Citation Nr: 18156113 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-48 394 DATE: December 7, 2018 ORDER Entitlement to a temporary 100 percent evaluation under 38 C.F.R. § 4.29, based on hospitalization, is denied. Entitlement to a disability rating in excess of 20 percent for a lumbar spine disorder, prior to July 7, 2016, is denied. Entitlement to a disability rating in excess of 40 percent for a lumbar spine disorder from July 7, 2016, is denied Entitlement to a disability rating in excess of 20 percent for cervical spine disorder is denied. Entitlement to a disability rating in excess of 10 percent for a thoracic spine disorder is denied. Entitlement to a compensable disability rating for a headache disorder is denied. Entitlement to a disability rating in excess of 10 percent for right knee painful flexion is denied. Entitlement to a disability rating in excess of 10 percent for left knee painful flexion is denied. Entitlement to a separate 10 percent evaluation for right knee instability is granted. Entitlement to a separate 10 percent evaluation for left knee instability is granted. FINDINGS OF FACT 1. The Veteran was not hospitalized for over 21 days in 2010 for treatment for service-connected disabilities. 2. Prior to July 7, 2016, a lumbar spine disorder was not manifested by forward flexion of 30 degrees or less. 3. From July 7, 2016, a lumbar spine disorder was not manifested by unfavorable ankylosis of the entire thoracolumbar spine. 4. For the duration of the appellate period, cervical disorder was not manifested by forward flexion greater than 15 degrees but not greater than 30 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. 5. For the duration of the appellate period, thoracic spine disorder was manifested by no worse than moderate limitation of motion. 6. For the duration of the appellate period, a headache disorder was not manifested by characteristic prostrating attacks averaging one every two months. 7. For the duration of the appellate period, right knee disorder was manifested by flexion limited to no worse than 60 degrees, with pain, slight medial-lateral instability, and an old tear of the semilunar cartilage with pain and swelling. 8. For the duration of the appellate period, left knee disorder was manifested by flexion limited to no worse than 60 degrees, with pain, slight medial-lateral instability, and an old tear of the semilunar cartilage with pain and swelling. CONCLUSIONS OF LAW 1. The criteria for a temporary total rating under 38 C.F.R. § 4.29 based on hospitalization over 21 days in 2010 for service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.29 (2017). 2. Prior to July 7, 2016, the criteria for an evaluation in excess of 20 percent for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5237 (2017). 3. From July 7, 2016, the criteria for an evaluation in excess of 40 percent for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5237 (2017). 4. For the duration of the appellate period, the criteria for an evaluation in excess of 20 percent for cervical spine disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5237 (2017). 5. For the duration of the appellate period, the criteria for a disability rating in excess of 10 percent for thoracic spine disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5291 (2000). 6. For the duration of the appellate period, the criteria for a compensable disability rating for a headache disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2017). 7. For the duration of the appellate period, the criteria for an evaluation in excess of 10 percent for right knee painful flexion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5014-5260 (2017). 8. For the duration of the appellate period, the criteria for an evaluation in excess of 10 percent for left knee painful flexion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5014-5260 (2017). 9. For the duration of the appellate period, the criteria for a separate 10 percent evaluation for right knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). 10. For the duration of the appellate period, the criteria for a separate 10 percent evaluation for left knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the United States Marine Corps from June 1987 to April 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal of May 2013 and January 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The May 2013 decision denied entitlement to benefits under 38 C.F.R. § 4.29, while the remaining issues were addressed in the January 2014 decision. The Veteran initiated appeals on multiple prior occasions dating back to the early 1990’s but repeatedly failed to perfect them. In one instance the Veteran notified VA that he had not received the statement of the case, as he had moved, and requested remailing. VA accommodated him, at the address he provided, but he still failed to reply in a timely fashion. The correct procedural history is therefore as set forth above.   Temporary Total Ratings under Paragraph 29 The Veteran contends that he is entitled to a temporary total disability rating for a hospitalization that occurred between May 19, 2010 and September 16, 2010. Under 38 C.F.R. § 4.29, a temporary total disability rating will be assigned when it is established that a service-connected disability has required hospitalization at a VA medical center or other approved hospital for more than 21 days or for hospital observation at VA expense for a service-connected disability for more than 21 days. 38 C.F.R. § 4.29. VA treatment records show that the Veteran was hospitalized at a VA medical center (VAMC) for treatment of alcoholism and posttraumatic stress disorder (PTSD) in September 2010. However, the Veteran was not service-connected for any psychiatric and/or substance-related disorder at the time of the 2010 VAMC hospitalization. While hospitalized he was also not treated for more than 21 days for one of his service-connected disabilities, to include lumbar strain; cervical strain, folliculitis with alopecia and residual scars; chondromalacia of the right and left knee; thoracic strain; or healed fracture of the 5th metacarpal, right hand. Therefore, the claim must be denied as a matter of law. Increased Ratings In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.§ 5107 (2012); 38 C.F.R. § 3.102; Gilbert v. Derwinski, Vet. 1 App. 49, 55-57 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Thoracic Spine The Veteran has been rated as 10 percent disabled for a thoracic, or dorsal, spine disability, since April 12, 1990. As this grant of service connection and rating have been in effect for more than 20 years, they are protected. 38 C.F.R. §§ 3.951, 3.957. Further, the criteria for rating disabilities of the spine were revised effective September 23, 2002 and September 26, 2003; Code 5291 was eliminated on the latter date. Prior, it provided that slight limitation of motion of the dorsal/thoracic spine was rated 0 percent disabling. Moderate or severe limitation was rated 10 percent disabling. No higher rating is available under Code 5291, and hence no increased rating may be assigned. Lumbar and Cervical Spine Disorders Either of two sets of criteria may be applied in rating a spine disability when disc disease is involved. The disc disease may be rated based on the cumulative amount of time in which the condition was incapacitating over the prior 12 months, or based upon the degree of limitation of motion. 38 C.F.R. § 4.71a. An “incapacitating episode” for purposes of totaling the cumulative time is defined as “period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. Records reflect no periods of bed rest or total incapacitation. The Veteran has competently and credibly reported episodes of increased symptoms. However, in the absence of any medical statement indicating that bed rest and regular treatment were required during those periods, the definition of “incapacitating episode” has not been met at any time during the appellate period. Evaluation under these criteria is therefore not appropriate. Under the alternative General Rating Formula for Diseases and Injuries of the Spine, the disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 20 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent evaluation is warranted where there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine, and if ankylosis impacts the entire spine and is unfavorable, a 100 percent rating is warranted. 38 C.F.R. § 4.71a. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion for the thoracolumbar spine is 240 degrees. Id. In August 2013, VA received the Veteran’s Review of Social Security Administration (SSA), which, in large part, replicate other evidence in the record which has no bearing on the degree of impairment during the appellate period. In October 2013, a VA examiner provided diagnoses of lumbar stenosis and degenerative disc disease (DDD). Forward flexion was at worst to 45 degrees and extension was at worst to 10 degrees. Combined range of motion was at worst to 95 degrees. The Veteran noted that he experiences functional limitation manifested by increased pain with prolonged standing and use during flare-ups and repetitive use. Intervertebral disc syndrome (IVDS) and neurological abnormalities were not present. The examiner did not report unfavorable ankylosis. As to the cervical spine disorder, the examiner provided a diagnosis of degenerative arthritis. Forward flexion was at worst to 30 degrees and extension was at worst to 20 degrees. Combined range of motion was at worst to 130 degrees. The Veteran noted that he experiences functional limitation manifested by decreased movement with repeated use; however, he did not indicate that he experiences flare-ups. IVDS and neurological abnormalities were not present. X-ray imaging studies did reveal the presence of arthritis. Here too, the examiner did not report the presence of unfavorable ankylosis. In April 2015, a VA independent needs interview report was received. The interviewer noted that the Veteran reported chronic pain and spinal stenosis. A review of the Veteran’s private medical records shows that the Veteran sought consultation for his thoracolumbar spine disorder for several years through 2015. Dr. S., the Veteran’s physician, monitored the Veteran’s progress and prescribed medication. Dr. s. reported that the Veteran’s use of prescribed medication provided adequate relief and “good” efficacy. In July 2016, a VA examiner provided a diagnosis of lumbago. Forward flexion was at worst to 30 degrees and extension was at worst to 20 degrees. Combined range of motion was at worst to 220 degrees. Pain upon locomotion was present. The examiner reported that examination took place during a flare-up. Guarding, localized tenderness, and muscle spasm—all of which did not result in abnormal gait or contour—were present. While IVDS was present, the Veteran did not report acute signs or symptoms and required bedrest or treatment by a physician in the previous 12 months. The examiner opined that there was no unfavorable ankylosis of the lumbar spine. Imaging revealed mild DDD, without bulging or herniation. As to the cervical spine disorder, the examiner provided a diagnosis of cervicalgia. Forward flexion was at worst to 35 degrees and extension was at worst to 35 degrees. Combined range of motion was at worst to 130 degrees. The examiner indicated that neither IVDS nor unfavorable ankylosis were present. Imaging revealed a mild abnormality, qualified as mild degenerative changes. Prior to July 7, 2016, the Veteran had a 20 percent disability rating assigned for his lumbar spine. To receive a higher disability rating, there would need to be a showing of forward flexion of 30 degrees or less, or for unfavorable ankylosis of the entire thoracolumbar spine. Such is not shown on any examination or in any treatment record, even upon consideration of the actual functional impact of the DeLuca factors. The movement and activity described by the Veteran does not reflect a disability picture resembling a higher degree of impairment in the low back. From July 7, 2016, a 40 percent disability rating is assigned. To receive a higher evaluation from July 7, 2016, there would need to be a showing of unfavorable ankylosis of the entire thoracolumbar spine. Such is not shown; there is no ankylosis of any kind, as the Veteran retains motion and movement in all segments of the spine. Regarding the cervical spine, a 20 percent disability rating is assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. To receive a higher disability rating, there would need to be a showing of forward flexion to 15 degrees or less; or, unfavorable ankylosis of the entire cervical spine. Neither is shown. Measured ranges of motion on examination, and subjective descriptions of movement by the Veteran and in treatment exceed the needed level, even upon consideration of the impact of pain and repeated movement. Headache Disorder For the duration of the appellate period, the Veteran’s headache disorder was evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. That Code provides that very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. When characteristic prostrating attacks occur an average of once a month over the last several months, a 30 percent rating is warranted. A 10 percent rating is assigned for characteristic prostrating attacks averaging one every two months over the last several months. Less frequent attacks are not compensable. 38 C.F.R. § 4.124a, Diagnostic Code 8100. In October 2013, a VA examiner noted that the Veteran had been diagnosed with headaches in the 1990’s. He reported taking medications, but did not state how often. He experienced nausea and vomiting with the pain, as well as light and sound sensitivity. The headaches lasted less than a day and were not prostrating or described as frequent or very frequent. The described frequency and duration of the Veteran’s headaches during the appellate timeframe simply does not warrant an increased, compensable evaluation. Left and Right Knee Disorder When service connection for the knees was granted, Diagnostic Code 5257 was employed, and has been used continually since. This Code applies to “other” impairments of the knee, specifically subluxation and instability, but was historically used by VA as a catch-all Code for unlisted but diagnosed disabilities such as patellofemoral pain syndrome (PFPS). It is clear from a longitudinal reading of all rating decisions and allegations involving the knees, however, that the disability which has always been claimed, discussed, and service-connected has been one based on limitation of motion, and hence is more appropriately rated under a Code other than 5257. Accordingly, the Board herein is changing the label assigned to the currently service-connected left and right knee disorders, but altering nothing about their substance. For limitation of motion, there are three potentially applicable Diagnostic Codes. Diagnostic Code 5260 assigns evaluations based on limitation of flexion. Limitation to 60 degrees merits a noncompensable, or 0 percent, evaluation. A 10 percent evaluation is assigned for limitation to 45 degrees. Limitation to 30 degrees flexion warrants a 20 percent evaluation, and a 30 percent evaluation is assigned for limitation to 15 degrees of flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension is rated under Diagnostic Code 5261. A noncompensable evaluation is assigned for limitation to 5 degrees. A 10 percent evaluation is for assignment when extension is limited to 10 degrees. 15 degrees limitation merits a 20 percent evaluation, and 20 degrees merits a 30 percent evaluation. Limitation to 30 degrees is evaluated as 40 percent disabling, and limitation to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Finally, Diagnostic Code 5003, for degenerative arthritis, provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. VA treatment records reveal that the Veteran complained of chronic pain in his right knee and his left knee. VA clinicians also took note of his complaints of instability in both knees. Throughout this period of on-going treatment, the Veteran contended that chronic knee pain impacted his ability to walk and perform daily functions. At the October 2013 VA examination, diagnoses of bilateral patellofemoral pain syndrome and bilateral meniscal tears were noted. The Veteran reported ongoing knee pan since service, though he denied flare-ups. On examination, right and left knee flexion was to 60 degrees; extension was full to 0 degrees. Pain was present at the end of flexion. Repetitive motion caused no additional functional impairment, though some swelling was noted and the joint was tender to palpation. Mild medial-lateral instability was present with testing, and the past meniscal tears has resulted in frequent episodes of pain and effusion. The Veteran had never has surgery. X-rays did not show arthritis. The measured limitation of motion in flexion is not compensable under Code 5260; it is, however, painful, and it is the intent of VA to compensate Veterans for functional impairment of joints due to pain under 38 C.F.R. § 4.59. No greater evaluation is available, however, in the absence of greater limitation of motion, and so the appeal must be denied. To be clear, the Board has changed the Diagnostic Code assigned to the service-connected left and right knee disabilities from 5257 to 5260, and continued the previously assigned 10 percent rating on the same basis as previously assigned, for slight but painful limitation of motion. Further, the Board finds that a separate 10 percent rating for each knee is warranted with correct application of Code 5257, as slight instability of each joint is objectively measured. (Continued on the next page)   While a history of meniscal damage is also noted, no compensable ratings under Codes 5258 or 5259 are not for application here, as the manifestations they rely on (postsurgical “symptoms” or frequent episodes of "locking," pain, and effusion into the joint overlap too greatly with the pain and swelling resulting in the assignment of ratings under 38 C.F.R. § 4.59. Double compensation, or pyramiding, is prohibited. 38 C.F.R. § 4.14. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel