Citation Nr: 19123744 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 17-04 972A DATE: March 29, 2019 ORDER Entitlement to an initial evaluation in excess of 40 percent from January 1, 2015, excluding a period of temporary total evaluation from July 1, 2016 to August 31, 2016, for right lower extremity chronic regional pain syndrome and reflex sympathetic dystrophy (below the knee) with right knee tear of the junction of the anterior horn and medial meniscus is denied. Entitlement to an initial evaluation in excess of 30 percent from January 1, 2015, excluding a period of temporary total evaluation from July 1, 2016 to August 31, 2016, for right lower extremity chronic regional pain syndrome and reflex sympathetic dystrophy (above the knee) with hip strain and thigh atrophy is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s below knee disability more closely approximates moderately severe incomplete paralysis. 2. For the entire appeal period, the Veteran’s above knee disability more closely approximates severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for the Veteran’s right lower extremity chronic regional pain syndrome and reflex sympathetic dystrophy (below the knee) with right knee tear of the junction of the anterior horn and medial meniscus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code (DC) 8520 (2018). 2. The criteria for an initial rating in excess of 30 percent for the Veteran’s right lower extremity chronic regional pain syndrome and reflex sympathetic dystrophy (above the knee) with hip strain and thigh atrophy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, DC 8526 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2012 to April 2013. As an initial matter, the Board notes that additional evidence has been associated with the file since the December 2018 SSOC. Although the Veteran did not specifically waive initial review of this newly-submitted evidence by the Agency of Original Jurisdiction (AOJ), such a waiver is presumed, as the Veteran submitted her substantive appeal after February 2, 2013. See 38 U.S.C. § 7105(e)(1) (West 2012). As such, the Board may properly consider the evidence at this time. See 38 C.F.R. §§ 20.800, 20.1304(c) (2018). Increased Rating 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. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Entitlement to an evaluation in excess of 40 percent disabling from January 1, 2015, excluding a period of temporary total evaluation from July 1, 2016 to August 31, 2016, for right lower extremity chronic regional pain syndrome and reflex sympathetic dystrophy (below the knee) with right knee tear of the junction of the anterior horn and medial meniscus and entitlement to an evaluation in excess of 30 percent disabling for the same appeal period for right lower extremity chronic regional pain syndrome and reflex sympathetic dystrophy (above the knee) with hip strain and thigh atrophy. The Veteran contends that her right below/above the knee disabilities warrant higher evaluations. The Veteran’s right below knee disability is currently evaluated under DC 8520, which provides for rating paralysis of the sciatic nerve, manifested by complete paralysis ratable at 80 percent; severe incomplete paralysis with marked muscular atrophy ratable at 60 percent; moderately severe incomplete paralysis ratable at 40 percent; moderate incomplete paralysis ratable at 20 percent; and mild incomplete paralysis ratable at 10 percent. Further, the Veteran’s above knee disability is currently evaluated under DC 8526. Disability ratings of 10, 20, and 30 percent are warranted, respectively, for mild, moderate, severe incomplete paralysis of the femoral nerve. A 40 percent rating is warranted for complete paralysis of the femoral nerve. 38 C.F.R. § 4.124a, DC 8526 (2018). In January 2015, the Veteran attended a VA Knee Conditions Disability Benefits Questionnaire (DBQ) examination. The examiner diagnosed tear of the junction of the anterior horn and body of the medial meniscus; right, muscle atrophy right leg with flexion deformity, and complex regional pain syndrome with reflex sympathetic dystrophy right lower extremity. Upon examination, there was evidence of ankle and knee weakness along with right knee limited and painful motion. Further, the Veteran had no strength in right knee flexion at 0 out of 5, 4 out of 5 strength in ankle plantar flexion, 4 out of 5 strength in ankle dorsiflexion, and 4 out of 5 strength in great toe extension. She also had painful and limited range of motion of the right knee. Flexion was limited to 80 out of 140 degrees, and extension was limited to 10 degrees. There was no evidence of knee instability or subluxation. Meniscal dislocation was also present along with muscle atrophy in the right leg. Regarding functional impact, the examiner noted that the Veteran could not walk without an assistive device, can sit and stand for a maximum of 15 minutes at one time, and can stand for 1 hour and sit for 2 during an 8-hour day. In January 2015, the Veteran attended a VA Hip and Thigh Conditions DBQ examination. The examiner diagnosed right hip strain, right thigh muscle atrophy, and chronic regional pain syndrome with reflex sympathetic dystrophy right lower extremity. Upon examination, hip flexion limited to 3 out of 5 strength, hip abduction limited to 4 out of 5 strength, hip extension limited to 4 out of 5 strength, and knee extension limited to 0 out of 5 strength. For range of motion, right hip flexion was limited to 90 out of 125 degrees, extension as limited to 20 out of 30 degrees, adduction was lost beyond 10 degrees, crossing legs was not possible, rotation beyond 15 degrees of toe out was not possible, external rotation was limited to 40 out of 60 degrees, internal rotation was limited to 25 out of 40 degrees, adduction was limited to 15 out of 25 degrees, and abduction was limited to 25 out of 45 degrees. Repetitive motion did not further limit motion, but flare ups were expected to further limit flexion to 80 degrees and extension to 10 degrees. No ankylosis was noted. Constant use of crutches was noted. Regarding functional impact, the examiner noted that the Veteran could walk for an hour in an 8-hour day, can sit for 30 minutes and stand for 5, and can stand for 1 hour and sit for 3 during an 8-hour day. In a June 2015 private treatment note from UWMC Stadium Sports medicine indicates the Veteran has not walked on the right leg since 2013 and uses crutches to ambulate. She had been unable to actively motion her knee in that time-span. She had pain with any type of movement of the knee and no real pain with just resting it. She does note an occasional sharp or burning pain when her leg is in an awkward position or is unsupported. Her pain was along the medial joint and posterior knee mores medially. Subsequent records, including after her July 2016 surgery, indicate continued pain and muscle atrophy. In February 2019, the Veteran attended a Peripheral Nerves Conditions DBQ examination. The examiner diagnosed right lower extremity chronic regional pain syndrome and reflex sympathetic dystrophy (below the knee) with right knee tear of the junction of the anterior horn and medial meniscus; and right lower extremity chronic regional pain syndrome and reflex sympathetic dystrophy (above the knee) with hip strain and thigh atrophy. Upon examination, the examiner noted moderate right lower extremity intermittent pain, paresthesias, and numbness. Further, moderate incomplete paralysis of the musculocutaneous nerve was noted. In February 2019, the Veteran attended a Knee and Lower Leg Conditions DBQ examination. The examiner diagnosed right lower extremity chronic regional pain syndrome and reflex sympathetic dystrophy (below the knee) with right knee tear of the junction of the anterior horn and medial meniscus; and right lower extremity chronic regional pain syndrome and reflex sympathetic dystrophy (above the knee) with hip strain and thigh atrophy, and right knee surgical scars. Upon examination, the Veteran had full strength in right knee flexion and extension. She also had painful and limited range of motion of the right knee. Flexion was limited to 120 out of 140 degrees, and extension was limited to 10 degrees. There was no evidence of knee instability or subluxation. No muscle atrophy was noted. Regarding Correia, the examiner noted that there is objective evidence of pain on passive range of motion testing of the right knee. There is objective evidence of pain on non-weight bearing testing of the right knee. There is no evidence of pain on passive range of motion testing of the left knee. There is no evidence of pain on non-weight bearing testing of the left knee. In February 2019, the Veteran attended a Hip Conditions DBQ examination. The examiner diagnosed right lower extremity chronic regional pain syndrome and reflex sympathetic dystrophy (above the knee) with hip strain and thigh atrophy. Upon examination, hip flexion, extension, and abduction strength were all normal. Right hip range of motion was all normal. No ankylosis or muscle atrophy were noted. No assistive device usage was noted. Regarding Correia, there was no evidence of pain on passive range of motion testing of the right hip. There was no evidence of pain on non-weight bearing testing of the right hip. There was no evidence of pain on passive range of motion testing of the left hip. There was no evidence of pain on non-weight bearing testing of the left hip. In February 2019, the Veteran attended a Muscle Injuries DBQ examination. The examiner diagnosed right lower extremity chronic regional pain syndrome and reflex sympathetic dystrophy (above the knee) with hip strain and thigh atrophy. Upon examination, Muscle Group XI right side was noted to be affected. However, no signs and symptoms of muscle disability were noted, and muscle strength was normal. No muscle atrophy was noted. Based on the foregoing evidence of record, the Board finds that a higher evaluation is not warranted for either issue on appeal. With regard to the Veteran’s below knee disability, the evidence of record for the entire period does not show severe incomplete paralysis, with marked muscular atrophy, indicative of a higher 60 percent evaluation. While muscle atrophy was noted in the January and June 2015 medical records, severe incomplete paralysis was not. Indeed, while 0/5 strength was noted in her hip flexion, 4/5 strength was noted in ankle plantar flexion, ankle dorsiflexion, and great toe extension. Further, subsequent February 2019 records collectively indicate full knee strength with no muscle atrophy. With regard to the Veteran’s below knee disability, the evidence of record for the entire period does not show complete paralysis of the femoral nerve. Indeed, the January 2015 examination noted hip flexion limited to 3 out of 5 strength, hip abduction limited to 4 out of 5 strength, hip extension limited to 4 out of 5 strength, and knee extension limited to 0 out of 5 strength, collectively indicating less than complete paralysis. The February 2019 examiners finding of normal hip strength and range of motion further supports this analysis. In making its determinations in this case, the Board has carefully considered the Veteran’s contentions with respect to the nature of her service-connected disabilities at issue and notes that she is competent to describe certain symptoms associated with her knee disabilities, but she is not competent to determine its level of severity. Moreover, the Board finds that the competent evidence, including her VA examinations, are detailed and specific to the rating criteria related to her knee conditions. In other words, this clinical evidence is the most probative evidence relating to the severity of her knee symptoms during the appellate period at question. Finally, the Board finds that moderate incomplete paralysis of the musculocutaneous nerve was noted in the February 2019 Peripheral Nerves Conditions DBQ examination. However, symptoms associated with this finding are already contemplated in the Veteran’s below knee evaluation and a separate rating would constitute impermissible pyramiding. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an increased rating for her service-connected knee disabilities. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.159, 4.1-4.16, 4.104, DCs 8520, 8526. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (Continued on the next page)   Continued on next page ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel