Citation Nr: 1817290 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 08-35 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis of the cervical spine, prior to June 20, 2017. 2. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the cervical spine, from June 20, 2017. 3. Entitlement to an initial evaluation in excess of 20 percent for a medial meniscus tear of the left knee. 4. Entitlement to an initial evaluation in excess of 10 percent for bicipital tendinitis of the left shoulder, prior to June 20, 2017. 5. Entitlement to a rating in excess of 20 percent for bicipital tendonitis with glenohumeral joint osteoarthritis and acromioclavicular joint osteoarthritis (previously rated as bicipital tendonitis, left shoulder), from June 20, 2017. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel INTRODUCTION The Veteran has active service from August 1975 to September 1983 and from December 1999 to December 2006. He also has periods of reserve duty. This appeal initially came before the Board of Veterans' Appeals (Board or BVA) from an April 2007 rating decision of the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA), which assigned 10 percent initial evaluations for the claims on appeal. In October 2015, the Board entered a decision on these issues, denying the increased rating claims which the exception of a partial grant of increased rating for left knee disability. By October 2015 Board and RO decision, the left knee disability evaluation was increased to 20 percent effective December 28, 2006. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In January 2017, the parties submitted a Joint Motion for Partial Remand (Joint Motion) to the Court. The Joint Motion requested that the Court vacate and remand that part of the October 2015 Board decision which denied entitlement to initial evaluations in excess of 10 percent for degenerative arthritis of the cervical spine and for bicipital tendinitis, left shoulder, and in excess of 20 percent for residuals of a medial meniscus tear of the left knee. The Joint Motion was granted in January 2017, and incorporated into the Court's Order remanding the appeal. The claims were returned to the Board, and in April 2017, the Board entered a remand. All remand instructions are complete. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions). The claims are now again returned to the Board. By December 2017 rating decision, the RO increased to 20 percent, effective June 20, 2017, the evaluation of bicipital tendonitis with glenohumeral joint osteoarthritis and acromioclavicular joint osteoarthritis (previously rated as bicipital tendonitis, left shoulder), and the evaluation of degenerative arthritis of the cervical spine. The increased rating constitutes a partial grant of the benefits sought on appeal; therefore, the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). FINDINGS OF FACT 1. Prior to February 10, 2014, the Veteran's cervical spine disability did not manifest with combined range of motion of the cervical spine not greater than 170 degrees. 2. From February 10, 2014, the Veteran's cervical spine disability did manifest with combined range of motion of the cervical spine not greater than 170 degrees. At no point has the Veteran's cervical spine disability exhibited forward flexion of the cervical spine 15 degrees or less or ankylosis. 3. For the duration of the appeal, the Veteran's left knee disability has not manifested with flexion limited to 45 degrees, extension limited to 10 degrees, or instability. 4. Prior to February 10, 2014, the Veteran's left shoulder disability manifested with painful, limited motion but did not limit the arm to shoulder level. 5. From February 10, 2014, the Veteran's left shoulder disability resulted in limitation of the arm to shoulder level, but was not limited to 45 degrees or worse at any point during the appeal. CONCLUSIONS OF LAW 1. Prior to February 10, 2014, the criteria for an initial evaluation in excess of 10 percent for the Veteran's service-connected cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5010-5242 (2017). 2. From February 10, 2014, the criteria for an evaluation of 20 percent, but no higher, for the Veteran's service-connected cervical spine disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5010-5242 (2017). 3. The criteria for an initial evaluation in excess of 20 percent for the Veteran's service-connected left knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5258-5259 (2017). 4. Prior to February 10, 2014, the criteria for an initial evaluation in excess of 10 percent for the Veteran's service-connected left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5099-5024, 5003-5201 (2017). 5. From February 10, 2014, the criteria for an evaluation of 20 percent, but no higher, for the Veteran's service-connected left shoulder disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5099-5024, 5003-5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist January 2007, October 2012, and January 2014 letters provided proper notice with regard to the increased rating claims. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the Veteran's claims file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The United States Court of Appeals for Veterans Claims (Court) has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2016). In this case, VA examinations were conducted in February 2007, February 2014, and June 2017. These examinations also addressed functional limitations with regard to employability. The Board finds the examination reports, when considered together, to be thorough and complete and sufficient upon which to base a decision with regard to these claims. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). These examinations, along with the remaining evidence of record, contain sufficient findings to rate the Veteran's service-connected disabilities under the appropriate diagnostic criteria. The Board notes that the June 2017 VA examination complies with Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016) (holding that to be adequate a VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria for Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, 1 Vet. App. at 589. The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). 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 would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Cervical Spine Legal Criteria The Veteran's cervical spine disability has been evaluated under arthritis and the general rating formula for disease and injuries of the spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5242. The Veteran is currently receiving 10 percent disability from December 2006 and 20 percent from June 2017. The general rating formula (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 is rated as follows: Unfavorable ankylosis of the entire spine (100 percent); Unfavorable ankylosis of the entire cervical spine (40 percent); Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine (30 percent); Forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, 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 (20 percent); 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 percent or more of the height (10 percent); In this case, no objective neurologic abnormalities were found on examination; therefore, no additional rating is warranted under these criteria. Id. Intervertebral disc syndrome (IVDS) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In this case, no IVDS or incapacitating episodes were found on examination; therefore, no additional rating is warranted under these criteria. Id. Under DC 5010, traumatic, degenerative arthritis is rated under the DC 5003 criteria for degenerative arthritis. Under DC 5003, degenerative arthritis, 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. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of involvement of two or more major joints or two or more minor joint groups, warrants a 10 percent evaluation; with the addition of occasional incapacitating exacerbations, a 20 percent evaluation is warranted. 38 C.F.R. § 4.71a, DC 5003-5010. Under DeLuca v. Brown, 8 Vet. App. 202 (1995), VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the Diagnostic Codes. "Functional loss" may occur as a result of weakness or pain on motion. See DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, DCs 5260 and 5261. Facts The Veteran filed the increased rating claim for cervical spine in December 2006. During the VA general medical examination in February 2007, it was noted that the Veteran's neck and back were bilaterally symmetrical, without gross deformity or apparent congenital scoliosis. There was no evidence of any exaggerated thoracic kyphosis, lumbar lordosis, or cervical thoracic lumbar flattening. Deep tendon reflexes were equal bilaterally for the brachial radialis, triceps and biceps. There was no atrophy or hypertrophy on the right versus the left of any of the Veteran's extremities. There was no evidence of palpable spasm or tenderness. Range of motion measurements of the cervical spine showed forward flexion from 0 to 45 degrees with extension similarly from 0 to 45 degrees, considered to be within normal limits. Right and left lateral flexion was from 0 to 45 degrees with right and left lateral rotation from 0 to 80 degrees, considered to be within normal limits. The Veteran indicated that, at the present time, he experienced an aching type of pain in his neck in the area ranging from the 4th to the 7th cervical vertebrae. According to the Veteran he experienced such aching primarily in the mornings and late at night, or if he were to "turn wrong." The pertinent diagnosis noted was cervical spine condition without physical evidence of limitation of motion. Reportedly, radiographic studies revealed normal and natural minimal changes associated with aging. At the time of subsequent VA orthopedic examination in February 2014, which examination involved full review of the Veteran's claims file, the Veteran received diagnosis of degenerative disc and joint disease of the cervical spine, without radiculopathy. The Veteran indicated that he had in the past received physical therapy for his cervical spine. Additionally noted was that the Veteran currently experienced daily intermittent mild neck pain, which worsened somewhat with strenuous movements. According to the Veteran, he had received neither injections nor surgery for his neck. Moreover, he denied any problems with flare-ups. On physical examination, range of motion measurements showed forward flexion to 45 degrees or greater, with painful motion beginning at that same point. Extension was to 30 degrees with pain beginning at 30 degrees. Right and left lateral flexion was to 30 degrees, with pain beginning at 30 degrees. Right and left lateral rotation was to 60 degrees, with pain beginning at 60 degrees. Noted at the time of examination was that the Veteran experienced no additional limitation of motion of the cervical spine following repetitive use. However, following such repetitive use, the Veteran did demonstrate less movement than normal, as well as pain on movement. According to the February 2014 examiner, the Veteran exhibited localized tenderness and/or pain to palpation of the cervical spine. However, there was no evidence of any muscle spasm of the cervical spine resulting in an abnormal gait or abnormal spinal contour. Nor was there any evidence of guarding of the cervical spine, or of any decrease in muscle strength or sensation. There was no ankylosis, no neurological abnormalities relating to the cervical spine, and no IVDS of the cervical spine. The Veteran appeared for a VA examination again in June 2017. In regard to the cervical spine, the Veteran did not report flare-ups. Range of motion for forward flexion was 45 degrees active and non-weight bearing, passive was not applicable (as it cannot be performed or is medically inappropriate) and weight bearing was unsafe to test. Cervical extension was 35 degrees, right and left lateral flexion was 15 degrees, and right and left rotation was 25 degrees, for all active and non-weight bearing. Measurements under passive and weight bearing were unsafe to test. All ranges of motion exhibited pain. Regarding functional loss, the Veteran reported that he cannot extend his neck, rotate his neck to either side, put pressure on the right upper limb such as when leaning on the elbow, or flex or abduct the right upper limb such as when reaching for something, without neck pain. He cannot look behind him by turning his head. The Veteran reported tenderness to palpation of the right upper trapezius with pain radiating up the neck, consistent with a trigger point. There was not additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time. The examiner stated that pain, weakness, fatigability or incoordination does not significantly limit functional ability with repeated use over a period of time. There were no signs of radiculopathy or ankylosis. There were no neurological abnormalities due to the cervical spine. There was no IVDS or evidence of instability. The Veteran was limited in work as he is poorly suited for occupations that require frequent cervical extension (looking up), more than minimal cervical rotation to either side (such as driving), or frequent flexion or abduction with the right upper limb. Although the Veteran reported intermittent tingling in the right upper limb, the examiner explained that there is insufficient evidence to diagnose radiculopathy. The examiner reported that the Veteran was neurologically intact throughout both upper limbs on examination. No spasm was found. Analysis In this case, there is no evidence of a rating of 30 percent throughout the appeal period. At no point has the Veteran's cervical spine disability exhibited forward flexion of the cervical spine 15 degrees or less or ankylosis. The RO has awarded a 20 percent rating based on the June 2017 VA examination reflecting a combined range of motion of the cervical spine not greater than 170 degrees. The issue remains as to whether a rating of 20 percent is warranted prior to June 2017. Giving the Veteran the benefit of the doubt, the Board finds a 20 percent rating is warranted from the February 10, 2014 VA examination. The Board notes that the Court's JMR found the February 2014 examiner's explanation inadequate, as it is unclear how the Veteran could have functional loss due to pain and limited movement, but also have no change in functional status or ROM due to those same factors. The Board rectifies these statements by noting that the record supports that the Veteran has functional loss due to pain and limited movement, and while the examiner may not have observed limitation on functional status or ROM due to those same factors, the Board gives the benefit of the doubt to the Veteran in determining that such limitation does exist. Therefore, giving the Veteran the benefit of the doubt, the Board finds the worsened range of motion exhibited by the June 2017 VA examination to have been present at the time of the February 2014 VA examination, although not recorded. Prior to February 2014, there is no evidence supporting a rating of 20 percent. The February 2007 VA examination found normal range of motion in the cervical spine. There was no evidence of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, 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. The Board accepts that the Veteran reports painful motion in the cervical spine. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion or the functional equivalent of limitation of flexion required to warrant the next higher evaluation pendency of the appeal. As such, the Board finds that the currently assigned evaluation is appropriate for the Veteran's cervical spine disability. In sum, the Board finds the preponderance of the evidence is against the claim for a rating for low back disability in excess of 10 percent prior to February 10, 2014, the date of VA exam, and 20 percent thereafter. A partial grant of 10 to 20 percent is made for the time period between February 10, 2014 and June 2017. Left Knee Legal Criteria The Veteran's left knee has been evaluated under Diagnostic Codes 5258 and 5259. 38 C.F.R. § 4.71. For the pendency of the appeal the Veteran has received a 20 percent rating. Under DC 5257, other knee impairment of recurrent subluxation or lateral instability, is rated as: severe (30 percent), moderate (20 percent), and slight (10 percent). Under DC 5258, cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint is 20 percent. Under DC 5259, cartilage, semilunar, removal of, symptomatic is 10 percent. Under DC 5260, limitation of flexion of the knee is rated as: flexion limited to 15 degrees, (30 percent), flexion limited to 30 degrees, (20 percent), flexion limited to 45 degrees, (10 percent), flexion limited to 60 degrees, (0 percent). Under DC 5261, limitation of extension of the knee is rated as: extension limited to 45 degrees, (50 percent), extension limited to 30 degrees, (40 percent), extension limited to 20 degrees, (30 percent), extension limited to 15 degrees, (20 percent), extension limited to 10 degrees, (10 percent), extension limited to 5 degrees, (0 percent). By way of reference, normal range of motion for the knee is defined by VA as being from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2016). Additional ratings are available for ankylosis (DC 5256), tibia and fibula impairment (DC 5262), and genu recurvatum, traumatic (5263). There is no evidence that these rating are implicated regarding the Veteran's left knee disability on appeal. 38 C.F.R. § 4.71a. Under DC 5003, degenerative arthritis, 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. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of involvement of two or more major joints or two or more minor joint groups, warrants a 10 percent evaluation; with the addition of occasional incapacitating exacerbations, a 20 percent evaluation is warranted. 38 C.F.R. § 4.71a, DC 5003. Under DeLuca v. Brown, 8 Vet. App. 202 (1995), VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the Diagnostic Codes. "Functional loss" may occur as a result of weakness or pain on motion. See DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, DCs 5260 and 5261. Facts At the time of the aforementioned VA general medical examination in February 2007, the Veteran complained of left knee discomfort which had gradual onset over a period of months. The Veteran reported that his left knee discomfort began about year and half ago with regularity. The Veteran indicated that, every day, he experienced some discomfort in the superolateral aspect of his left knee, consisting of an aching, throbbing type of discomfort, which varied from 6 to 8 on scale of 10 by the end of the day. Reportedly, according to the Veteran, his knee clicked more than it locked in place. Current treatment consisted of anti-inflammatory medication and physical therapy, though with no injections. On physical examination, range of motion measurements showed flexion from 0 to 140 degrees for both of the Veteran's knees. There was some tenderness to palpation of the superolateral aspect of the left knee, though with no crepitation on repeated passive range of motion. The anterior and posterior drawer tests were negative bilaterally, and there was no evidence of any gross abnormal valgus or varus deformity. On VA orthopedic examination in February 2014, which examination involved full review of the Veteran's claims folder, the Veteran received diagnosis of left knee medial meniscus tear with associated degenerative joint disease. When questioned, the Veteran complained of daily intermittent leg pain which would worsen with squatting going up and down stairs, and prolonged standing and sitting. Range of motion measurements showed flexion to 100 degrees, with objective evidence of pain at 90 degrees, and extension to 0 degrees. Following repetitive use testing, the Veteran experienced no additional limitation in range of motion of his left knee. Functional loss was noted as less movement than normal and painful movement. While there was some tenderness and pain to palpation of the Veteran's left knee, muscle strength was within normal limits as were all joint stability tests. Significantly, at the time of examination, there was no evidence or history of recurrent patellar subluxation and/or dislocation. However, there was evidence of frequent episodes of joint "locking" and pain due to meniscus tear. Noted at the time of examination was that the Veteran found it necessary to rest and stretch with prolonged standing, walking, and sitting. The examiner noted no change in functional status or range of motion is anticipated due to flares or pain or repetitive use over time. The Veteran appeared for a VA examination in June 2017. Left knee osteoarthritis and meniscal tear were noted. The Veteran complains of left knee pain, constant with a dull aching character and also occasional locking. It is worse with standing or walking for longer than 10 minutes, twisting, and cold weather. The Veteran did not report flare-ups. Regarding functional loss, he cannot stand or walk for longer than 10 minutes or twist without left knee pain. Right knee flexion was 0 to 125 degrees, and extension was 125 to 0 degrees. Left knee flexion was 0 to 120 degrees, and extension was 120 to 0 degrees; flexion exhibited pain. There was no evidence of pain with weight bearing. There is no evidence of crepitus, tenderness or pain on palpation on the right side. The left knee was tender to palpation of the superior patella, especially superolaterally; there was no crepitus. The Veteran was able to perform repetitive testing and there was no additional functional loss. The examiner opined that in regard to the left knee, pain significantly limits functional ability with repeated use over a period of time, as the Veteran reports pain with standing or walking for longer than 10 minutes. Joint stability testing revealed no abnormality. There is no evidence for ligamentous instability either on MRI or clinical testing. Effusion was noted as the Veteran reported walking longer than 10 minutes or climbing a lot of stairs can make the left knee swell. The examiner opined that the Veteran is poorly suited for occupations that require standing or walking for more than 10 minutes per hour or frequent twisting. The examiner stated that the osteoarthritis noted in the left knee was exhibited prior to the 2007 exam and represents symptoms for which the Veteran is already service-connected. The examiner noted evidence of pain on passive range of motion testing, evidence of pain when the joint is used in non-weight bearing, and that the opposing joint is undamaged. Analysis The Board does not find a rating in excess of 20 percent warranted for the left knee disability. At no time during the appeals period has the left knee disability manifested with flexion limited to 15 degrees, (for 30 percent rating), or extension limited to 45 degrees, (for 50 percent rating), extension limited to 30 degrees, (for 40 percent rating), or extension limited to 20 degrees, (for 30 percent rating). 38 C.F.R. § 4.71a, Diagnostic Codes 5260-5261. VA's General Counsel has held that, where a claimant has arthritis (resulting in limited or painful motion), in addition to instability of the knee, separate ratings may be assigned under Diagnostic Codes 5003 and 5257, cautioning that any such separate ratings must be based on additional disabling symptomatology. See VAOPGCPREC 23-97 (1997); VAOPGCPREC 9-98, (1998). However, in the case at hand, there is no persuasive evidence of both arthritis and instability due solely to the Veteran's service connected residuals of medial meniscus tear of the left knee. In fact, the overwhelming weight of the evidence is to the effect that the Veteran's left knee has been and remains stable. Moreover while VA's General Counsel has held that separate ratings under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension) may be assigned for disability of the same joint [See VAOPGCPREC 9-2004 ( 69 Fed. Reg. 59988 (2004)], the Veteran's limitation of flexion and extension are not such as to warrant the assignment of separate ratings. The Board accepts that the Veteran reports painful motion in left knee with limitations on standing and walking. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion or the functional equivalent of limitation of flexion required to warrant the next higher evaluation pendency of the appeal. As such, the Board finds that the currently assigned evaluation is appropriate for the Veteran's left knee disability. As noted by the Court's January 2017 JMR, the February 2014 VA examination fails to explain how the Veteran could have functional loss due to pain and limited movement, but also have no change in functional status or ROM due to those same factors. The Board acknowledges that the Veteran's left knee disability manifests with pain and limited motion which results in the current disability rating, however, finds no basis to award a higher rating based on functional impact of these factors. On the June 2017 VA examination, no additional rating is warranted due to painful and limited motion. The June 2017 examiner opined that in regard to the left knee, pain significantly limits functional ability with repeated use over a period of time, as the Veteran reports pain with standing or walking for longer than 10 minutes. Even by assuming this limitation existed at the time of the February 2014 VA exam, no additional rating is warranted over 20 percent, as explained above. In sum, the Board finds the preponderance of the evidence is against the claim for a rating for left knee disability in excess of 20 percent. Left Shoulder Legal Criteria The Veteran has stated he is ambidextrous. The Veteran's left shoulder disability is rated at 10 percent from December 2006 under Diagnostic Codes 5099-5024 and 20 percent from June 2017 under Diagnostic Codes 5003-5201. Under Diagnostic Code 5201 for limitation of arm motion, limitation of the arm to shoulder level warrants a 20 percent rating. The criterion for a 30 percent rating, for the major extremity is limitation of the arm to midway between the side and shoulder level, that is, 45 degrees. For limitation of motion to 25 degrees from the side, the major extremity is rated at 40 percent. 38 C.F.R. § 4.71a. Under Diagnostic Code 5202, impairment of the humerus, the criteria for a 20 percent rating, the lowest rating, are malunion of moderate deformity, or recurrent dislocation at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level. The criteria for a 30 percent are malunion of marked deformity or recurrent dislocation at the scapulohumeral joint with frequent episodes and guarding of all arm movements. Higher ratings are awarded for findings of fibrous union, nonunion (false flail joint), and loss of the head of the humerus (flail joint). There is no evidence of such here. Under Diagnostic Code 5203, impairment of the clavicle, 20 percent is warranted for dislocation, 20 percent is warranted for nonunion with loose movement, 10 percent without loose movement. Malunion of the clavicle is 10 percent. Besides the criteria stated, a higher rating is available for scapulohumeral articulation, ankylosis of, under Diagnostic Code 5200. There is no indication of ankylosis in this case. Normal range of motion in the shoulder is from 0 to 180 degrees of flexion, 0 to 180 degrees of abduction, and 0 to 90 degrees of external and internal rotation. Flexion or abduction limited to 90 degrees equates to shoulder level. 38 C.F.R. § 4.71, Plate I. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Diagnostic Code 5024 is for tenosynovitis, which is rated on the basis of limitation of motion as degenerative arthritis. Under DC 5003, degenerative arthritis, 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. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of involvement of two or more major joints or two or more minor joint groups, warrants a 10 percent evaluation; with the addition of occasional incapacitating exacerbations, a 20 percent evaluation is warranted. 38 C.F.R. § 4.71a, DC 5003. Facts At the time of the VA general medical examination in February 2007, the Veteran indicated that he experienced sharp pain approximately twice a week in his left shoulder, the severity of which was 7 on scale of 10. Significantly, the Veteran denied any problems with locking or instability. According to the Veteran, upward movement or reaching for something quickly brought on his discomfort. However, as the Veteran described what he could not do, he did in fact upwardly move and reach for something quickly. On physical examination, the Veteran's left shoulder displayed forward flexion from 0 to 180 degrees, considered to be within normal limits. Abduction of the left shoulder was once again within normal limits, showing range from 0 to 180 degrees. External rotation of the left shoulder was within normal limits, as was internal rotation, showing range of motion from 0 to 90 degrees. The pertinent diagnosis noted was left shoulder refractory bicipital tendonitis, with no physical evidence of restriction of range of motion, and no radiographic evidence of calcium deposits. At the time of the VA orthopedic examination in February 2014, the Veteran received diagnosis of chronic left shoulder bicipital tendinitis with associated degenerative joint disease. The Veteran reported daily intermittent mild left shoulder pain, worsened with overhead movements. The Veteran had to avoid lifting with his left arm. The Veteran did not report flare-ups. Range of motion measurements showed flexion to 120 degrees, with pain beginning at 90 degrees. Abduction was to 100 degrees, once again, with pain beginning at 90 degrees. Significantly, at the time of examination, the Veteran displayed no additional limitation in range of motion of his shoulder and arm following repetitive use testing. However, there was pain on movement, and less movement than normal in the Veteran's left shoulder, as recorded by the examiner. There was localized tenderness or pain on palpation of the left shoulder. According to the examiner, the Veteran displayed no guarding in either shoulder. Muscle strength was within normal limits, and there was no evidence of any ankylosis or recurrent dislocation (subluxation) of the glenohumeral joint. Following three repetitions of active and passive range of motion both internal and external rotation of the left shoulder were painful beginning at 80 degrees, while range of motion was limited to 80 degrees. The examiner stated that no change in functional status or range of motion is anticipated to flares, pain, or repetitive use over time. The Veteran appeared for a VA examination in June 2017. Bicipital tendonitis, glenohumeral joint osteoarthritis, and acromioclavicular joint osteoarthritis were diagnosed as to the left shoulder. Functional loss was noted as the Veteran cannot flex or abduct the left shoulder with more than 10 pounds, or flex or abduct the left shoulder past 90 degrees, even without any weight, without pain. He did not report flare-ups. Right shoulder flexion was 100 degrees, abduction was 90 degrees, and external and internal rotation was 90 degrees. He cannot work overhead with the limb. Flexion and abduction exhibited pain. There was no evidence of pain on weight bearing. Left shoulder flexion was 95 degrees, abduction was 125 degrees, and external and internal rotation was 90 degrees. He cannot work overhead with the limb. Pain was noted on exam and causes functional loss. Flexion, abduction, and external rotation exhibited pain. There was no evidence of pain on weight bearing. The left shoulder was tender to palpation anteriorly more than posteriorly. For both shoulders, there was no additional functional loss or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time. In the left shoulder, a rotator cuff condition was suspected after diagnostic testing. The examiner noted suspected shoulder instability, dislocation or labral pathology and mechanical symptoms (clicking, catching, etc.). The examiner also noted suspected clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition affecting range of motion. AC Joint Arthritis was noted impacting the range of motion of the left shoulder. Cross-body adduction test was positive as to the left shoulder. The examiner noted that the Veteran is poorly suited for occupations that require flexing or abducting the left shoulder with more than 10 pounds or flexing or abducting the left shoulder past 90 degrees even without any weight. There was no evidence of joint instability. The examiner stated that degenerative changes were already present on imaging obtained at the prior VA exams and represent the same signs and symptoms for which the Veteran is already service connected. The examiner noted evidence of pain on passive range of motion testing, evidence of pain when the joint is used in non-weight bearing, and that the opposing joint is undamaged. Analysis In this case, there is no evidence of a rating of 30 percent throughout the appeal period. For Diagnostic Code 5201, the criterion for a 30 percent rating, for the major extremity is limitation of the arm to midway between the side and shoulder level, that is, 45 degrees, or worse, is not met. For Diagnostic Code 5202, the criteria for a 30 percent rating are malunion of marked deformity or recurrent dislocation at the scapulohumeral joint with frequent episodes and guarding of all arm movements are not met. The RO has awarded a 20 percent rating based on the June 2017 VA examination based on painful motion of the arm at the shoulder under Diagnostic Code 5201. The issue remains as to whether a rating of 20 percent is warranted prior to June 2017. Giving the Veteran the benefit of the doubt, the Board finds a 20 percent rating is warranted from the February 10, 2014 VA examination. The Board notes that the Court's JMR found the February 2014 examiner's explanation inadequate, as it is unclear how the Veteran could have functional loss due to pain and limited movement, but also have no change in functional status or ROM due to those same factors. The Board rectifies these statements by noting that the record supports that the Veteran has functional loss due to pain and limited movement, and while the examiner may not have observed limitation on functional status or ROM due to those same factors, the Board gives the benefit of the doubt to the Veteran in determining that such limitation does exist. Therefore, giving the Veteran the benefit of the doubt, the Board finds the worsened range of motion exhibited by the June 2017 VA examination to have been present at the time of the February 10, 2014 VA examination, although not recorded. Prior to February 10, 2014, there is no evidence supporting a rating of 20 percent. The February 2007 VA examination reflected left shoulder range of motion within normal limits. 10 percent rating is warranted based on painful motion of degenerative arthritis. 38 C.F.R. § 4.71a, DC 5024-5003. Under Diagnostic Code 5201 for limitation of arm motion, there is no indication of limitation of the arm to shoulder level to warrant a 20 percent rating. Under Diagnostic Code 5202, there is no indication of impairment of the humerus, with malunion of moderate deformity, or recurrent dislocation at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level, for 20 percent rating. Under Diagnostic Code 5203, there is no indication of impairment of the clavicle, with dislocation, or nonunion with loose movement for 20 percent rating. The Board accepts that the Veteran reports painful motion in the left shoulder. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion or the functional equivalent of limitation of flexion required to warrant the next higher evaluation pendency of the appeal. As such, the Board finds that the currently assigned evaluation is appropriate for the Veteran's left shoulder disability. In sum, the Board finds the preponderance of the evidence is against the claim for a rating for left shoulder disability in excess of 10 percent prior to February 10, 2014, the date of VA exam, and 20 percent thereafter. A partial grant of 10 to 20 percent is made for the time period between February 10, 2014 and June 2017. Johnson Analysis The Court's January 2017 JMR in part ordered that the Board develop and consider whether the Veteran may be entitled to referral for an extra-schedular rating under 38 C.F.R. § 3.321(b) based upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities are not adequately captured by the schedular ratings for the service-connected disabilities. See Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014). Since that decision, VA has adopted a rule that clarifies that an extraschedular evaluation may not be based on the combined effect of multiple service-connected disabilities. The rule is effective January 8, 2018 and applies to all claims received or pending as of that date. 38 C.F.R. § 3.321(b) (Lexis Advance through the February 26, 2018 issue of the Federal Register). Therefore, the Board finds this issue is rendered moot by the change in VA law. ORDER Entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis of the cervical spine, prior to February 10, 2014, is denied. Entitlement to an evaluation in excess of 10 percent, to 20 percent but no higher, for degenerative arthritis of the cervical spine, from February 10, 2014, is granted. Entitlement to an initial evaluation in excess of 20 percent for left knee disability is denied. Entitlement to an initial evaluation in excess of 10 percent for left shoulder disability, prior to February 10, 2014, is denied. Entitlement to an evaluation in excess of 10 percent, to 20 percent but no higher, for left shoulder disability, from February 10, 2014, is granted. ____________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs