Citation Nr: 1808652 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 06-15 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial compensable rating prior to January 5, 2010, and a rating in excess of 30 percent thereafter for a right knee disability. 2. Entitlement to an initial rating in excess of 30 percent for diffuse degenerative changes, status post instrumentation and fusion, from C3 to C7 (cervical spine disability). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel INTRODUCTION The Veteran had active service from October 1971 to October 1973 and from June 1974 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in part, granted service connection for diffuse degenerative changes, status post instrumentation and fusion, from C3 to C7, and assigned a 30 percent rating, effective August 16, 2004, and granted service connection for a right knee condition, assigning a noncompensable rating effective August 16, 2004 and a 30 percent rating effective January 5, 2010. The Veteran expressed disagreement with the assigned ratings in a June 2011 written brief presentation submitted by the Veteran's representative. In May 2012 and September 2016, the Board remanded the case for additional development and it now returns for further appellate review. FINDINGS OF FACT 1. For the period prior to January 5, 2010, the Veteran's right knee disability was manifested by painful motion. 2. For the period from January 5, 2010, the Veteran's right knee disability was manifested by limitation of extension of no worse than 20 degrees. 3. The Veteran's cervical spine disability is manifested by no more than forward flexion limited to 15 degrees or less; there is no showing of favorable or unfavorable ankylosis. CONCLUSIONS OF LAW 1. For the period prior to January 5, 2010, the criteria for a 10 percent rating, but no higher, for the Veteran's right knee disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2017). 2. For the period from January 5, 2010, the criteria for a rating in excess of 30 percent for the Veteran's right knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2017). 2. The criteria for a rating in excess of 30 percent for diffuse degenerative changes, status post instrumentation and fusion, from C3 to C7, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Right Knee Disability Historically, service connection was denied for a right knee condition in a December 2004 rating decision. The Veteran perfected an appeal of that denial, and the Board remanded the claim in a February 2009 decision. In the June 2010 rating decision on appeal, the RO granted service connection for a right knee condition and assigned a noncompensable rating from August 16, 2004 and a 30 percent rating from January 5, 2010. Throughout the entire period on appeal, the Veteran's right knee disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5261, for limitation of extension. He contends that higher ratings are warranted. See June 2011 Appellate Brief. Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. While the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant Diagnostic Codes for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, and lateral instability and recurrent subluxation of the knee. The Board will explore all possibilities in this case. Under Diagnostic Code 5261, a 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees and a 30 percent rating is warranted where extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. Diagnostic Code 5260 rates based on limitation of flexion, and provides for a noncompensable rating where flexion is limited to 60 degrees; a 10 percent rating where flexion is limited to 45 degrees; a 20 percent rating is warranted where flexion is limited to 30 degrees; and a 30 percent rating is warranted where flexion is limited to 15 degrees. Other Diagnostic Codes pertaining to the knee include Diagnostic Code 5257, under which 10, 20, and 30 percent ratings are warranted for slight, moderate, or severe recurrent subluxation or lateral instability, respectively. Under Diagnostic Code 5258, a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Diagnostic Code 5259 holds that symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under that diagnostic code. The diagnostic criteria applicable to impairment of the tibia and fibula are found at 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under that code, a 10 percent evaluation is warranted when malunion of the tibia and fibula is productive of slight knee or ankle disability. A 20 percent evaluation is warranted when malunion of the tibia and fibula is productive of moderate knee or ankle disability, and a 30 percent evaluation is warranted when such disability is marked. A 40 percent evaluation is warranted for nonunion of the tibia and fibula, with loose motion, requiring a brace. Diagnostic Code 5263 is the rating code for genu recurvatum. Genu recurvatum is a deformity in the knee in which the knee bends backwards. VA's General Counsel has stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Prior to January 5, 2010, the evidence of record pertaining to the Veteran's right knee includes a January 2005 VA examination report, records of private treatment and the Veteran's lay statements. Pertinently, at the January 2005 VA examination, the Veteran's right knee had full range of motion. Indeed, flexion was shown to be to 140 degrees and extension to 0 degrees. Moreover, range of motion was not additionally limited by pain, weakness, fatigue, lack of endurance, or incoordination after repetitive use. The Drawer test of the right knee was within normal limits, indicating no ligament problems, or problems with instability. See January 2005 VA Examination Report. Pertinently however, an October 24, 2004 private treatment report from the V.M.G. notes that the Veteran complained of knee pain, and was prescribed Darvocet for knee arthritis. The Veteran has consistently reported experiencing knee pain throughout the appeal period, and the Board finds no reason to call into question his observations. As noted above, painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). To the such painful motion must be objectively confirmed, the Board finds that the October 24, 2004 assessment of knee pain by his private physician, with notation of use of Darvocet (a pain reliever) to treat knee arthritis serves to do so. See Petitti v. McDonald, 27 Vet.App. 415 (2015). Accordingly, an initial rating of 10 percent, but no higher, is warranted for the Veteran's right knee disability, for all times prior to January 5, 2010. Regarding the period from January 5, 2010, the Veteran underwent a VA examination on that date. He stated that he had constant pain in his right knee that was worse while walking. He said he had balance issues, but did not use a brace. He reported the use of a front-wheeled walker. He did not report having any flare-ups of the right knee over the prior six months. On range of motion testing of the right knee, the Veteran had flexion to 95 degrees and extension to 20 degrees, with tenderness in the medial joint line. He was stable to varus and valgus stress and anterior and posterior drawer. There was no obvious crepitus, and his McMurray sign was negative. Range of motion was not limited by pain, weakness, incoordination, fatigability, or lack of endurance on repetitive motion or flares. A July 2010 statement from a private treating physician indicated that the Veteran was unable to engage in prolonged standing or walking, and used a cane and a walker. Pursuant to a September 2016 Board decision, the Veteran underwent another VA examination in October 2016. The Veteran reported that he was unable to stand without assistance, except for transferring from his power scooter to a chair with the use of a cane. He said he was unable to bear his full weight on his knees due to pain and weakness, limiting him to sedentary activity. He did not report experiencing flare-ups of the knee. Range of motion testing showed flexion of the right knee to 90 degrees, and extension from to 0 degrees. Pain was noted on exam causing functional loss. After three repetitions, flexion on the right knee was to 80 degrees, and extension was to 20 degrees. The examiner noted no ankylosis, no history of recurrent subluxation or lateral instability, no recurrent effusion, no tibial and/or fibular impairment, and no history of a semilunar cartilage condition. The examiner was unable to test range of motion on passive movement because it was too painful for the Veteran to complete, but noted that the measurements would likely have been the same as those recorded after the Veteran performed multiple repetitions. The examiner was similarly unable to test weight bearing because in his wheelchair, the Veteran was unable to bear weight without assistance. Non-weight bearing range of motion testing showed the same measurements as was noted after three repetitions. Based on the foregoing, from January 5, 2010, a rating in excess of 30 percent for limitation of extension is not warranted as extension was not shown to be limited to 30 degrees or higher and flexion was not shown to be limited to 60 degrees, even considering functional loss due to pain. The Board has considered the DeLuca provisions in reaching the above conclusion. The Board notes that the Veteran's complaints of pain, inability to walk or stand for prolonged periods, and weakness, were considered by the examiner. Indeed, repetitive motion testing showed decreased range of motion, which supports the assigned 30 percent rating. As for flexion, even with pain, the Veteran could extend to 80 degrees. Thus, even considering the Veteran's pain and resultant limitation of motion after repetitive use, he is shown to have had at least 80 degrees of flexion, which is well in excess of the 45 degrees required for a compensable rating, and 20 degrees of flexion. As noted above, the Veteran has not reported experiencing flare-ups of his knee. Additionally, as the evidence of record fails to demonstrate ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to higher or separate ratings under 5256, 5257, 5258, 5259, 5262, or 5263, respectively, in the right knee. In sum, a compensable rating for the Veteran's right knee disability is not warranted prior to January 5, 2010, and a rating in excess of 30 percent is not warranted from January 5, 2010. Cervical Spine Disability Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12 month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12 month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12 month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12 month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record shows that the Veteran has experienced IVDS in his cervical spine during the period on appeal. Specifically, the March 2016 VA examiner noted that the Veteran suffers from IVDS. It was further noted that the Veteran has not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician over the previous 12 months. Required bed rest is a fundamental element for an evaluation under this section of the rating schedule, and the absence of any prescribed bed rest precludes a rating under these criteria. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran's cervical strain under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. Under this formula, a 30 percent rating is warranted where there is evidence of forward flexion of the cervical spine of 15 degrees or less, or favorable ankylosis of the entire spine; a 40 percent rating is warranted where there is evidence of unfavorable ankylosis of the entire cervical spine; and a 100 percent rating contemplates unfavorable ankylosis of the entire spine. See Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007) (ankylosis is the "immobility and consolidation of a joint due to disease, injury, or surgical procedure."). Note (1) to the General Rating Formula for Diseases and Injuries of the Spine specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate Diagnostic Code. Note (2) to the General Rating Formula explains 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. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The Court has instructed that in applying these regulations, VA should obtain examinations in which the examiner determines whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 208 (1995). In light of the lay and medical evidence of record, the Board finds that a rating in excess of 30 percent is not warranted at any time during the appeal period. The Veteran has been in receipt of a 30 percent rating for his cervical spine disability since August 2004; such rating is the highest available for limitation of range of motion. The only available ratings in excess of 30 percent ratings are 40 percent, which requires unfavorable ankylosis of the entire cervical spine, and 100 percent, which requires ankylosis of the entire spine. No objective medical evidence has shown ankylosis of the Veteran's spine, and the Veteran has not asserted as much. In this regard, the Veteran underwent VA examinations to assess his cervical spine in January 2010 and October 2016. On examination in January 2010, his range of motion of the cervical spine was 0 to 10 degrees of flexion, 0 to 10 degrees of extension, left rotation of 0 to 20 degrees, right rotation of 0 to 15 degrees, left lateral bending of 0 to 50 degrees, and right lateral bending of 0 to 5 degrees. Range of motion was limited by pain and weakness, but not by incoordination, fatigability, or lack of endurance. There was no indication of favorable or unfavorable ankylosis. At the October 2016 VA examination, the Veteran had forward flexion of 0 to 15 degrees, extension to 0 degrees, right and left lateral flexion to 5 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. The examiner noted that ankylosis of the spine was not present. Although treatment records document longstanding treatment for neck pain, as well as two instances where the Veteran underwent surgery (both of which have been compensated by a temporary total 100 percent rating), at no time has ankylosis of the cervical spine been shown by the record. As the Veteran is already in receipt of the maximum available schedular rating based on limitation of motion of the cervical spine, and since the Veteran can indeed move his neck, no additional range of motion testing (whether in weight-bearing, non-weightbearing, active or passive motion, or during flares or after repetitive use) would avail the Veteran. As such, further consideration of functional loss due to pain under 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet.App. 202 (1995) is not required. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Thus, an increased evaluation is not warranted. Finally, with regard to objective neurological abnormalities associated with the Veteran's cervical spine disability, the Board notes that the Veteran is already separately service-connected for cervical radiculopathy of the right and left upper extremities associated with his cervical spine disability. No other neurological impairments have been shown by the record. Accordingly, the assignment of a separate rating based on objective neurological abnormalities is not warranted any time during the period on appeal. In sum, throughout the entire appeal period, the Veteran met the criteria for a rating of 30 percent, but no higher, for his cervical spine disability. A rating in excess of 30 percent is not warranted because at no point has the Veteran had ankylosis of the cervical or entire spine, nor has he had IVDS that warranted prescribed bed rest. ORDER The assignment of an initial rating of 10 percent, but no higher, for the Veteran's right knee disability prior to January 5, 2010, is granted. Entitlement to a rating in excess of 30 percent from January 5, 2010 to the present day for a right knee disability, is denied. Entitlement to a rating in excess of 30 percent for diffuse degenerative changes status post instrumentation and fusion, from C3 to C7, is denied. ____________________________________________ V. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs