knee is denied.
11. The claim for a rating in excess of 10 percent for PFS of the left knee is denied.
FINDINGS OF FACT
1. The Veteran has had chest pain during and since his military service but it is heartburn and for rating purposes is a symptom of his service-connected GERD; he does not have a cardiac disease or a separate disease entity manifested by chest pain, to include costochondritis, which is of service origin. 
2. The Veteran now has degenerative joint disease, i.e., arthritis, and impingement syndrome of both shoulders but these are first shown years after active service and neither of the disorders are demonstrated to be related to any inservice event, incidence or injury or related either causally or by means of aggravation to his service-connected disability of the cervical spine.  
3.  In October 2017, prior to the promulgation of a decision in the appeal, written notification was received from the Veteran stating the he wished to withdraw his appeal of the issue of service connection for insomnia.  
4.  The Veteran’s bilateral RLS is well controlled with medication and does not impact the Veteran’s daily activities, ability to work or earning capacity and is most appropriately rated as RLS of each lower extremity with functional impairment due to the service-connected sciatic radiculopathy of each leg. 
5.  Prior to August 2, 2017, the Veteran’s psychiatric disorder was manifested by depression, sleep disturbance and some social isolation with no more than decrease in work efficiency and intermittent periods of inability to perform occupational tasks; and since August 2, 2017, it has been manifested by depressed mood; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; and difficulty in establishing and maintaining effective work and social relationships.  
6.  The Veteran’s cervical degenerative and traumatic arthritis was manifested by cervical flexion to 80 degrees and the combined ranges of cervical motion was to 295 degrees prior to August 28, 2012; from August 28, 2012 it was manifested by a combined range of motion of the cervical spine of 205 degrees and flexion to no more than 30 degrees; and since August 1, 2017, it is manifested by cervical flexion to no more than 15 degrees but no unfavorable cervical ankylosis of the cervical spine.  
7.  The PO residuals of lumbar fusion, prior to July 14, 2010, and since November 1, 2010 were manifested by only 50 degrees of thoracolumbar flexion after repetitive motion; and since August 28, 2012, it has been manifested by thoracolumbar flexion less than 30 degrees but no favorable thoracolumbar ankylosis.  
8.  The Veteran has no more than slight right knee instability.  
9.  The Veteran has a noncompensable degree of limited right knee flexion but has pain, swelling, and weakness due to right knee PFS.  
10.  The Veteran has no more than slight left knee instability. 
11.  The Veteran has a noncompensable degree of limited right knee flexion but has pain, swelling, and weakness due to left knee PFS.  

 
CONCLUSIONS OF LAW
1.  The criteria for service connection for a disability manifested by chest pain, to include costochondritis, are not met.  38 U.S.C. §§ 1110, 1131, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303, 4.14, 4.114 Diagnostic Code 7346 (2018). 

2.  The criteria for service connection for a bilateral shoulder disorder are not met.  38 U.S.C. §§ 1110, 1112, 1131, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018).  

3.  The criteria are met for withdrawal of the appeal for service connection for insomnia, not including any sleep disturbance associated with service-connected major depressive disorder.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 

4.  The criteria for a separate initial compensable rating for bilateral RLS are not met.  38 U.S.C. §§ 1155, 5107(b) (West 2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.27, Diagnostic Codes 8103 and 8520 (2018).  

5.  The criteria for a rating for major depressive disorder in excess of 30 percent prior to August 2, 2017, and in excess of 50 percent thereafter are not met.  38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2018).  

6.  The criteria for a rating for cervical degenerative and traumatic arthritis in excess of 10 percent prior to August 28, 2012; rated 20 percent from August 28, 2012; and in excess of 30 percent since August 1, 2017, are not met.  38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2018). 

7.  The criteria for a rating for PO residuals of lumbar fusion, prior to July 14, 2010; in excess of 20 percent since November 1, 2010; and in excess of 40 percent since August 28, 2012, are not met.  38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5241 (2018).  

8.  The criteria for a rating in excess of 10 percent for instability of the right knee are not met.  38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2018).  

9.  The criteria for a rating in excess of 10 percent for PFS of the right knee are not met.  38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2018).  

10.  The criteria for a rating in excess of 10 percent for instability of the left knee are not met.  38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2018).  

11.  The criteria for a rating in excess of 10 percent for PFS of the left knee are not met.  38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from October 1983 to January 1987 and from September 1991 to May 2008, with additional periods of inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA).  

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 

The Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) in January 2016 and a transcript of that hearing is within the record before the Board, which includes electronic files within Virtual VA and the Veterans Benefits Management System (VBMS).  

The Veteran was previously represented by the Texas Veterans Commission, but in August 2015, he revoked that representation.  Subsequently, in September 2017 he again chose to be represented by the Texas Veterans Commission.  

This case was remanded in August 2015 to afford the Veteran an opportunity to testify in support of his appeal.  Thereafter, the Board entered a September 2016 decision which denied some claims on the merits and remanded other claims.  The Veteran appeal a portion or portions of the 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court) but his March 2017 motion to withdraw that appeal was granted by an Order of the Court later that month.  Accordingly, as to the issues addressed on the merits the 2016 Board decision is final.  

The extensive procedural history of this case was set forth in the 2016 Board decision and will not be repeated except as necessary.  That Board decision granted a 30% rating for atonic neurogenic bladder prior to August 28, 2012, and acknowledged that the criteria for withdrawal of the appeal for a rating in excess thereof since August 28, 2012, had been met.  As to the claim for an initial compensable rating prior to August 28, 2012, for radiculopathy of the left lower extremity, the Board granted a 10% rating as of June 1, 2008, and acknowledged that the criteria for withdrawal of the appeal for a rating in excess thereof since August 28, 2012, had been met.  The Board denied initial compensable ratings for erectile dysfunction (ED) and for prostatic hypertrophy and prostatitis but granted a 10% rating for gastroesophageal reflux disease (GERD).  

The 2016 Board decision reopened a claim for service connection for a bilateral shoulder disorder but, prior to de novo adjudication, remanded that claim for a medical opinion as to whether any such disorder was of service origin or due to service-connected cervical degenerative and traumatic arthritis (previously classified as cervical myalgia).  The Board also remanded the claim for a disability manifested by chest pain, to include costochondritis, to determine if chest pain was part and parcel of the service-connected GERD.  

July 2017 Rating Decision

After the 2016 Board decision, the Veteran was notified by RO letter of July 25, 2017, of a July 2017 rating decision (and of his appellate rights) which effectuated the Board grant of an increase from a noncompensable rating to 30% for an atonic bladder, effective January 9, 2010, and effectuated the grant of an increase from a noncompensable rating to 10%, effective June 1, 2008, for sciatic radiculopathy of the left lower extremity, classifying the latter as sciatic radiculopathy of the left lower extremity “(formerly diagnosed as [RLS], left).  At the time of the July 2017 rating a noncompensable rating was in effect for RLS of the right leg.  

October 2017 Rating Decision

By letter of October 10, 2017, the Veteran was notified of an October 2, 2017, rating decision (and of his appellate rights) which granted an increase from 30% to 50%, effective August 2, 2017 (date of VA examination) for service-connected major depressive disorder with insomnia.  It also increased the 20% rating for cervical myalgia to 30%, effective August 1, 2017, (date of VA examination) and reclassified that disorder as cervical degenerative and traumatic arthritis (previously classified as cervical myalgia).  That decision also granted service connection for radiculopathy of the left (non-dominant) upper extremity, and granted service connection for radiculopathy of the right (dominant) upper extremity (both as secondary to the service-connected cervical spine disorder), with each being assigned an initial 20% rating effective August 1, 2017 (date of VA examination).  It also granted basic eligibility to Dependents’ Educational Assistance under 38 U.S.C., Chapter 35.  

 
January 2018 Rating Decision

By RO letter dated January 9, 2018, the Veteran was notified of a January 4, 2008, rating decision (and his appellate rights) which increased the 10% rating for radiculopathy of the left lower extremity to 20% effective August 1, 1017 (date of VA examination).  It reclassified that disorder as (sciatic) radiculopathy of the left lower extremity with RLS.  It also increased a noncompensable (0%) rating for (sciatic) radiculopathy of the right lower extremity to 10% effective August 1, 2017, and it reclassified that disorder as (sciatic) radiculopathy of the right lower extremity with RLS.  A 10% rating for GERD with chest pain (costochondritis) was confirmed and continued.  Also, it granted special monthly compensation (SMC) under 38 U.S.C. § 1114; 38 C.F.R. § 3.350(i) from July 14, 2010, to November 1, 2010 (following surgical lumbar fusion) by reason of having been housebound.  That decision also noted that the Veteran was in receipt of SMC under 38 U.S.C. § 1114; 38 C.F.R. § 3.350(a) for loss of use of a creative organ.  

Supplemental Statements of the Case (SSOC)

SSOCs have been issued in December 2017 and April 2018 which, in pertinent part, addressed issues of (a) an initial compensable evaluation, prior to August 28, 2012, for the service-connected radiculopathy of the left lower extremity; (b) the evaluation of (sciatic) radiculopathy of the left lower extremity with RLS, evaluated as 10% disabling prior to August 1, 2017; (c) the evaluation of (sciatic) radiculopathy of the left lower extremity with RLS, from August 1, 2017 and thereafter [stated as 10% in the April 2018 SSOC but more accurately as 20% in the December 2017 SSOC]; (d) the evaluation of (sciatic) radiculopathy of the right lower extremity with RLS, evaluated as 0% disabling prior to August 1, 2017; and (e) the evaluation of (sciatic) radiculopathy of the right lower extremity with RLS, evaluated as 10% disabling August 1, 2017, and thereafter.  

The matter of (a) above, an initial compensable evaluation, prior to August 28, 2012, for the service-connected radiculopathy of the left lower extremity was addressed, and granted to 10% by the Board in 2016.  Even assuming that this was a matter which the Veteran included in his appeal to the Court, that appeal was withdrawn and dismissed.  Thus, the Board’s 2016 decision as to this matter is final.  

The issues of (b) and (c) above, i.e., the evaluation of sciatic radiculopathy of the left lower extremity with RLS, evaluated as 10% disabling prior to and since August 1, 2017, could only stem from the rating decisions following the 2016 Board decision.  Likewise, the issues of (d) and (e) above, i.e., the evaluation of sciatic radiculopathy of the right lower extremity with RLS, evaluated as 0% disabling prior to August 1, 2017, and 10% thereafter, could also only stem from the rating decisions following the 2016 Board decision.  

In this regard, the Veteran did not file a Notice of Disagreement (NOD) as to any of the issues cited above, i.e., (b), (c), (d), and (e) adjudicated in any of the rating decisions following the 2016 Board decision.  

The Board observes that Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, at 38 C.F.R. § 4.71(a), provides that "any associated objective neurologic abnormalities" should be evaluated "separately, under an appropriate” Diagnostic Code.  While it may appear that Note (1), is simply a vehicle to provide "the maximum benefit allowed by law and regulation" referred to in AB v. Brown, 6 Vet. App. 35, 38 (1993); see Bender v. Shinseki, No. 12-2669, slip op. (U.S. Vet. App. Mar. 27, 2014) (nonprecedential memorandum decision), this does not exempt a claimant from following the proper procedures for initiating (and perfecting) an appeal.  See 38 C.F.R. § 20.200 (An appeal consists of a timely filed NOD, after an SOC has been furnished, a timely filed Substantive Appeal).  

Rather, the facts in this case follow more closely those in Waddell v. Wilkie, No. 17-0438, slip op. at 4 (U.S. Vet. App. Nov. 1, 2018) (nonprecedential memorandum decision) in which the Court noted that in AB service connection was granted for PTSD and assigned an initial 10% rating but, in AB, the appellant filed an NOD challenging the initial assigned rating and VA subsequently granted an increase to a 30% rating and closed the appeal.  AB v. Brown, 6 Vet. App. at 38.  In AB the Court held that VA's closing of the appeal, after granting an increase in the initial 10% rating to a 30% rating, was improper because when a claimant files an NOD challenging a compensation level, a subsequent rating decision awarding a higher rating, but less than the maximum, doesn't end the appeal.  Id.  

In Waddell there was no NOD filed as to the initial rating assigned upon a grant of service connection for a radicular disorder (right leg sciatica) and, so, “the holding in AB is inapplicable.”  Id., slip op. at 4; cf. Bender v. Shinseki, No. 12-2669, slip op.at 3 and 4 (U.S. Vet. App. Mar. 27, 2014) (nonprecedential memorandum decision); 2014 WL 1246680 (Vet.App.) (finding that the Board did not exceed its jurisdiction or deny secondary service connection when not assigning a separate compensable rating for lower extremity radiculopathy on appeal of an initial rating for lumbosacral intervertebral disc syndrome (IVDS) which was not specifically addressed by the RO, citing Note 1 of 38 C.F.R. § 4.71a, DCs 5235 5243 and citing Jarrell v. Nicholson, 20 Vet. App. 326, 332 (2006) (en banc) (addressing a motion to revise based on clear and unmistakable error), and Bernard v. Brown, 4 Vet. App. 384, 392 (1993) (the Board must first consider whether there is prejudice in adjudicating a matter not addressed by the RO)).  

Accordingly, the matters cited above and addressed in the SSOCs in December 2017 and April 2018 have not been developed for appellate adjudication because no NOD was filed as to the rating decisions in July and October 2017 and January 2018.  
Matters Referred to the RO

Following the October 2017 rating decision, a typed letter dated November 21, 2017, from the Veteran was received in which he appeared to disagree with the effective dates, set in August 2017, as to one or more of the ratings addressed in the rating decision.  However, the Veteran did not specify which matter or matters adjudicated in the October 2017 he disagreed.  Accordingly, this is referred to the RO for clarification.  
Principles of Service Connection

Service connection is warranted for disability incurred or aggravated during active service.  38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303.  Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).  Not every manifestation of joint pain during service will permit service connection for arthritis first shown as a clear-cut clinical entity at some later date.  38 C.F.R. § 3.303(b). 

A rebuttable presumption of service connection exists for chronic diseases, specifically listed at 38 C.F.R. § 3.309(a) (and not merely diseases which are “medically chronic”), including arthritis, if the chronicity is either shown as such in service which requires sufficient combination of manifestations for disease identification and sufficient observation to establish chronicity (as opposed to isolated findings or a mere diagnosis including the word ‘chronic’), or manifests to 10 percent or more within one year of service discharge (under § 3.307).  If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required, 38 C.F.R. § 3.303(b), but the use of continuity of symptoms is limited to only those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  The presumption may be rebutted by affirmative evidence of intercurrent injury or disease which is a recognized cause of a chronic disability.  38 U.S.C. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed.Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997).  For a chronic disease to be shown during service or in a presumptive period means that it is “well diagnosed beyond question” or “beyond legitimate question.”  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 

However, costochondritis, insomnia, as well as sleep apnea, and restless leg syndrome are not chronic diseases listed at 38 C.F.R. § 3.309(a).  

Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition.  38 C.F.R. § 3.310(a) and (b).  This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998).

Lay evidence can be competent and sufficient to establish a diagnosis where (1) the layperson is competent to identify the medical condition, or (2) is reporting a contemporaneous medical diagnosis, or (3) describes symptoms that support a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

All disabilities arising from a single disease entity are rated separately, for combination under 38 C.F.R. § 4.25.  However, pyramiding, i.e., evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided.  Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.  See 38 C.F.R. § 4.14.  Thus, separate ratings under different DCs are only permitted based on manifestations that are separate and apart from manifestations which have already been rated.  The major concern is whether any common manifestations are improperly compensated more than once.  Esteban v. Brown, 6 Vet. App. 259, 261 (1994).

The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event.  However, if the weight of the evidence is against the appellant’s claim, the claim must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990).   

1.  Service connection for a disability manifested by chest pain, to include costochondritis

Service treatment records (STRs) show that in January 1984, during the Veteran's first period of active service, he reported having chest pain, and an upper respiratory infection (URI) and costochondritis were diagnosed.  In May 1985 he again complained of chest pain, this time assessed as hyperventilation and a possible hiatal hernia.  A follow up report twenty days later reflects a diagnosis of costochondritis.  He was seen again seen in June 1985 for sharp chest pain aggravated by deep breathing.  An examination revealed a clear chest with good heart rhythm.  Costochondritis was again diagnosed.  The Veteran again reported with chest pain, along with shortness of breath and dizziness in April 1996.

The Veteran reported to the emergency room in February 2002 with a one-hour history of chest pain, which resolved with two sprays of nitroglycerin and aspirin.  The pain was noted as acute onset, sharp, on the left side of his chest, radiating down his left arm.  EKG and chest X-ray were normal, as was an exercise treadmill test.  Myocardial infarction was ruled out.  He was admitted overnight per protocol and chest pain occurred again the next day, lasting twenty minutes, and deemed "likely GI in origin."  He was discharged home with no medications.  

In July 2002, the Veteran reported for treatment for chest pain, which he described as worsening when he is lying down at night.  He was assessed as having chest pain which was deemed "prob reflux, doubt cardiac, poss musculoskeletal."  An August 2002 note showed he "still has constant central chest pain, which did not improve" with medication such as Maalox.  He reported to the physician that he did not have ongoing GERD at the current time, but the chest pain continued.  The physician nonetheless continued to recommend a controlled diet as treatment.  

In June 2003, the Veteran was seen for non-cardiac chest pain, when an EKG was within normal limits.  He described an abrupt onset of epigastric pin with radiation to the left side of the chest.  In July 2003, clinical notes show a follow up visit for atypical chest pain.  A history of epigastric pain was noted when lying down.  An August 2007 note reflects a complaint of non-localized chest pain that radiated between the scapula.  At that time, he reported no problems with acid indigestion.  A physical examination was normal.  CT scan of the chest was normal.  The findings noted, "Normal CT scan of the chest without findings to explain the patient's chest pain."  He reported chest pain lasting two weeks in September 2007.  He reported this was similar to pain he had experienced five years earlier.  

At the time of an October 2008 VA general medical examination, the Veteran reported having episodes of chest pain on and off in 1995, which resolved on its own.  He also reported a severe bout of chest pain with shortness of breath in 2002, which was followed by a work up with a negative stress test.  He reported presently experiencing chest pain two to three times per month, which was described as a dull ache radiating to his back.  Cardiovascular examination at that time was normal, with a heart with regular rate and rhythm.  The examiner noted the diagnosis as chest pain more likely than not noncardiac, atypical.  

In March 2010, the Veteran reported that he had experienced and reported chest pain several times during his active service.  He suggested he had chest pain and tenderness, difficulty swallowing, heartburn, pain between his shoulder blades, and pain in his sternum.  He also suggested that his chest pain might be related to his service connected GERD ("When I suffered this condition, I had heartburn as well and reported this condition.  This condition relates with heartburn and I continue to have this condition.")  

At his January 2016 hearing the Veteran reported first experiencing chest pain in service in 1996, while on board a ship.  He recalled the chest pain manifesting while handling lines and moving anchor chains on the ship.  He recalled feeling pressure and pain as though he was having a heart attack and going to the doctor and being told his heart was fine and that he had inflammation.  He had gone to sickbay on the ship for these symptoms ten to fifteen times.  While stationed in Hawaii he had been taken to a hospital for the same type of check pain, as well as when he was transferred to Florida.  He continued to have similar symptoms on occasions since service.  Transcript at pages 5-8.  His wife recalled the Veteran having had chest pain and had taken him to an emergency room on occasions to rule out a heart attack.  She recalled these symptoms worsening after his assignment to a ship.  Transcript at page 9.  

Pursuant to the Board’s 2016 remand, the Veteran was afforded an examination in August 2017 to assess the etiology and nature of any disability manifested by chest pain, including costochondritis.  The examiner, a physician, reviewed the entire record and opined that the Veteran did not have a cardiac disability.  Rather, he had a long history of intermittent noncardiac chest pain which continued to the present day.  He had undergone recent cardiac studies in 2016 in the community which apparently were negative for any cardiac disease.  The STRs documented non-cardiac chest pain all the way back to 1985, and variably diagnosed as costochondritis early on, and subsequently as possible GERD/musculoskeletal/atypical chest pain.  The current clinical examination again found atypical/non-cardiac chest pain.  However, there was no current costochondral tenderness at all.  

The examiner concluded by stating that it was his medical opinion that it was as least as likely as not that the Veteran's chest pain was causally/etiologically related to military service.  

In October 2017 a clarifying medical opinion was obtained in which it was opined that it seemed medically plausible to attribute the Veteran's recurrent chest pain to chronic GERD.  The rationale was that the Veteran had had multiple cardiac work-ups with negative findings.  Costochondritis was diagnosed in 1985 but not since then.  The Veteran has documented GERD in the past which has been relatively stable but was a common source of chronic non-cardiac chest pain.

Analysis

It was based on the findings and opinion at the August 2017 VA examination that the January 2018 rating decision recharacterized the Veteran’s service-connected GERD as being GERD “with chest pain (costochondritis), but confirmed and continued the 10% rating granted by the 2016 Board decision and effectuated by the July 2017 rating decision.  

Stated more simply, the RO found that the Veteran’s chest pain, including costochondritis, was part and parcel of his service-connected GERD for rating purposes.  In this regard, the Veteran has offered conflicting statements as to his belief that his chest pain is, and is not, part of his service-connected GERD.  While the Board does not doubt that he has chest pain, it must be noted that such chest pain can easily be mistaken as being a symptom of a cardiac disability, i.e., pain in the area of the heart (heartburn).  Specifically, a common cause of GERD is a hiatal hernia, which is the very Diagnostic Code under when the Veterans’ service-connected GERD is evaluated.  See 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346.  Part of the criteria for an evaluation under DC 7346 are substernal or arm or shoulder pain, as well as pyrosis.  Pyrosis is defined as heartburn.  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1587 (31st ed. 2007).  

Here, the opinion of the 2017 VA examiner was that the Veteran’s chest pain was related to his military service.  However, the examiner both found that the Veteran did not have a cardiovascular disease and did not find that the Veteran’s chest pain was due to a separate and distinct musculoskeletal disability.  While not a model of clarity, when viewed in light of the entire examination report, the most reasonable conclusion is that the examiner’s opinion was that the chest pain was due to and was part of, i.e., a symptom, of the Veteran’s service-connected GERD.  This is consistent with the examiner’s summary that the examination at that time found not costochondral tenderness and was again consistent with atypical but non-cardiac chest pain.  

Accordingly, the preponderance of the evidence is against finding that the Veteran has a separate and distinct disability manifested by chest pain, to include costochondritis, for which service connection may be granted for the purpose of assigning a separate disability rating, for combination under 38 C.F.R. § 4.25.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990).  However, the Board wishes to clarify that it does not find that the Veteran does not have chest pain which may be, and is, considered to be part and parcel of the service-connected GERD for rating purposes.  Stated simply, in this case, the symptom of heartburn due to the Veteran’s GERD may not be parceled out separately to assign separate disability ratings for each symptom because this would be “pyramiding” (double compensation) and is prohibited under 38 C.F.R. § 4.14.   

2.  Service connection for a bilateral shoulder disorder

The Veteran contends he has a current bilateral shoulder disability related to activities in service requiring the use of upper body strength.  He reported at the January 2016 hearing that he was at a maintenance activity in South Texas using "chain falls."  He recalled holding the chain fall-up in the air and putting the bolts in, which required heaving them in the air using his shoulders.  He reported that during this pulley type of activity, he was lifting between 500 and 2000 pounds.  He also reported experiencing shoulder pain when heaving around the morning lines for the ship, and when putting small boats in the water.  Transcript at page 12.  At the hearing he also suggested that his shoulder disability was causally connected to his service-connected cervical spine disability and he related having symptoms which radiated down to his shoulders on both sides, including pinching, numbness and tingling.  Transcript at pages 13 and 14.  

The STRs include records of treatment for back pain following handling of lines on a ship.  December 2003 clinical notes show he reported having been involved in a deck evolution in which he was moving the anchor chain and twisted his back.  A January 2004 lumbar spine evaluation shows that he reported having fallen forward with a chain in his hand in November 2003.  In August 2004, he reported having and he recalled injuring his back the prior year while handling lines on the ship.  

Pursuant to the Board’s 2016 remand the Veteran was afforded a VA examination in August 2017 at which time the examiner, a physician, reviewed the record.  The examiner reported that the Veteran had noted the gradual onset of bilateral shoulder pain/stiffness/weakness associated with bilateral trapezius muscle problems during the 2000s.  The problems seem to be also somehow connected to his chronic neck pain as well.  On examination he had limitation of flexion and abduction of each shoulder.  Rotator cuff pathology was suspected and he had positive Hawkin’s Impingement Test, Lift-off Subscapularis Test, and Crank apprehension and relocation test, bilaterally, as well as Empty-can Test and External Rotation/Infraspinatus Strength Test of the left shoulder.  

The examiner reported that current X-rays revealed mild bilateral glenohumeral degenerative joint disease (DJD) with joint space narrowing and decreased subacromial space, with the latter possibly leading to impingement.  The diagnosis was bilateral shoulder DJD with impingement syndrome.

The examiner stated that the was bilateral shoulder DJD with impingement syndrome had been present for at least the past several years.  He opined that it was less likely as not that these conditions were caused or aggravated by the cervical spine disability.  The rationale was that the current peer reviewed medical literature did not support a causal/aggravational relationship between cervical spine pathology and the subsequent development/worsening of shoulder pathology.  

The examiner also opined that it was less likely as not that the Veteran's current bilateral shoulder DJD was proximately due to or caused by military service.  The rationale was that the STRs did not contain any documentation of shoulder problems/issues that the examiner could locate.  

Analysis

Although the STRs reflect treatment for inservice complaints of back pain, they are negative for complaints and treatment of symptoms of disability of the Veteran’s shoulder.  The Board does not doubt that the Veteran engaged in strenuous physical activity during his military service and while this may have caused his currently service-connected disabilities of the cervical or thoracolumbar spinal segments, or both, it does not necessarily follow that such strenuous inservice physical activity is the cause of all of his postservice musculoskeletal disabilities, including his shoulders.  

The Veteran and other laypersons are competent to testify on factual matters of which they have first-hand knowledge, behavior and verbalizing of complaints and are effects on employment or daily activities.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 4923 F.3d 1372, 1376 (Fed.Cir. 2007); 38 C.F.R. § 3.159(a)(1) and (2).  However, in Routen v. Brown, 10 Vet. App. 183, 186 (1997) it was held, citing Stadin v. Brown, 9 Vet. App. 280, 284 (1995) and Robinette v. Brown, 8 Vet. App. 69, 74 (1995) that “[w]hile the appellant is certainly capable of providing evidence of symptomatology, a layperson is generally not capable of opining on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms.”  

In contrast to the Veteran’s lay belief that his current bilateral shoulder DJD and impingement syndrome are related to either his military service or his service-connected disorder of the cervical spine, the recent VA examiner, after an examination and review of the record, opined that it was not related to either the Veteran’s military service or, by causation or aggravation, to the service-connected cervical spine disorder.  While the Veteran is competent to attest to symptoms he personally experienced, he lacks the training, education, and medical expertise to competently opine as to the etiology of his current bilateral shoulder DJD and impingement syndrome.  

As to the second and third circumstances, delineated in Jandreau, Id., when lay evidence may establish a diagnosis, the Veteran has not reported or stated that he was given a diagnosis during service of any shoulder pathology, or a diagnosis within one year of service discharge in May 2008 of arthritis of either or both shoulders (the 2nd circumstance under Jandreau).  

The statement that the Veteran had symptoms of shoulder pain during military service are simply too vague to suggest, much less establish, that he was given a formal diagnosis of either DJD of the shoulders or impingement syndrome of the shoulders during active service (the 3rd circumstance under Jandreau).  

The Court’s holdings as to the limited competency of lay evidence with respect to matters of a medical nature does not mean that in adjudicating a claim for service connection that a layperson’s statements of personal belief as to etiology or what he or she was told by medical personnel must be blindly accepted as true.  While the holding in Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) that “the connection between what a physician said and the layman's account of what he purportedly said, filtered as it [is] through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute ‘medical’ evidence” is no longer binding in light of the holding in Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) and Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the reasoning in Washington, Id. at 368, is persuasive particularly in circumstances in which the layperson is reciting matters of a complex medical nature which was told to him or her many years ago.  See also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992) (VA “is not required to accept every bald assertion [] as to service connection or aggravation of a disability.”).

The Veteran may believe that the claimed DJD and impingement syndrome of the shoulders are related to active service.  As to this, a layperson may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation.  See Jandreau, Id.  Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran being untrained and uneducated in medicine is not competent to address etiology in the present case.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (a claimant is not competent to provide evidence as to more complex medical questions).  The complexity of diagnosing the nature and etiology of the Veteran's current shoulder DJD and impingement syndrome is shown by the absence of contemporaneous clinical or lay evidence until long after service.  In fact, so complex is it that medical opinions had to be obtained.  Unfortunately, the medical opinions are negative and do not support the claim.  Rather, it is probative evidence against the claim.  

For these reasons and bases, the Board finds that the preponderance of the evidence is against the claim for service connection for a bilateral shoulder disorder and, thus, the claim must be denied.  
3.  Service connection for insomnia, not including any sleep disturbance associated with service-connected major depressive disorder

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105 (2012).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

In 2016 the Board also remanded a claim for service connection for insomnia, not including any sleep disturbance associated with service-connected major depressive disorder, because, although a March 2009, a rating granted service connection for major depressive disorder with insomnia, in March 2010, the Veteran submitted a statement of disagreement with the denial of service connection for an independent disability of insomnia and contended that insomnia should be separately rated and "not combined with depression."  In the 2016 Board remand it was noted that the RO had not issued a statement of the case (SOC) as to this issue and that issue was remanded for that purpose.  See Manlincon v. West, 12 Vet. App. 238 (1999).  

No SOC had been issue addressing the claim for service connection for insomnia, not including any sleep disturbance associated with service-connected major depressive disorder, which would allow the Veteran the opportunity to perfect an appeal as to that matter.  Also, that issue was not addressed in Supplemental Statements of the Case (SSOCs) in December 2017 and April 2018.  

Nevertheless, an October 2, 2017, VA Form 27-0820, Report of General Information, reflects that upon telephonic communication it was explained to the Veteran that he was already service connected for a mental condition and that the mental condition included sleep impairment.  He was asked if he wanted to withdraw his claim for service connection for insomnia and he said that he did, and would submit it in writing.  

Of record is a typed letter, signed by the Veteran, dated October 2, 2017, in which he stated “[p]lease remove my appeal for the separate sleep disorder and maintain under the mental health rating.”  

In the present case, the Veteran has withdrawn his appeal as to service connection for insomnia and, hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal as to this issue and the appeal as to this issue is dismissed.  
Rating Principles
Disability ratings are determined by the application of rating criteria VA’s Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity, with separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7; see also 38 C.F.R. § 4.21.  See 38 C.F.R. §§ 4.1, 4.2, 4.10.  Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that warrant different ratings.  Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Also, the alleviating effects of medication may not be considered in schedular ratings unless explicitly provided in the applicable schedular rating criteria.  Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).  Any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

4.  An initial compensable rating for bilateral RLS

The Veteran was awarded an initial noncompensable rating for bilateral restless leg syndrome, effective June 1, 2008 analogously under 38 C.F.R. § 4.124a, DC 8103 as a convulsive tic disorder (rated depending upon the frequency and severity of symptoms and muscle group involved, and which when mild warrants a noncompensable rating).  Thus, the actual status of service connection for RLS is not at issue; rather, the focus is whether it should be separately rated, for combination.  

At an October 2008 VA general medical examination the Veteran reported having been diagnosed with RLS 1 1/2 years earlier.  He took Requip nightly to manage the symptoms, and if he missed a dose he had lower extremity pain associated with some jerking movements which kept him awake at night.  In a list of diagnoses the examiner confirmed the existence of RLS and noted it was stable on medications.  

In March 2010, the Veteran reported that the Requip did not completely resolve his symptoms and he reported that his involuntary leg movements affected his sleep.  He stated that the symptoms occurred three to four times per week, sometimes affecting one leg and sometimes both, often lasting 2 to 4 hours per episode or night.  

At the January 2016 hearing the Veteran reported a worsening of his RLS following his back surgery when he began taking Ropinirole.  Transcript at page 25. 

A September 2012 VA examiner reported that as to RLS the Veteran’s history and clinical examination findings were not consistent with that diagnosis.  Thus, he was unlikely to have RLS, and more likely than not his symptoms were due to radiculopathy of the left lower extremity related to his back disability.  

In light of the 2012 VA examiner’s opinion, in 2016 the Board remanded this claim to determine the appropriate identifiable nature of the bilateral lower extremity symptoms and to assess their current severity.  

On VA neurology examination in August 2017, pursuant to the 2016 Board remand, after reviewing the record a VA examiner confirmed the diagnosis of RLS, noting that the Veteran continued his nightly medication with good control of his symptoms.  After a physical examination the examiner reported that the RLS did not impact the Veteran’s ability to work.  The examiner opined that the RLS was well controlled with medication.  It had been present since 2005 and was documented in the STRs.  Significantly, the examiner concluded that the bilateral RLS had no effect on the Veteran's occupational functioning or his daily activities.   

On VA neurology examination of September 2017, an examiner reported that as to RLS, the Veteran’s history and current clinical findings were not consistent with that diagnosis and, so, he was unlikely to have RLS.  It was more likely that his symptomatology was due to radiculopathy of the left lower extremity related to his back disability.  

Analysis

The bilateral RLS, if it exists, has not affected the Veteran’s daily activities and has not impaired his earning capacity or his ability to work.  This disorder has reportedly caused jerking movement of his legs and, primarily, it has simply interfered with the quality or duration of his sleep.  It has not caused any such functional impairment of the muscles of his lower extremities as would warrant a compensable disability rating under any applicable DC governing impaired muscle function.  See 38 C.F.R. § 4.73, DCs 5103 thru 5329.  Moreover, sleep disturbance is a rating factor for the evaluation assigned for his service-connected psychiatric disorder and, as such, is encompassed in the ratings for that disability.  

The RO has separately assigned RLS in each lower extremity as being part and parcel of the Veteran’s service-connected sciatic radiculopathy of each lower extremity.  However, there is no clinical evidence, and the Veteran does not contend, that the RLS in each lower extremity in any way causes such neurologic impairment that an increase would be warranted for the disability evaluations assigned for sciatic radiculopathy in each lower extremity.  

Under 38 C.F.R. §§ 4.20 and 4.27, an unlisted condition, such as bilateral RLS, may be rated analogously to a listed condition depending upon the anatomical localization, symptoms, and functions affected.  Lendenmann v. Principi, 3 Vet. App. 345, 351 (1992); see also Suttman v. Brown, 5 Vet. App. 127, 134 (1993); Horowitz v. Brown, 5 Vet. App. 217, 224 (1993); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992); Vogan v. Shinseki, 24 Vet. App. 159, 161 (2010); and Archer v. Principi, 3 Vet. App. 433 (1992).  

Here, the “function” affected is not encompassed under either DC 8103 or DC 8520 (for rating sciatic neuropathy).  However, because the symptoms are primarily jerking motions of the legs, and the localization is that of the legs, the disability more closely resembles sciatic neuropathy.  Thus, the RO has appropriately rated the RLS of each leg as part and parcel of the service-connected bilateral lower extremity radiculopathies.  The Board finds no error in this determination and, accordingly, a separate compensable rating for bilateral RLS is not warranted.  
5.  A rating for major depressive disorder in excess of 30 percent prior to August 2, 2017, and in excess of 50 percent thereafter

The Veteran's major depressive disorder with insomnia is rated under 38 C.F.R. § 4.130, Diagnostic Code 9434 which uses a general rating formula for the evaluation of mental disorders.  Under 38 C.F.R. § 4.126 (a) and (b) consideration is given to the frequency, severity, and duration of psychiatric symptoms as well as the length and capacity for adjustment during periods of remission.  While consideration is given to the extent of social impairment, a psychiatric rating will not be assigned solely based on social impairment.  

Under Diagnostic Code (DC) 9434 a 30% rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; or mild memory loss (such as forgetting names, directions, recent events).  Id. 

A 50% rating is warranted where the disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks (more than once a week); difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  Id. 

A 70% rating contemplates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.  

“VA did not include in the criteria for a 70% evaluation the risk of actual self-harm.  In fact, to the extent that risk of self-harm is expressly mentioned in § 4.130 at all, it is referenced in the criteria for a 100% evaluation as ‘persistent danger of hurting self, a symptom VA deemed to be typically associated with total occupational and social impairment.  38 C.F.R. § 4.130.”  However, VA adjudicators are not “absolutely prohibited from considering [] risk of self-harm in assessing [a] level of occupational and social impairment” but there must be a differentiation between suicidal ideation, which is generally indicative of a 70% evaluation, and a risk of self-harm, the persistent danger of which is generally indicative of a 100% evaluation.  Bankhead, slip op. at 12.  

A total schedular rating of 100% is warranted when the disorder results in total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also consider how those symptoms impact a veteran's occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Because the use of the term 'such as' in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004).  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that a veteran's impairment must be 'due to' those symptoms, a veteran may only qualify for a given disability by demonstrating the symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013), however, noted the "symptom-driven nature" of the General Rating Formula, observed that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."

The Global Assessment of Functioning Scale (GAF) “is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994).”  Richard v. Brown, 9 Vet. App. 266, 267 (1996).  The Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) was revised to the DSM-5 to remove consideration of GAF scores.  In Golden v. Shulkin, No. 16-1208, slip op. at 1 (U.S. Vet. App. Feb. 23, 2018) it held that it was error to use “GAF scores to assign a psychiatric rating in cases where the DSM-5 applies” (which is to appeals certified to the Board on or after August 4, 2014).  Golden, No. 16-1208, slip op. at 4 and 5 (U.S. Vet. App. Feb. 23, 2018).  

Here, the appeal was initially certified for appellate review in November 2014, after August 4, 2014, although prior to the Board remand in August 2015.  Thus, the Veteran’s GAF scores may not be considered.

Background

On VA psychiatric examination of October 8, 2008, the claim file was reviewed.  The Veteran reported having received psychiatric treatment and took psychotropic medication during service.   Currently, the Veteran reported that his mood was up and down and he had episodes of irritability.  Until recently he was struggling because he had a bad job and it did not pay well, and his wife was dealing with recurrent migraines.  He stated that he felt fatigued and lethargic, and sometimes did not want to get up and do anything.  He reported having a decreased appetite, decreased libido, and significant feelings of guilt.  He stated that he had had sleep disturbance, which he indicated began prior to the depression.  He indicated that the sleep disturbance began with back pain and he felt the depression aggravated the sleep disturbance.  He also reported that his prostate problems, which were associated with frequent urination, contribute to the sleep disturbance as well.  

Although the Veteran denied suicidal ideation, he indicated that he thought a lot about, death and felt a sense of hopelessness and failure.  He worried that he had failed his own family and he sometimes was preoccupied with the death notification cases that he worked on during military service.  The Veteran felt that the severity and level of his depression was moderate.  He did not contend that his psychiatric symptoms interfered with his ability to find work, nor did he contend that his psychiatric symptoms interfered with his ability to attend work.  

The Veteran felt that his depression interfered with work at times because he has some negative thoughts, but he felt the majority of the time he was able to separate his depression from his work functioning.  Therefore, it appeared that his occupational impairment, secondary to depression, was mild.  He reported that his relationship with his wife was is pretty good.  He indicated that there was some stress because of his children at home have learning disabilities. 

The Veteran reported that he tended to spend most of his time with his family and did not have any close friends.  He reported that he worked at night and this interfered with the quantity of time that he could have with his family.  He reported that his hobbies include woodworking and hunting.  He did maintain relationships with his adult daughters, who live outside of the home.  Overall, he exhibited mild social, impairment in the form of diminished interest and participation in significant activities, secondary to depressive symptoms.  At the current time he was not on any treatment and did not feel that he needed it, unless he were to get laid off.  

On mental status examination the Veteran was dressed casually and appeared to have good grooming and hygiene.  He made good eye contact.  He exhibited mildly reduced psychomotor activity.  His manner of interaction was cooperative. and courteous.  His speech and communication were normal in rate, rhythm, tone, and volume.  His. thought processes were clear, logical, goal directed and coherent.  His thought content was relevant and appropriate.  His behavior was appropriate.  He had no history of delusions or hallucinations.  He reported his mood to be depressed.  His affect was blunted.  He denied suicidal and homicidal, ideation.  He was oriented in all. spheres.  He evidenced mild deficits in concentration skills but his memory skills appeared intact.  He exhibited good abstract. reasoning skills, and good social judgement.  He showed an above average level of psychological insight.  

The Veteran's depressive symptoms occasionally interfered at work, as they lead to negative thoughts and slight problems with irritability.  The effects of his symptoms were similar at home, as he tended to lack motivation and interest in participating in significant. activities.  However, in terms of behavior, he indicated that he did force himself to get up and get involved.  He did not exhibit, inappropriate behavior or impairment in basic activities of daily living.  He reported symptoms of fatigue, lethargy, lack of motivation, and decreased appetite and decreased libido.  He reported that his depression had mildly aggravated his sleep disturbance, which pre-existed the depression.  He denied homicidal, and suicidal ideation.  

The examiner reported that as to the effects of the psychiatric disorder on occupational and social functioning, there were signs. and symptoms that were transient and mild which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress.  Occupationally, examples included mild issues with negative thinking and irritability.  Socially, examples include mild to moderate social withdrawal, lack of motivation, and lack of interest.  Currently, the Veteran's psychiatric symptoms did not require continuous medication.

In a March 2010 statement the Veteran described his depression as worsening, although the statement primarily referred to his claim for insomnia as a separate disability.  He did confirm some sleep disturbance due to his depression. 

On VA psychiatric examination in September 2011 and examiner summarized the Veteran's level of disability as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or controlled by medication.  The Veteran socialized with his family and coworkers, but did not have friends in the community.  He reported no bad performance reviews at work, although he recalled one instance when his supervisor pulled him aside due to a negative attitude.  He reported that he did not take psychotropic medications and was not engaged in psychotherapy.  He did report one instance of passive suicidal ideation, but attributed it to the use of Lyrica in 2008.  

The Veteran remained married and had 2 children living at home.  He socialized with immediate family members and some at work, but did not have friends in the community.  The examiner listed the Veteran’s symptoms as depressed mood, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships.  

At his January 2016 hearing, the Veteran reported that when depressed, he did not want to do anything other than lay down or do nothing, which is not the way he used to be.  He reported previously liking to do things in the yard and garage, but not any longer.  He reported he will try and it will last ten to fifteen minutes and he will go back into the house having lost desire and drive to do anything.  Transcript at 28.  The Veteran's wife reported the Veteran's treatment with a counselor one year prior after an episode during which, while driving, they began arguing and the Veteran started driving approximately 90 miles per hour.  She also confirmed that he does not ever want to do anything, including going to movies or having a date night.  During the hearing, the Veteran's wife also reported, "sometimes he's wanting to hurt himself...because he's had enough of the pain."  She also reported that their teenage daughter had questioned what to do if she comes home to find her father dead.  She testified that he saw a counselor in 2015 after an exacerbation of his depressive symptoms.  Transcript at 29.  

As the January 2016 hearing testimony suggests potential suicidal ideation, as well as recent treatment following an exacerbation of symptoms, it appears the Veteran's major depressive disorder has worsened since the 2011 VA examination. Thus, a new psychiatric examination is warranted. 

On VA psychiatric examination on August 2, 2017, an examiner summarized the Veteran's level of disability as Occupational and social impairment with reduced reliability and productivity.  The Veteran lived with his wife of 27 years and their daughter.  He stated that for the past couple years he had had little energy to do things outside of work.  He was on good terms with his adult son and they saw each other every couple of weeks. 

The Veteran has 2 other children by his first marriage and one from a separate relationship.  His 32-year-old daughter, who was married with two daughters, had breast cancer and had a 3 – 5 year life expectancy.  They lived with him for 9 months last year when the son-in-law was not working.  His other daughter, age 33, lived with her husband and 3 children.  The Veteran's other son is 34 or 35 years old and lived in Longview.  They had minimal contact and the Veteran stated that he was not in that son’s life when the boy was growing up.  He had always had more of a relationship with his younger sister.  

As to social relationships, the Veteran reported that he did not have much outside his family.  He attended community groups through their church.  He used to be more social and involved in the community and with family.  He had stopped attending church a couple years ago because he felt as if he was pushed out by the membership.  As to activities and leisure pursuits, he read scripture, did woodworking, worked on his vehicles, hunted and fished.  However, he went hunting at his mother's place only once last year.  He helped run the high school concession stand.  His main focus was on his 18-year-old daughter.  

Occupationally, the Veteran had worked in the same position since 2008 as a personnel security specialist.  He reported that his current medications were a bar against advancement at work "because it is a national security position."  He had taken an online course at to work on a master’s degree in homeland security but did not finish the first week because he could not focus.  He reported that he had a lot of things going on at work and at home and wanted to give up but could not because of his family.  He denied history of assaults or assaultive behavior.  He denied drug and substance abuse.  

The examiner reported that the Veteran’s symptoms were a depressed mood; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; and difficulty in establishing and maintaining effective work and social relationships.   He was dressed in casual clothing.  He was in no acute distress.  His intellectual functioning was estimated to be average.  His mood was "down, depressed."  His affect was appropriate to the content of the discussion in both intensity and direction.  His thought processes were clear, logical, linear, coherent and goal directed. He made appropriate eye contact and was cooperative.  There was no impairment of thought process or communication, and the rate and flow of speech was within normal limits.  His ability to maintain minimal personal hygiene, and other basic activities of daily living was intact.  He was fully oriented and his memory was good.  The Veteran reported having difficulty concentrating but denied panic attacks and obsessive or ritualistic behaviors that interfered with routine activities.  No impairment of impulse control was noted.  

The Veteran self-evaluated his level of depression as being 7 or 8, out of 10, on a daily basis but denied having any anxiety.  He denied current delusions and hallucinations.  He denied suicidal or homicidal thoughts, ideation or plans or intent.  He reported sleeping 4 hours nightly and having problems initiating and maintaining sleep.  

The examiner reported that the Veteran could manage his financial affairs and the diagnosis was a major depressive disorder, recurrent, moderate.  He was primarily relying on non-VA prescribed antidepressant.  He was not receiving mental health counseling, citing previous problems with accessing services.  The examiner noted that since the 2011 psychiatric examination the Veteran and his family had had a number of serious psychosocial situations causing additional stress.  These included, but were not limited to, his father's death in 2013, mother's greater dependence on the Veteran, his daughter's recent breast cancer diagnosis, and wife's depression.  He was provided information about the Cohen Military Family Clinic as an alternative and possibly more flexible option for family and individual psychological services.  

Analysis

Major depressive disorder in excess of 30 percent prior to August 2, 2017

Prior to August 2, 2017, the evidence showed that the Veteran was not seeking or receiving psychiatric treatment.  In fact, at the 2008 examination he felt that he did not need treatment.  The findings at the time of the 2008 rating examination are similar to those at the time of the September 2011 rating examination.  On each occasion, the examiner was of the opinion that the Veteran’s social and occupational impairment was no more than mild.  While he did not have any relationships outside of his family, his relationships within his family were good.

One of the Veteran’s complaints during the relevant time frame was sleep disturbance.  Another is depression.  While at the 2011 examination he reported having had one instance of passive suicidal ideation in 2008, he denied suicidal, and homicidal, ideation at the 2008 examination and did not report currently having either at the 2011 examination.  

While the Veteran had mild deficits in concentration skills at the 2008 examination, neither that examination nor the examination in 2011 found that he had impairment of his memory.  The evidence is simply not persuasive in establishing that he had impaired memory, much less of such extent as to result in retention of only highly learned material or forgetting to complete tasks.  The currently assigned 30 percent rating contemplates mild memory impairment, but even this is not shown.  

Also, there was no impairment in the Veteran's ability to communicate, including no circumstantial, circumlocutory, or stereotyped speech.  Likewise, the evidence did not demonstrate that he has impairment in abstract thinking or in understanding complex commands.  Similarly, he did not have panic attacks or impairment of judgement, motivation or mood of such extent as to cause difficulty in establishing and maintaining effective work and social relationships in light of the evidence that he had good family relationships.  While he had diminished social relationships outside of his family, he had maintained employment for many years.  

Given the foregoing, the evidence does not persuasively show that with considering his lack of need for medication and on-going therapy that his symptoms resulted in the occupational and social impairment contemplated in a higher rating.

Accordingly, the Board finds that the preponderance of the evidence is against the claim of a rating in excess of 30 percent prior to August 2, 2017.  

Major depressive disorder in excess of 50 percent since August 2, 2017

After thoroughly reviewing the evidence, the Board finds that the Veteran’s psychiatric disorder is characterized by the signs or symptoms such as difficulty getting along with others when at work, sleep impairment for which he takes medication, depressed mood which like his sleep is improved with medication, decreased motivation, and impaired insight and judgment.  The Board finds that these symptoms are similar to many of those contemplated by the currently assigned 50 percent rating, or the even lower 30 percent rating.

The General Rating Formula lists, inter alia, depressed mood, anxiety, suspiciousness, and chronic sleep impairment, among the types of symptoms associated with a 30 percent rating.  These are not unlike those the Board finds to be associated with this Veteran’s major depressive disorder.  Id.

The 70 percent rating criteria contemplate deficiencies in “most areas,” including work, school, family relations, judgment, thinking, or mood, such deficiencies must be “due to” the symptoms listed for that rating level, “or others or others of similar severity, frequency, and duration.”  Vazquez–Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013).  That is, simply because this Veteran has depressed mood, and because the 70 percent level contemplates a deficiency in “mood” among other areas, does not mean his psychiatric disorder rises to the 70 percent level.  Indeed, the 30 percent, 50 percent, and 70 percent criteria each contemplate some form of mood impairment.  The Board, instead, must look to the frequency, severity, and duration of the impairment.  Id.  Here, the Veteran’s depressed mood is expressly contemplated by the 30 percent criteria, or at best, the 50 percent criteria, which contemplates “disturbances” in mood.  38 C.F.R. § 4.130.  The Veteran is adequately compensated for that impairment.  The same holds true for any potential impaired in insight and judgment, i.e., the 50 percent rating already compensates him for “impaired judgment.”  

The 2017 examination reflects, again, some evidence of depression, impaired concentration, and additionally mild memory loss.  However, he denied panic attacks and obsessive or ritualistic behaviors that interfered with routine activities, delusions and hallucinations, as well as suicidal or homicidal thoughts, ideation or plans or intent, and there was no impairment of impulse control.  Rather, his affect was appropriate, his thought processes were clear, there was no impairment of thought process or communication, including his speech, or his ability to maintain minimal personal hygiene, and other basic activities of daily living was intact. The Veteran reported having difficulty concentrating but the examiner found that he was fully oriented and his memory was good.  

The Board also finds that the Veteran’s psychiatric symptoms cause occupational and social impairment to at least some degree.  Given the frequency, nature, and duration of those symptoms, the Board finds that they result in no more than occupational and social impairment with reduced reliability and productivity.  They do not more closely approximate the types of symptoms contemplated by a 70 percent rating and, therefore, a 70 percent rating is not warranted.  See Vazquez-Claudio, 713 F.3d at 114 (holding that a veteran “may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration”).  

Thus, since August 2, 2017, the Veteran’s psychiatric disorder has not warranted a rating in excess of 50 percent.  
Musculoskeletal Disorders

Functional loss from musculoskeletal disability may be due to pain which is supported by adequate pathology and evidenced by the visible behavior on motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use is regarded as seriously disabled.  38 C.F.R. §§ 4.40, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance."  Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (quoting 38 C.F.R. § 4.40).  Actually painful, unstable or malaligned joints warrant at least a minimum compensable rating.  Diseased joints may be manifested by crepitation on motion in the tendons or ligaments, or within join structures.  38 C.F.R. § 4.40.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any other factors.  See id.  Together, DC 5003 and 38 C.F.R. § 4.59 provide that painful motion due to arthritis that is established by x-ray is deemed to be limited motion and warrants the minimum compensable rating, even if there is no actual limitation of motion.  Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991).  The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis and must be considered when properly raised.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

Because Diagnostic Code (DC) 5003 (rating arthritis) requires that “satisfactory of evidence of pain” be “objectively confirmed,” a Veteran's testimony, alone, is not enough.  For the minimum compensable rating for painful joint motion which is not actually limited to a compensable degree, a claimant’s bare statement is not satisfactory evidence of painful motion.  Petitti v. McDonald, 27 Vet. App. 415 (2015) (per curiam) (painful motion may be “objectively confirmed” by either a clinician, including a statement there is a history of "recurrent" joint pain or a layperson who witnessed functional difficulty or displays of a facial expression indicative of pain).    

Spinal Ratings

Under the Diagnostic Code (DC) 5243, intervertebral disc syndrome (IVDS) is rated 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, whichever method results in the higher rating.  See Bierman v. Brown, 6 Vet. App. 125 (1994).  However, assigning separate ratings for combination may not be permitted to result in pyramiding under 38 C.F.R. § 4.14 - which prohibits "[t]he evaluation of the same disability under various diagnoses".  See Brady v. Brown, 4 Vet. App. 203, 206 (1993).  See, too, Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (the critical element is if symptoms of one condition are duplicative of or overlapping of another).  Thus, a rating for IVDS may not be assigned while at the same time assigning separate ratings for the orthopedic and the neurologic components of IVDS.  

As to incapacitating episodes, if there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20% rating is warranted.  If there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40% rating is warranted.  If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a maximum 60% rating is warranted.  The IVDS rating criteria do not provide for an evaluation in excess of 60% on the basis of the total duration of incapacitating episodes.  

Note 1 to the DC 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by and treatment by a physician.  Supplementary Information in the published final regulations states that treatment by a physician would not require a visit to a physician's office or hospital but would include telephone consultation with a physician.  If there are no records of the need for bed rest and treatment, by regulation, there are no incapacitating episodes.  67 Fed. Reg. 54345, 54347 (August 22, 2002).   

As noted above, the Veteran has not initiated, much less perfected, appeals from rating decisions addressing the ratings, based on peripheral nerve rating criteria, assigned for any radicular symptoms of the upper or lower extremities.  Accordingly, the ratings assigned for impairment due to radicular symptoms of the upper or lower extremities are not before the Board.  Thus, the ratings assigned for the service-connected disabilities of the cervical spine and for the thoracolumbar spine must be assigned under either the General Rating Formula for Diseases and Injuries of the Spine, for DCs 5235 to 5242) or degenerative disc disease (DDD), i.e., IVDS, under DC 5243.  

However, in this case there is no evidence of no records of the need for treatment and bed rest prescribed by a physician as to either the Veteran’s service-connected cervical spine disability or his thoracolumbar spine disability.  Since the Veteran had never been prescribed bed rest by a physician, he cannot have had "incapacitating episodes" within the meaning of the rating criteria in the Formula for Rating IVDS Based on Incapacitating episodes at 38 C.F.R. § 4.71a, Diagnostic Code 5243.  It necessarily follows that the appropriate ratings may be assigned only for the orthopedic manifestations. 

Note 6 to this General Rating Formula provides that the thoracolumbar and cervical spinal segments are to be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.
6.  A rating for cervical degenerative and traumatic arthritis in excess of 10% prior to August 28, 2012; 20% from August 28, 2012, to August 1, 2017; and in excess of 30 percent since August 1, 2017

Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching of the spine.  It provides ratings based on limited spinal motion in either forward flexion or the combined ranges of motion of a spinal segment, or for either favorable or unfavorable ankylosis, or with respect to the entire spine a loss of more than 50 percent vertebral body height due to vertebral fracture or muscle spasm and guarding.  

This General Rating Formula provides that as to ratings for the cervical spine, a 10% rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the cervical spine 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% or more of the height (10 percent).  

A 20% rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  

A 30% rating is assigned when forward flexion of the cervical spine is 15 degrees or less; or there is favorable ankylosis of the entire cervical spine.  A 40% rating is assigned if there is unfavorable ankylosis of the entire cervical spine; and a 100% rating may be assigned if there is unfavorable ankylosis of the entire spine.  

Note 2 to this General Rating Formula provides that for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the cervical spine is 340 degrees.  Note 4 provides that Round each range of motion measurement to the nearest five degrees.

Background

The Veteran's cervical spine disorder is rated 10 percent disabling prior to August 28, 2012; 20 percent disabling from August 28, 2012, to August 1, 2017; and 30% since August 1, 2017.  

On VA examination on October 8, 2008 the Veteran had a normal gait.  On physical examination he had tenderness of the cervical paraspinal musculature but he did not have cervical pain or radiation of cervical pain.  He reported having soreness of his jaw and neck muscles due to temporomandibular joint (TMJ) syndrome.  Cervical spine motion was from 0 degrees of extension to 45 degrees of flexion, right and left lateral rotation were to 80 degrees, and right and left lateral bending were to 45 degrees.  There was a slight pulling sensation in his neck in all planes of motion.  Motor strength was 5/5 in all muscle groups of the upper extremities, bilaterally.  Sensation was intact in all dermatome of the upper extremities.  Reflexes were absent in the upper extremities.  There were no flare-ups.  There was no additional limitation following repetitive use other than increased pain without further loss of motion.  There was no effect of incoordination, fatigue, weakness, or lack of endurance.  The diagnosis was cervical myalgia of the jaw secondary to TMJ syndrome.  

On VA cervical spine examination of August 28, 2012, the Veteran complained of bilateral neck and trapezius muscle pain on neck motion.  He did not report that flare-ups impacted cervical spine function.  On examination cervical flexion was to 30 degrees, with pain beginning at that point.  Extension was to 30 degrees, with pain beginning at that point.  Right and left lateral bending were each to 10 degrees, with pain beginning at that point.  Right rotation was to 80 degrees, with pain beginning at that point, and left rotation was to 45 degrees, with pain beginning at that point.  These ranges of motion were unchanged after repetitive use testing of 3 repetitions.  The examiner reported that there was functional loss or impairment due to limited and painful motion.  There was no localized tenderness or pain to palpation of the soft tissue of the cervical spine and no muscle spasm or guarding.  There was no indication of impaired gait and he did not use an assistive device for ambulation.  Strength in the upper extremities was normal at 5/5, throughout, and there was no muscle atrophy.  Sensation was normal throughout the upper extremities but reflexes were 1+ throughout.  It was reported that the Veteran did not have IVDS and did not have any radicular pain or other signs or symptoms of radiculopathy.  The examiner reported that the cervical spine condition did not impact on the Veteran’s ability to work.  An X-ray revealed a degenerated C5-C6 disc.  

The Veteran submitted a copy of a January 2013 MRI report related to the cervical spine, conducted by a private clinician.  Multilevel degenerative disc spondylosis and mild facet hypertrophy throughout the cervical spine was found.  Also noted were C3-4 borderline central stenosis, left foraminal stenosis and moderate right foraminal encroachment; C6-7 bilateral foraminal stenosis with no central stenosis; C4-5 and C5-6 moderate foraminal encroachment with no central stenosis; and straightening of the cervical spine.  

February 2013 VA clinical notes show reports of neck pain.  The Veteran stated that he continues to see a private physician and may require surgery if therapy and injections do not work.  

On VA cervical spinal examination on August 1, 2017, the record was reviewed.  The Veteran had chronic daily posterior neck pain which radiated into his posterior shoulders and trapezius muscles.  He was being followed by Pain Management and was on daily OxyContin and Tizanidine.  He had had cervical epidural steroid injections in the past.  He also had radiation of pain/numbness/tingling into his bilateral upper extremities, on an intermittent basis.  He was right handed.  He reported having flare-ups consisting of increased pain and stiffness.  He described his functional impairment as being stiffness and upper extremity radiculopathy.  

On examination cervical flexion was to 15 degrees, extension was to 25 degrees, right lateral bending was to 30 degrees, left lateral bending was to 35 degrees, right rotation was to 40 degrees, and left rotation was to 50 degrees, for a total of 195 degrees of range of motion.  There was pain on all motion.  He had bilateral lower paracervical and upper diffuse trapezius muscle tenderness.  He could perform 3 repetitions of motion and without any additional loss of motion.  Because there was no current flare-up it could not be determined if pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups, without mere speculation.  There was no guarding or muscle spasm.  Testing of upper extremity strength revealed active movement against some resistance or normal strength and deep tendon reflexes and sensations were normal in both upper extremities.  He had mild radiculopathy of each upper extremity in the upper radicular nerve roots distribution.  The examiner reported that the Veteran did not have IVDS of the cervical spine.  

The Veteran's cervical spine disorder impacted his ability to work by limiting his ability to perform repetitive heavy lifting/pushing/pulling, as well as any overhead work.  

On VA thoracolumbar spinal examination on August 1, 2017, the record was reviewed.  The examiner reported that the Veteran had marked stiffness of the cervical spine but there were no upper extremity radicular findings.  X-rays showed worsening cervical DDD/DJD.  The examiner reported that he had reviewed the prior VA examinations, and believed that the current more severe cervical and lumbar disability findings were simply a normal progression, i.e., worsening, of the conditions, and that therefore there was no indication that the prior ratings and findings were inadequate.  

On VA neurology evaluation of September 17, 2012, it was noted that he was right handed.  Strength was normal in the upper extremities.  Reflexes and sensory examination to light touch was normal throughout the upper extremities.  His gait was normal.  Examination of all upper extremity nerves was normal.   

Analysis

A VA examination in August 2017 found that the Veteran had bilateral shoulder DJD with impingement syndrome but the examiner opined that it was less likely as not that these conditions were caused or aggravated by the cervical spine disability.  Thus, impairment from such bilateral shoulder DJD and impingement syndrome may not be considered for the purpose of evaluating the severity of the service-connected cervical degenerative and traumatic arthritis (previously classified as cervical myalgia).  

A rating for cervical degenerative and traumatic arthritis in excess of 10% prior to August 28, 2012

The October 2008 rating examination found that cervical flexion was to 80 degrees and the combined ranges of motion was to 295 degrees and, thus, under applicable rating criteria this did not warrant a rating in excess of 10%.  Similarly, there was no additional loss of motion after repetition of motion, although here was increased pain.  Likewise, there was no evidence muscle spasm or guarding, and the tenderness of his neck muscles was due to TMJ syndrome, which is separately assigned a noncompensable disability evaluation.  There was also no evidence of a vertebral fracture.  

The 2008 VA examiner stated that the was no effect as to incoordination, fatigue, weakness or lack of endurance.  Thus, although the Veteran has increased pain on repetitive motion, the evidence that there is no effect as to incoordination, fatigue, weakness or lack of endurance warrants the conclusion that even with consideration given to such factors, the cervical spine disability did not warrant a disability rating in excess of 10% prior to August 28, 2012.  

A rating for cervical degenerative and traumatic arthritis in excess of 20% from August 28, 2012 to August 1, 2017

The August 28, 2012, rating examination found that the Veteran had a combined range of motion of the cervical spine of 205 degrees but a 20% rating was assigned because cervical spine flexion was to no more than 30 degrees.  His ranges of motion were unchanged after repetition of motion and there was no muscle spasm or soft tissue tenderness or pain.  Significantly, the Veteran did not report having any flare-ups that impacted function of his cervical spine.  

In fact, the 2012 VA examiner stated that while the Veteran had functional loss or impairment due to limited and painful motion, the cervical spine disorder did not impact the Veteran’s ability to work.  A January 2013 MRI confirmed the presence of cervical DDD and a February 2013 VA treatment note confirmed complaints of neck pain.  However, although the 2012 examination found that pain limited the Veteran’s cervical spine motion, the cervical spine disability did not warrant a disability rating in excess of 20% from August 28, 2012, to August 1, 2017.  

A rating for cervical degenerative and traumatic arthritis in excess of 30% since August 1, 2017

Under applicable rating criteria, entitlement to a 30% disability rating is first shown at the time of the August 1, 2017, rating examination when flexion of the cervical spine was limited to no more than 15 degrees.  A higher schedular rating is not warranted in the absence of unfavorable ankylosis of the cervical spine or the entire spine, neither of which are demonstrated by the evidence.  

The 2017 VA examiner reported that the cervical spine disorder limited the Veteran’s ability to work by precluding heavy lifting, or equivalent activities, and overhead work.  However, the fact that the Veteran’s combined range of motion of the cervical spine was found, at the August 1, 2017, rating examination to be 195 degrees, which is such a substantially remaining amount of cervical spine motion, the disability did not more closely approximate unfavorable cervical spine ankylosis.  

Accordingly, since August 1, 2017, the cervical spine disability has not more closely approximated the criteria for a rating in excess of 30%.
7.  A rating for PO residuals of lumbar fusion, prior to July 14, 2010; in excess of 20 percent since November 1, 2010; and in excess of 40 percent since August 28, 2012

The Veteran's service-connected lumbar fusion was initially evaluated as 20 percent disabling prior to July 14, 2010; then rated as 100 percent disabling from July 14, 2010 to October 31, 2010; then 20 percent disabling from November 1, 2010, to August 28, 2012, and as 40 percent disabling thereafter.  Thus, the 20% rating prior to July 14, 2010, and since November 1, 2010, are on appeal, as is the 40% rating since August 28, 2012. 

Background

On VA examination on October 8, 2008 the Veteran had a normal gait.  Lumbar range of motion was from 0 degrees of extension, with pain, to 70 degrees of flexion with a further loss of 20 degrees after repetitive motion with pain throughout.  Right and left lateral rotation were to 30 degrees with sight pain, and right lateral bending was to 25 degrees and left lateral bending was to 20 degrees, with right central low back pain.  Straight leg raising was negative to 90 degrees in the sitting position, bilaterally.  Motor strength was 5/5 in all muscle groups of the lower extremities.  Motor strength was 5/5 in all muscle groups of the lower extremities, bilaterally.  Sensation was intact in all dermatomes of the lower extremities, except for the left L5 dermatome.  Reflexes were absent in the upper extremities and were 1+ at the knees and ankles, bilaterally.  There were no flare-ups.  There was no additional limitation following repetitive use other than increased pain without further loss of motion.  There was no effect of incoordination, fatigue, weakness, or lack of endurance.  The diagnosis was lumbar fusion from L5 to S1 with continued nerve root irritation signs and myofascial syndrome.  

On VA examination of August 28, 2012, the diagnosis was failed back surgical syndrome, because complications of his first surgery necessitated a second surgery.  He now had chronic low back pain with left radicular pain to the left great toe.  He used Oxycontin and Oxycodone, daily.  He had very limited activities due to his back disorder.  The Veteran did not report having flare-ups of his back disorder.  

On examination thoracolumbar flexion was to 10 degrees, with pain beginning at that point.  Extension was to 5 degrees, with pain beginning at that point.  Right lateral bending and left lateral bending were each to 10 degrees, with pain beginning at that point.  Right rotation was to 10 degrees, with pain beginning at that point.  Left rotation was to 20 degrees, with pain beginning at that point.  He was able to perform 3 repetitions of motion and his ranges of motion remained unchanged.  The examiner reported that the Veteran had functional loss or impairment due to limited and painful motion, excess fatigability, incoordination, instability of station, disturbance of locomotion, interference with sitting, and occasional giving way of the left leg.  The Veteran had slight tenderness of the lower lumbar and sacroiliac area but no muscle spasm or guarding.  Strength was 5/5 throughout both lower extremities except for being 4/5 at the left hip and left great toe, but there was no muscle atrophy.  Reflexes were 1+ at the left knee and left ankle but absent at the right knee and right ankle.  Sensations were normal in both legs except for being decreased in the left L4/L5/S1 dermatome.  Straight leg raising was negative on the right and positive on the left.  It was reported that the Veteran had radicular symptoms in the left leg which were mild paresthesias and/or dysesthesias, and mild numbness involving the left sciatic nerve root of L4/L5/S1 with the overall involvement being moderate.  There were no other neurologic abnormalities, e.g., of the bowel pathologic reflexes but had a neurogenic bladder.  It was reported that the Veteran did not have IVDS of the thoracolumbar spine.  He constantly used braces as assistive devices for locomotion.  There was no vertebral fracture.  

The examiner reported that the low back disorder impacted the Veteran’s ability to work in that he was employed as a security specialist and only did scheduling.  He could perform sedentary and light work only with frequent rest periods.  

At his January 2016 hearing, the Veteran reported constant pain in his lumbar spine.  He reported accommodations being made for him at work so that he does not always stand or always sit, because prolonged standing, prolonged walking, and prolonged sitting, all affect him, which limits his ability to advance at work.  Transcript at pages 17 and 18.  He reported having had three lumbar surgeries.  He suggested that the third surgery involved a loosening of screws in his back, which was constructed as a cage.  He reported that this cage was now pushing on his nerve canal causing more pain, such that some days he could not even walk.  Page 18.  He confirmed at the hearing that he did not experience pain to a degree that bed rest is required, but testified that he required daily use of medication to manage the pain, consisting of 20 mgm. of OxyContin twice, a day and additional medication up to five times per day for breakthrough pain.  He reported the breakthrough pain daily, every four hours.  Pages 20-21.  His wife confirmed this pattern of pain and pain management, and reported that he worked through the pain, then had to lay down when he got home and rest on the weekends.  Pages 22-23.  

On VA neurology examination in August 2017 the Veteran’s gait was normal and he did not use an assistive device for locomotion.  Strength in knee flexion was 4/5, bilaterally, but normal at 5/5 in plantar flexion and dorsiflexion of both ankles.  It was stated that there was no muscle weakness in either lower extremity.  There was no muscle atrophy.  Deep tendon reflexes (DTRs) were normal at 2+ in both knees and both ankles.  

On VA thoracolumbar spinal examination on August 1, 2017, the record was reviewed.  Historically, the Veteran was diagnosed in 2003 with a herniated nucleus pulposi (HNP) at L5-S1 and received conservative care until 2007, which also included opiate medications.  He underwent an initial L5-S1 fusion with cage placement in December 2007, followed by a revision in 2008.  He continued to have problems and imaging studies in 2010 confirmed the prior L5-S1 fusion with left sided foraminal stenosis and impingement suspected.  Then, in July 2010, he had revision of the prior fusion because of misplaced hardware with left sided radiculopathy.  

Thereafter, the Veteran had continued to have problems with chronic daily pain and left lower extremity radiculopathy.  He took OxyContin for pain, and Oxycodone 5 breakthrough pain.  He also took medication for muscle spasm and was followed by Pain Management.  He had problems left lower extremity radiculopathy and with a neurogenic bladder, and self-catheterized daily, and had some erectile dysfunction problems but his bowel function was normal.  He did not report having flare-ups of the thoracolumbar spine disorder.  He described his functional impairment as stiffness, weakness, and left lower extremity radiculopathy.  

On physical examination thoracolumbar extension was to 15 degrees, and he had 20 degrees of flexion, as well as lateral bending and rotation, in each direction (for a total of 115 degrees of range of motion).  He had pain in all planes of motion and on weight-bearing.  He had diffused local tenderness at the lower paralumbar muscles and sacroiliac joints, bilaterally, on the left greater than the right.  He could perform 3 repetitions of motion but without additional loss of function or range of motion.  No guarding or spasm was noted.  Strength at the hips and ankles was normal but decreased at the (service-connected) knees and in great toe extension, bilaterally.  Deep tendon reflexes were normal, at 2+, at the knees and ankles.  Sensation was intact to light touch except for being decreased on the left at the foot and toes (the L5 distribution).  straight leg raising was positive, bilaterally.  He had bilateral sciatic nerve root involvement, and had mild radiculopathy in the left lower extremity, based on pain paresthesia, dysesthesia and numbness, but none in the right.  He had intervertebral disc syndrome (IVDS) but no episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months.  He did not use an assistive device to ambulate.

The examiner stated that current lower back condition would limit the Veteran’s ability to perform all but sedentary to light physical activities.  In summary, the examiner reported that the Veteran had marked stiffness of the lumbar spinal segment.  There was left L5-S1 loss of sensation at the lateral foot.  X-rays showed the lumbar spine fusion is stable and in normal alignment. 

The Veteran required high daily opiate doses for his lower back pain.  He essentially had a failed laminectomy syndrome and was followed by pain management.  He would unfortunately continue to have moderately severe problems with his lower back for the rest of his life.  About effects on occupational functioning/daily activities, the Veteran was capable of only sedentary to light work activities as defined by the Department of Labor.  Additionally, he would have difficulty with any overhead work or prolonged/repetitive reaching or standing/walking.  

Finally, about retroactive application of the cervical/lumbar spine disabilities, the examiner reported that he had reviewed the prior VA examinations, and believed that the current more severe cervical and lumbar disability findings were simply a normal progression/worsening of the involved conditions, and that therefore there was no indication that the prior ratings and findings were inadequate.  

In October 2017 the examiner that conducted the VA thoracolumbar spinal examination on August 1, 2017, stated the Veteran had decreased bilateral knee strength, right great toe extension of 4/5, and left great toe extension of 3/5.  The decreased bilateral great toe extension strength is due to the residual effects of the chronic LS DDD/DJD with IVDS at L5-S1 and the failed laminectomy syndrome, since the L5 nerve root innervates the great toe and exits the spinal cord at the level of the L5-S1 disc.  Right lower extremity radiculopathy was of mild severity.  However, the decreased bilateral knee strength was due to moderate bilateral knee arthritis.  

On VA neurology evaluation of September 17, 2012, it was reported that the Veteran had left lower extremity radiculopathy.  On examination it was noted that his left lower extremity radiculopathy was manifested by moderate paresthesias and/or dysesthesias, and numbness.  Strength was normal in the lower extremities, except for 4/5 strength of left ankle dorsiflexion.  Reflexes and sensory examination to light touch were normal throughout the lower extremities.  There were no trophic changes.  His gait was normal.  Examination was normal of all lower extremity nerves except for mild incomplete paralysis of the left sciatic nerve.  He did not use any assistive device as a normal mode of locomotion.  The examiner reported that the Veteran’s peripheral nerve condition did not impact the Veteran’s ability to work.  

The examiner reported that as to RLS, the Veteran’s history and current clinical findings were not consistent with that diagnosis and, so, he was unlikely to have RLS.  It was more likely that his symptomatology was due to radiculopathy of the left lower extremity related to his back disability.  

 
Analysis

Note 2 to the General Rating Formula provides that normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The sum of these is the combined range of motion, which for the thoracolumbar spine is 240 degrees.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Note 5 of the General Rating Formula.  

A 20% rating is warranted for limited thoracolumbar motion when forward flexion is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion is not greater than 120 degrees (the maximum combined range of motion being 240 degrees); or if there is either (1) muscle spasm or (2) guarding severe enough to result in abnormal gait or abnormal spinal contour, e.g., scoliosis, reversed lordosis, or abnormal kyphosis.  

A 40% rating is warranted for limited thoracolumbar motion when forward flexion is to 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Note 5 of the General Rating Formula.  A 50% rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and 100% for unfavorable ankylosis of the entire spine.  Ankylosis is immobility and consolidation of a joint due to disease, injury or surgical procedure.  Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465 (1993); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995); and Dinsay v. Brown, 9 Vet. App. 79, 81 (1996).  

 
A rating for PO residuals of lumbar fusion, in excess of 20 percent prior to July 14, 2010

The VA examination in October 2008 found that the Veteran had thoracolumbar flexion to 70 degrees, with an additional loss of 20 degrees after repetitive motion, i.e., to only 50 degrees after repetitive motion.  This warranted the assignment of a 20 percent schedular rating.  

To warrant the next higher rating of 40% there had to have been thoracolumbar flexion which was limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  The October 2008 examination found that the combined range of thoracolumbar motion in all planes was 175 degrees.  This did not more closely approximate favorable thoracolumbar spine ankylosis.  In fact, that examiner stated that there was no effect of incoordination, fatigue, weakness, or lack of endurance.  Moreover, the examination reported that the Veteran did not have flare-ups.  

Accordingly, prior to July 14, 2010, the thoracolumbar disability has not more closely approximated the criteria for a rating in excess of 20%.  

A rating for PO residuals of lumbar fusion in excess of 20 percent since November 1, 2010

As with the time period prior to July 14, 2010, the VA examination in October 2008 found that the Veteran had thoracolumbar flexion to 70 degrees, with an additional loss of 20 degrees after repetitive motion, i.e., to only 50 degrees after repetitive motion.  This warranted the assignment of a 20 percent schedular rating.  

To warrant the next higher rating of 40% there had to have been thoracolumbar flexion which was limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  The October 2008 examination found that the combined range of thoracolumbar motion in all planes was 175 degrees.  This did not more closely approximate favorable thoracolumbar spine ankylosis.  In fact, that examiner stated that there was no effect of incoordination, fatigue, weakness, or lack of endurance.  Moreover, the examination reported that the Veteran did not have flare-ups.  

Accordingly, since November 1, 2010, the thoracolumbar disability has not more closely approximated the criteria for a rating in excess of 20%.   

A rating for PO residuals of lumbar fusion in excess of 40 percent since August 28, 2012

In order to have warranted a rating in excess of 40% since August 28, 2012, the Veteran would have had to have either unfavorable ankylosis of the entire thoracolumbar spine, for a 60% rating, or unfavorable ankylosis of the entire spine, for a 100% rating.  Neither is shown at any time.  While the August 28, 2012, examination found that the Veteran had severely limited thoracolumbar motion, he had a remaining 10 degrees of flexion and a combined range of motion of 65 degrees.  Subsequent VA rating examination in August 2017 found that flexion was to 20 degrees and there was a combined range of thoracolumbar motion of 115 degrees.  These did not more closely approximate unfavorable thoracolumbar spine ankylosis.  

Accordingly, since August 12, 2012, the thoracolumbar disability has not more closely approximated the criteria for a rating in excess of 40%.  
Knee Rating Criteria

As a preliminary matter, the Board notes that the evidence fails to show that the following diagnostic codes are applicable in the present case: 5256 (ankylosis of the knee); 5262 (impairment of tibia and fibula); and 5263 (genu recurvatum). 
Pain, swelling, locking, and crepitus of a knee may be compensated under the DCs for limited motion, i. e., DCs 5260 and 5261.  Lyles v. Shulkin, No. 16-0994, slip op. at 14 (U.S. Vet. App. Nov. 29, 2017) (acknowledging popping and grinding as symptoms of crepitus and that to the extent that crepitus or locking cause disturbance of locomotion, sitting, standing, and weight-bearing they are contemplated under § 4.45(f)).  

Separate ratings may be assigned for limited knee motion in flexion and in extension, as well as for instability, under DCs 5260, 5261, and 5257.  VA Gen. Counsel. Prec 23-97 (July 1, 1997) (a DC need not include an exhaustive list of symptoms) and, additionally a separate compensable rating may be assigned for menisceal pathology under DCs 5258 or 5259.  Lyles v. Shulkin, No. 16-0994, slip op. at 10 (U.S. Vet. App. Nov. 29, 2017).  

Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2017). 

Under DC 5257 a 10% rating is warranted where there is slight recurrent subluxation or lateral instability; 20% rating when moderate; and 30% when severe. 

Under DC 5258 a 20% rating is warranted for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.  Where there is symptomatic removal of semilunar cartilage, a 10% rating is warranted under 38 C.F.R. § 4.71a, DC 5259. 

Under DC 5260, a noncompensable rating is warranted where knee flexion is limited to 60 degrees; 10% rating if limited to 45 degrees; 20% if limited to 30 degrees; and 30% if limited to 15 degrees. 

Under DC 5261 a noncompensable rating is warranted where knee extension is limited to 5 degrees; 10% rating if limited to 10 degrees; 20% if limited to 15 degrees; 30% if limited to 20 degrees; 40% if limited to 30 degrees; and 50% if limited to 45 degrees. 

Background

The Veteran has appealed the initial ratings assigned for his right and left knee disabilities.  His right and knee patellofemoral pain syndrome each are presently rated as 10 percent disabling since June 1, 2008.  Separate 10 percent ratings were awarded for instability for each knee, effective March 5, 2010. 

On VA examination of October 8, 2008, it was noted that the Veteran had had arthroscopic debridement of a right medial meniscus tear in 1993.  He now complained of popping and clicking associated with pain in each knee.  He reported that his right knee would occasionally give way.  He had no periods of flare-ups.  Currently, he did not use any assistive device or brace but he had used a brace in the past with little benefit.  There was no effect on his occupation or activities of daily living.  His gait was normal.  

On physical examination the knees were similar in appearance.  He had slight medal instability with valgus stress testing of the right knee but not the left knee.  He had full range of motion of each knee, from 0 degrees of extension to 140 degrees of flexion with patellofemoral crepitus and pain throughout.  The only additional limitation following repetitive use was increased pain without further loss of range of motion.  There were no flare-ups.  He had a positive patella grind test, bilaterally.  There was a negative Lachman’s test and no effusion, bilaterally.  There was no effect of incoordination, fatigue, weakness or lack of endurance on joint function.  The diagnosis was bilateral PFS with mild medial laxity of the right knee after a medial menisceal debridement in 1993, via arthroscopy.  

On VA examination of September 30, 2011, it was reported that the Veteran had right knee osteoarthritis, and bilateral PFS.  The Veteran reported that since his 2008 evaluation his knees had been weak and he had had swelling.  He reported that his left leg was more painful, due to a nerve injury from his service-connected back disorder.  He reported that flare-ups impacted function but, on the other hand, he stated that is pain was always at the same level, being 4.5/10 in intensity.  

On physical examination right knee flexion was to 110 degrees, with pain beginning at 80 degrees, and after 3 repetitions of motion it was to only 90 degrees.  Left knee flexion was to 100 degrees, with pain beginning at 70 degrees, and after 3 repetitions of motion it was to only 90 degrees.  The examiner reported that the Veteran had functional loss or impairment due to limited and painful motion and swelling, bilaterally.  There was tenderness or pain to palpation of the joint line or soft tissue of each knee.  Strength was 4/5 in knee flexion and extension, bilaterally.  The knees were stable except as to medial-lateral instability as to which there was instability in each knee of 1+ (Grade 1), being from 0 – to 5 millimeters.  There was no history of recurrent patellar subluxation or dislocation.  Patellar grinding test was positive, bilaterally.  

As to the Veteran past right medial meniscectomy, he had or had had frequent episodes of joint locking and joint pain in the right knee, but no such symptoms in the left knee.  However, it was also reported that he did not have residual signs and/or symptoms of a meniscectomy.  He did not use an assistive device as a normal mode of locomotion.  X-rays had revealed degenerative changes in the right knee with narrowing of the medial joint space.  There was no X-ray evidence of patellar subluxation.  

As to the impact of the Veteran’s knee conditions on his ability to work it was reported that he worked at a desk for 8 hours a day and had special accomodation for his back.  

At the January 2016 hearing, the Veteran reported sometimes not being able to lift himself up because his knees will give way.  He reported the right knee was worse and would sometimes give way all of a sudden while walking.  Transcript at page 26. 

On VA examination of the Veteran’s knees on August 1, 2017, the record was reviewed and an examiner rendered diagnoses of bilateral PFS and degenerative arthritis.  Historically, in 1993 the Veteran underwent diagnostic arthroscopy with excision of a suprapatellar and medial plica but he had not had any further knee surgeries.  Over the past decade or so, his bilateral knees seem to have become more symptomatic, with grinding and pooping with movement and some intermittent stiffness as well.  He wore knee braces as needed.  The Veteran reported having had flare-ups consisting of increased pain, weakness, and stiffness.  He reported having functional impairment, including on repeated use over time, which consisted of weakness.  

On physical examination the Veteran had full flexion and extension of each knee, and he had pain on flexion which did not result in or cause functional loss.  He was able to perform 3 repetitions of motion without any loss of range of motion.  There was no evidence of pain with weight bearing.  He had tenderness of the infrapatellar area of each knee, and right, but not left, medial joint line tenderness.  Because the examination was not conducted during a flare-up the examiner was unable to state, without mere speculation, whether a flare-up caused pain, weakness, fatigability or incoordination which significantly limited functional ability with repeated use.  There was a slight reduction in strength, being 4/5, in flexion and extension in each knee due to his service-connected disabilities but there was no muscle atrophy.  There was no history of recurrent subluxation, lateral instability or effusion of either knee.  Joint stability testing was performed and all such testing was normal in each knee.  He had not had recurrent patellar dislocations or a menisceal condition.  He occasionally used knee braces as ambulatory aids.  X-rays revealed progressive bilateral medial compartment DJD with narrowing, right worse than left.  

The examiner stated that the Veteran’s knee disabilities limited his ability to perform repetitive climbing or squatting.  In summary, the examiner stated that the Veteran had bilateral knee tenderness and weakness, but also full range of motion and no laxity or instability.  X-rays showed bilateral knee DJD of moderate degree, which was a worsening compared to 2011.  His bilateral knee PFS had now progressed to bilateral knee DJD, right greater than left.  As to occupational functioning/daily activities, this would limit his ability to perform prolonged kneeling and repetitive climbing or squatting.  

On VA neurology examination in August 2017 the Veteran’s gait was normal and he did not use an assistive device for locomotion.  Strength in knee flexion was 4/5, bilaterally.  There was no muscle weakness in either lower extremity and no muscle atrophy.  Deep tendon reflexes (DTRs) were normal at 2+ in both knees and both ankles.

Initial Considerations

The descriptive words "slight", "moderate", and "severe" as used in DC 5257, under which the RO has rated the service-connected instability of the knees, are not defined in the VA Schedule for Rating Disabilities.  38 C.F.R. § 4.6.  Use of such terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

DC 5257 doesn't speak to the type of evidence required and, thus, objective medical evidence isn't required to establish lateral knee instability under that DC.”  English v. Wilkie, No. 17-2083, slip op. at 1 and 2 (U.S. Vet. App. Nov. 1, 2018) (panel decision).  Thus, objective medical or clinical evidence of instability, such as examination findings, are not categorically more probative than lay evidence.  

However, as with pain, such symptoms as subluxation and instability are subjectively experienced and lay evidence of such symptoms is by its very nature subjective in nature.  Perceptions of subjective sensations, e.g., pain, subluxation, instability, may vary significantly from one person to another as can the description of both the actual symptoms and the subjective perception of the function impact of such symptom(s).  

Pain alone is not measurable by any clinical standard or clinical test and the impact as well as the perception of pain is by its nature subjective and its production of disablement is not capable of accurate measurement.  Many disabilities can be productive of pain, and most are productive of pain.  While pain can be disabling, and is a consideration for rating purposes in all cases, lay descriptions of perceived of functional loss or impairment can vary widely and, so, are not the best means of determining the overall dysfunction of a disorder, which may well include factors other than pain.  

Objective clinical tests, being standardized, provide a better means of determining the overall dysfunction due to a disability.  Range of motion testing is one such test, and another is testing of range of motion after use, including repetitive motion.  Likewise, instability, is capable to objective measurement, in terms of the range of instability or subluxation as measured in millimeters.  For example, a proposed regulatory amendment of 38 C.F.R. § 4.71a, DC 5257 intends to consider the degree of joint translation in establishing three grades of subluxation or instability, with Grade I being defined as 0 – 5 millimeters (mms.), Grade 2 being 6 – 10 mms., and Grade 3 being equal to or greater than 11 mms.  See 82 Fed. Reg. 35728 (Aug. 1, 2017).
9.  A rating in excess of 10 percent for instability of the right knee

Although the August 2017 VA examination found that on joint stability testing the right knee was normal, prior examinations in October 2008 and September 2011 found otherwise.  The 2008 examination found slight medial instability of the right knee and the 2011 examination found no more than Grade 1 instability in the right knee.  Such instability would account for the Veteran’s report at the 2017 examination of using knee braces as needed, in light of his complaint of giving way of the right knee.  However, this need is not constant and the absence of instability at the time of the 2017 examination indicates that any instability has not progressed in severity.  

Accordingly, the preponderance of the evidence is against the assignment of a rating in excess of 10% for right knee instability.  

In this regard, the Veteran had surgery on his right knee during service which has been reported to have been a meniscectomy.  While he has reported, such as at the 2008 examination, having popping and clicking associated with pain, at that examination he reported that this occurred in each knee.  Since he has not had surgery on his left knee, and because the symptoms occur in each knee, such symptoms must be attributed to his bilateral PFS of each knee and not to being, in the right knee, a residual of his inservice right knee surgery.  Likewise, while he has complained of some swelling, there is no evidence of either locking of the right knee or effusion into the right knee joint.  In fact, while at the 2011 examination it was reported that he had or had had frequent episodes of joint locking, it was specifically reported that he had no current no residual signs or symptoms of a meniscectomy.  Thus, reasonable interpreted, that comment must mean that the Veteran had had episodes of locking in the past but not at the 2011 examination, and no such complaints were reported at the 2008 examination.  Accordingly, a separate compensable rating is not warranted for residuals of the inservice right knee surgery under DC 5259, symptomatic residuals of excision of semilunar cartilage, or DC 5258, dislocated semilunar cartilage with locking, pain, and effusion.  

10.  A rating in excess of 10 percent for PFS of the right knee

The current 10% rating for right knee PFS encompasses painful but a noncompensable degree of limitation of motion.  Repeated testing of the Veteran’s ranges of right knee motion have never documented that he has a compensable degree of limited right knee flexion or extension.  This rating also encompasses the Veteran’s patellofemoral crepitus.  With respect to the impact of any flare-ups, at the 2008 examination it was reported that there were no flare-ups, and while at the 2011 examination he reported that flare-ups impacted function, he also reported that his pain was always the same, being 4.5/10.  At the 2011 examination he had pain though 30 degrees of flexion and an additional loss of 20 degrees of right knee flexion after repetitive motion but this is still to a noncompensable degree of limited motion.  

At the 2008 examination, when there were no flare-ups, the only additional limitation after repetitive motion was increased pain throughout range of motion.  At the 2011 examination he reported having had more weakness and swelling, and the examiner reported that there was functional impairment from swelling and limited as well as painful motion.  At the 2017 examination he reported having flare-ups of increased pain, weakness, and stiffness.  This suggests a worsening of his right knee disability, as corroborated by X-rays at that time which documented increased arthritis, which was now moderate in severity, and worse in the right knee.  Nevertheless, the 2017 examination found no pain on weight-bearing and repeated examinations have never found more than slight weakness.  That 2017 examination noted that the PFS had progressed to arthritis and his disability limited prolonged kneeling and repetitive climbing or squatting.  However, there is muscle atrophy and no impairment of the Veteran’s gait.  For these reasons and bases, the Board finds that the service-connected right PFS is not of such severity as to warrant a rating in excess of the current 10% disability now assigned.  

11.  A rating in excess of 10 percent for instability of the left knee

Although the August 2017 VA examination found that on joint stability testing the left knee was normal, and the prior examination in October 2008 also found no instability in the left knee, the 2011 examination found no more than Grade 1 instability in the left knee.  Such instability would account for the Veteran’s report at the 2017 examination of using knee braces as needed.  However, this need is not constant and the absence of instability at the time of the 2017 examination indicates that any instability has not progressed in severity.  Accordingly, the preponderance of the evidence is against the assignment of a rating in excess of 10% for left knee instability.  

12.  A rating in excess of 10 percent for PFS of the left knee

The current 10% rating for left knee PFS encompasses painful but a noncompensable degree of limitation of motion.  Repeated testing of the Veteran’s ranges of left knee motion have never documented that he has a compensable degree of limited left knee flexion or extension.  This rating also encompasses the Veteran’s patellofemoral crepitus.  With respect to the impact of any flare-ups, at the 2008 examination it was reported that there were no flare-ups, and while at the 2011 examination he reported that flare-ups impacted function, he also reported that his pain was always the same, being 4.5/10.  At the 2011 examination he had pain though 30 degrees of flexion and an additional loss of 10 degrees of left knee flexion after repetitive motion but this is still to a noncompensable degree of limited motion.  

At the 2008 examination, when there were no flare-ups, the only additional limitation after repetitive motion was increased pain throughout range of motion.  At the 2011 examination he reported having had more weakness and swelling, and the examiner reported that there was functional impairment from swelling and limited as well as painful motion.  At the 2017 examination he reported having flare-ups of increased pain, weakness, and stiffness.  That 2017 examination noted that the PFS had progressed to arthritis, this suggests a worsening of his left knee disability, as corroborated by X-rays at that time which documented arthritis, which was now moderate in severity.  

 
Nevertheless, the 2017 examination found no pain on weight-bearing and repeated examinations have never found more than slight weakness.  That 2017 examination noted that the PFS with arthritis limited prolonged kneeling and repetitive climbing or squatting.  However, there is muscle atrophy and no impairment of the Veteran’s gait.  For these reasons and bases, the Board finds that the service-connected left PFS is not of such severity as to warrant a rating in excess of the current 10% disability now assigned.  
 
DEBORAH W. SINGLETON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs