Citation Nr: 1823980 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 12-21 668 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a left knee chondromalacia. 2. Entitlement to a rating in excess of 20 percent for chronic right shoulder sprain. 3. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the cervical spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from May 1999 to March 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2011 and October 2016 rating decisions issued by the RO. The Board remanded the claims for increased ratings for the left knee and right shoulder disabilities in March 2017 for additional development. The development has been completed and the case has been returned to the Board for appellate consideration. VA has provided all appropriate notification and assistance to the Veteran in the development of the claims. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for an appropriate medical inquiry. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The issue of entitlement to an increased rating for the degenerative joint disease of the cervical spine is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran had full extension of the left knee and flexion at most limited to 100 degrees. 2. Flexion of the Veteran's right shoulder is limited to at most 110 degrees; abduction of the right shoulder is limited to at most 105 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the service-connected left knee chondromalacia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code 5014 (2017). 2. The criteria for a rating in excess of 20 percent for the service-connected chronic right shoulder sprain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Left Knee The rating for the Veteran's left knee disability has been assigned by analogy pursuant to diagnostic code (DC) 5099-5014. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; unlisted disabilities requiring rating by analogy will be coded first the numbers of the most closely related body part and "99". Under Diagnostic Code 5014, osteomalacia is rated on limitation of motion of the affected part as degenerative arthritis. Under DC 5260, a 10 percent rating is assigned for limitation of flexion to 45 degrees. A 20 percent rating contemplates limitation of flexion to 30 degrees. A rating of 30 percent requires limitation of flexion to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a rating of 10 percent requires limitation of extension to 10 degrees. A rating of 20 percent requires limitation of extension to 15 degrees. A rating of 30 percent requires limitation of extension to 20 degrees. A rating of 40 percent requires limitation of extension to 30 degrees, and a rating of 50 percent requires limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Separate evaluations may also be assigned for subluxation (See 38 C.F.R. § 4.71a, DC 5257). 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. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. The January 2010 Report of VA examination reflects the Veteran's complaint of progressively worsening left knee disability. He complained of left knee giving way, pain, stiffness and weakness. He was able to stand for longer than one hour but less than three hours. He had no limitation in walking. Objectively, there was no objective evidence of pain with active motion of the left knee. He had full range of motion of the left knee. There was no objective evidence of pain following repetitive motion or additional limitation in range of motion with repetitive use testing. X-ray findings showed no acute bony injury. The August 2011 Report of VA examination reflects the Veteran's complaint of intermittent left knee discomfort with occasional swelling. He had no reported flare-ups that impacted the function of the knee and/or lower leg. Objectively, range of motion findings of the left knee were as follows: flexion to 100 degrees, with objective evidence of painful motion at 95 degrees and full extension of the knee with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing without additional limitation in range of motion of the left knee. The Veteran had no functional loss for the left lower extremity. The Veteran did not exhibit tenderness or pain to palpation for joint line or soft tissues of the left knee. He had slightly diminished muscle strength testing in extension of the left knee; otherwise, muscle strength testing was normal. Knee joint stability tests were all normal and there was no evidence or history of recurrent patellar subluxation/ dislocation. The Veteran had a left knee meniscal tear, i.e., a semilunar cartilage condition and had undergone meniscectomy. Residuals of his left knee meniscectomy included occasional soreness and swelling with popping, depending on work load and maneuvers. X-ray findings showed no signs of degenerative or traumatic arthritis or patellar subluxation. The examiner indicated that the Veteran's left knee disability impacted his ability to work given that he often experienced soreness and stiffness in the left knee when he tried to maneuver around the vehicles he worked on. On rare occasions, he experienced left knee swelling. The March 2017 Report of VA examination reflects the Veteran's complaint of left knee pain and stiffness. He described the pain as constant and aching but reported he experienced throbbing pain and effusion with flare-ups and overuse. He reported that he experienced difficulty walking or standing for long periods of time without rest. Objectively, range of motion findings of the right shoulder were as follows: flexion from 0 to 120 degrees and full extension of the left knee with pain in all ranges of motion. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of pain with weight bearing but no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing without additional limitation in range of motion of the left knee. The Veteran was not examined immediately after repetitive use over time or during a flare-up; therefore, the examiner was unable to address any resultant additional limitation in range of motion without resorting to speculation. Noted additional contributing factors of left knee disability included swelling, disturbance of locomotion and interference with standing. Muscle strength testing was normal and there was no evidence of muscle atrophy. There was no evidence of left knee ankylosis. Knee joint stability tests were all normal and there was no evidence or history of recurrent subluxation or lateral instability. There was a history of moderate recurrent effusion of the left knee with flare-ups and overuse. Residual symptoms of left knee meniscectomy included chronic pain and loss of range of motion. The examiner indicated that the Veteran's left knee disability impacted his ability to work in that the Veteran had difficulty walking or standing for long periods of time without rest and had difficulty navigating stairs. The examiner commented that there was no objective evidence of left knee pain on non-weight bearing. Passive range of motion findings of the left knee were as follows: flexion from 0 to 130 degrees and full extension with pain in all ranges of motion. There is no evidence of flexion of the left knee limited to 30 degrees or extension of the left knee limited to 15 degrees. Rather, the evidence shows that the Veteran had full extension of the left knee at all times and flexion of the left knee at most limited to 100 degrees. Thus a rating in excess of 10 percent is not warranted. Ankylosis, frequent episodes of locking pain and effusion into the joint or tibia or fibular impairment is not demonstrated; therefore, a rating in excess of 10 percent under Diagnostic Codes 5256, 5258 and 5262 is not warranted either. In addition, there is no evidence of joint instability or recurrent subluxation or lateral instability; therefore, a separate rating or a rating in excess of 10 percent under Diagnostic Code 5257 is not warranted. The August 2011 report of VA examination reflects that the Veteran had no reported flare-ups that impacted the function of the knee and/or lower leg. In addition, the March 2017 report of VA examination reflects that passive range of motion findings were as follows: flexion from 0 to 130 degrees and full extension with pain in all ranges of motion. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The preponderance of the evidence is against a rating in excess of 10 percent and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). Right Shoulder The rating for the Veteran's right shoulder disability has been assigned pursuant to diagnostic code (DC) 5201. Under DC 5201, a 20 percent rating contemplates limitation of motion of the arm at shoulder level (for both major and minor extremity) and midway between side and shoulder level (minor extremity). A rating of 30 percent rating requires limitation of motion of the arm midway between side and shoulder level (major extremity) and to 25 degrees from side (minor extremity). A 40 percent rating is assigned for limitation of motion of the arm to 25 degrees from the side (major extremity). 38 C.F.R. § 4.71a, DC 5201. 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. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. The January 2010 Report of VA examination reflects the Veteran's complaint of progressively worsening right shoulder disability. He complained of right shoulder giving way, instability, pain, stiffness, weakness and decreased speed of joint motion. He reported that he experienced a sharp catch or pop when he moved his arm above shoulder level. He experienced right shoulder effusions with repeated overhead work. Objectively, the right shoulder showed no signs of recurrent dislocations or inflammatory arthritis. Range of motion findings of the right shoulder were as follows: flexion from 0 to 180 degrees; abduction from 0 to 135 degrees; internal rotation from 0 to 80 degrees; and, external rotation from 0 to 90 degrees. There was no objective evidence of pain following repetitive motion or additional limitation in range of motion with repetitive use testing. X-ray findings showed no acute bony injury or change since July 2006. The August 2011 Report of VA examination reflects the Veteran's complaint that since he underwent shoulder surgery in 2004, he has gradually developed a popping, catch with pain from the superior shoulder down to the elbow. He experienced some tingling in the axilla with rare tingling sensation down to the left hand, specifically the 3rd, 4th and little finger. He was right hand dominant. Objectively, the right shoulder showed no signs of recurrent dislocations or inflammatory arthritis. Range of motion findings of the right shoulder were as follows: flexion from 0 to 120 degrees, with objective evidence of painful motion at 90 degrees and abduction from 0 to 130 degrees, with objective evidence of painful motion at 95 degrees. The Veteran was able to perform repetitive-use testing without additional limitation in range of motion of the shoulder. Less movement than normal, weakened movement and pain on movement contributed to the Veteran's functional loss/functional impairment of the right shoulder. The Veteran did not experience localized tenderness or pain on palpation of the joints/soft tissue/biceps tendon of the right shoulder but he did exhibit guarding of the right shoulder. Muscle strength testing was slightly diminished but there was no evidence of right shoulder ankylosis. Hawkins Impingement test, Empty-can test, external rotation/Infraspinatus strength test, Lift-off subscapularis test and Crank Apprehension and Relocation test were all positive in the right shoulder. The right shoulder showed no signs of recurrent dislocations and the Veteran had no impairment of the clavicle or scapula. X-ray findings showed no signs of degenerative or traumatic arthritis. The examiner indicated that the Veteran's right shoulder disability impacted his ability to work given that it reduced his ability to lift, pull, push or twist and caused pain with performance of those maneuvers. The December 2014 Report of VA examination reflects the Veteran's complaint that his right shoulder popped and would catch on a regular basis. When he rotated his right arm, an audible "pop" could be heard. He reported that his right shoulder pain included a shooting pain and numbness into the last three fingers of his right hand. He stated that he was unable to perform pull ups, pushups or bench press because of his right shoulder disability. He also reported that he had problems performing overhead work or keeping his right arm elevated for over 30 seconds. He was right hand dominant and had no reported functional loss or function impairment of the right shoulder disability. Objectively, range of motion findings of the right shoulder were as follows: flexion from 0 to 120 degrees; abduction from 0 to 130 degrees; internal rotation from 0 to 90 degrees; and, external rotation from 0 to 90 degrees. There was evidence of pain with weight bearing and the Veteran demonstrated moderate pain on palpation of the anterior and posterior aspects of the acromioclavicular joint. The Veteran was able to perform repetitive-use testing without additional limitation in range of motion of the shoulder. Pain, fatigue and weakness significantly limited functional ability with repeated use over a period of time resulting in the following range of motion findings: flexion from 0 to 90 degrees; abduction from 0 to 90 degrees; internal rotation from 0 to 90 degrees; and, external rotation from 0 to 90 degrees. The Veteran reported that he experienced daily, mild to moderate flare-ups of pain that lasted hours. Muscle strength testing was slightly diminished but there was no evidence of muscle atrophy. There was no evidence of right shoulder ankylosis. Hawkins Impingement test, Empty-can test and external rotation/Infraspinatus strength test were all positive in the right shoulder. The right shoulder showed no signs of recurrent dislocations and the Veteran had no impairment of the clavicle or scapula. The Veteran had no impairment of the humerus. X-ray findings showed no signs of degenerative or traumatic arthritis. The examiner indicated that the Veteran's right shoulder disability impacted his ability to work in that the Veteran was unable to perform overhead or repetitive movements with his dominant right hand due to shoulder pain. The March 2017 Report of VA examination reflects the Veteran's complaint of chronic right shoulder pain and stiffness. He described the pain as constant and aching but reported he experienced sharp, stabbing pain and increased stiffness with flare-ups and overuse. He reported that he experienced frequent popping of the right shoulder. He was right hand dominant. Objectively, range of motion findings of the right shoulder were as follows: flexion from 0 to 110 degrees; abduction from 0 to 105 degrees; internal rotation from 0 to 90 degrees; and, external rotation from 0 to 90 degrees with pain in all ranges of motion. The Veteran was able to perform repetitive-use testing without additional limitation in range of motion of the shoulder. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of pain with weight bearing but no objective evidence of crepitus. The Veteran was not examined immediately after repetitive use over time or during a flare-up; therefore, the examiner was unable to address any resultant additional limitation in range of motion without resorting to speculation. Muscle strength testing was normal and there was no evidence of muscle atrophy. There was no evidence of right shoulder ankylosis. A history of infrequent episodes of recurrent dislocation of the glenohumeral joint of the right shoulder was documented and Crank apprehension and relocation test was positive on the right shoulder. The Veteran had no impairment of the clavicle or scapula or impairment of the humerus. X-ray findings showed no signs of degenerative or traumatic arthritis. The examiner indicated that the Veteran's right shoulder disability impacted his ability to work in that the Veteran had difficulty with overhead use of the right arm and heavy lifting involving the right shoulder. Additionally, the Veteran had difficulty with pushing or pulling activities and difficulty driving for long periods of time. The examiner commented that there was no objective evidence of right shoulder pain on non-weight bearing. Passive range of motion findings of the right shoulder were as follows: flexion from 0 to 160 degrees; abduction from 0 to 140 degrees; internal rotation from 0 to 90 degrees; and, external rotation from 0 to 90 degrees with pain in all ranges of motion. There is no evidence of limitation of motion of the right arm midway between side and shoulder level (approximately 45 degrees). Rather, the evidence at most shows that the Veteran's abduction of the right shoulder was limited to 105 degrees. Thus a rating in excess of 20 percent is not warranted. Ankylosis or impairment of the humerus is not demonstrated; therefore, a rating in excess of 20 percent under Diagnostic Codes 5200 and 5202 is not warranted either. The December 2014 reports of VA examination reflects that pain, fatigue and weakness significantly limited functional ability with repeated use over a period of time resulting in the following range of motion findings: flexion from 0 to 90 degrees; abduction from 0 to 90 degrees; internal rotation from 0 to 90 degrees; and, external rotation from 0 to 90 degrees. In addition, the March 2017 report of VA examination reflects that passive range of motion findings were as follows: flexion from 0 to 160 degrees; abduction from 0 to 140 degrees; internal rotation from 0 to 90 degrees; and, external rotation from 0 to 90 degrees with pain in all ranges of motion. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The preponderance of the evidence is against a rating in excess of 20 percent and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER A rating in excess of 10 percent for a left knee chondromalacia is denied. A rating in excess of 20 percent for chronic right shoulder sprain is denied. REMAND The Veteran through his representative has requested an additional VA examination as to the claim for a rating in excess of 10 percent for degenerative joint disease of the cervical spine. The Board has examined the request and finds it has merit. The claim as to the cervical spine rating is REMANDED for the following action: 1. Remand is required to afford the Veteran VA examination of the cervical spine that includes the results of the range of motion testing described in the final sentence of 38 C.F.R.§ 4.59. The final sentence of 38 C.F.R. § 4.59 provides that "the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158, 168 (2016). 2. Schedule the Veteran for a VA spine examination to assist in determining the nature and severity of the lumbar spine disability. The entire claims file should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation, including any pertinent diagnostic imaging and radiography, should be accomplished and all clinical findings should be reported in detail. Specifically, the examiner is requested to test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not feasible, he or she should provide a detailed explanation for why testing could not be accomplished. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific limitation(s) of motion, if any, accompanied by pain. To the extent possible, the examiner should assess the degree of severity of any pain. Tests of joint movement against varying resistance should be performed. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If this testing is not feasible, the examiner should provide a detailed explanation for why such could not be accomplished. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this testing is not feasible, the examiner should provide a detailed explanation for why such could not be accomplished. As indicated above, the examiner should review the record in conjunction with commenting on the severity of the Veteran's cervical spine disability; however, his or her attention is drawn to the following: *VA MRI report of October 2015 documents that disc desiccation without significant disc bulge/herniation or neuroforaminal or spinal stenosis was observed at C2-3, C3-4, C4-5, C7-T1. The cervical cord was well maintained. No intrinsic mass lesions of the cord or canal or paraspinous mass lesions were observed. The body heights, alignment and signal were well maintained. *VA examination report of October 2016 that reflects the Veteran's complaint of increasing cervical spine pain with radiation into his right shoulder. He reported that prolonged daily activity caused increased pain. At work, he had been placed on desk duty when his pain was too great for him to perform physical duties. Range of motion measurements were flexion to 45 degrees with pain, extension to 30 degrees with pain, right lateral flexion to 35 degrees with pain, left lateral flexion to 45 degrees, right lateral rotation to 40 degrees with pain and left lateral rotation to 60 degrees. There was no additional limitation with repetition. He experienced muscle spasm of the cervical spine that did not result in abnormal gait or abnormal spinal contour and his diagnosed intervertebral disc syndrome (IVDS) did not require physician prescribed bed rest. *VA MRI report printed on February 2018 documents mildly advancing degenerative changes compared to the prior examination. A cystic structure associated with the existing right C8 nerve root at C7-T1 was stable in size compared to prior examination from 2015 however post gadolinium imaging was recommended for further assessment. *March 2018 statement from the Veteran reports that he has experienced advancing degenerative changes since a 2015 MRI evaluation. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. 3. After completing all indicated development, readjudicate the claim for a rating in excess of 10 percent for degenerative joint disease of the cervical spine. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs