Citation Nr: 19168917 Decision Date: 09/05/19 Archive Date: 09/05/19 DOCKET NO. 14-30 663 DATE: September 5, 2019 ORDER Entitlement to a disability rating in excess of 10 percent prior to April 14, 2017, and in excess of 20 percent thereafter, under Diagnostic Code (DC) 5237, for service connected thoracolumbar spine sprain and scoliosis, is denied. Entitlement to a disability rating in excess of 10 percent, under DC 5260, from July 1, 2012, for service connected left knee patellofemoral syndrome is denied. Entitlement to a disability rating in excess of 10 percent for service connected right knee patellofemoral syndrome, under DC 5260, from July 1, 2012, is denied. FINDINGS OF FACT 1. Prior to April 14, 2017, the Veteran’s back disability caused, at worst, flexion to 45 degrees (and to 75 degrees with pain) and there was no evidence of ankylosis, invertebral disc syndrome, or muscle spasms or guarding that resulted in abnormal gait or spinal contour; since April 14, 2017, there was no evidence of ankylosis or invertebral disc syndrome requiring prescribed bed rest. 2. For the entire appeal period, the limitation of flexion of the Veteran’s left leg was to 100 degrees, at worst, with no evidence of history of recurrent subluxation or lateral instability, ankylosis, patellar subluxation/dislocation, meniscal conditions or surgery, medial tibial stress syndrome, stress fractures, or chronic tibial/fibular impairments for his left knee. 3. For the entire appeal period, the limitation of flexion of the Veteran’s right leg was to 100 degrees, at worst, with no evidence of history of recurrent subluxation or lateral instability, ankylosis, patellar subluxation/dislocation, meniscal conditions or surgery, medial tibial stress syndrome, stress fractures, or chronic tibial/fibular impairments for his right knee. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent prior to April 14, 2017, and in excess of 20 percent thereafter, under DC 5237, for service connected thoracolumbar spine sprain and scoliosis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DC 5237 (2018). 2. The criteria for entitlement to a disability rating in excess of 10 percent, under DC 5260, from July 1, 2012, for service connected left knee patellofemoral syndrome, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DC 5260 (2018). 3. The criteria for entitlement to a disability rating in excess of 10 percent, under DC 5260, from July 1, 2012, for service connected right knee patellofemoral syndrome, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DC 5260 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Navy from June 1992 to June 2012. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Having reviewed the record, the Board finds there has been substantial compliance with its April 2018 remand directives. Stegall v. West, Vet. App. 268, 270-71 (1998). Notably, the Veteran was afforded with new VA examinations that adequately addressed all required findings, to include additional functional loss (in degrees). Thus, the Board finds the AOJ’s post-remand actions constitute substantial compliance with the Board’s remand directives with respect to these matters. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 further 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 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Id. Furthermore, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. As for weakness, a little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. Id. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). While the Veteran’s entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a disability rating in excess of 10 percent prior to April 14, 2017, and in excess of 20 percent thereafter, for service connected thoracolumbar spine sprain and scoliosis, is denied. The Veteran seeks an entitlement to a higher disability rating for his service connected thoracolumbar spine sprain and scoliosis. He claims that his range of motion has decreased and that he is in moderate to severe pain every day. See October 2012 Notice of Disagreement. The Veteran is in receipt of a 10 percent disability rating prior to April 14, 2017, and a 20 percent disability rating since April 14, 2017, under DC 5237. The Veteran underwent various VA examinations throughout the appeal period. During the May 2012 VA examination, he was diagnosed with sprain and scoliosis of the thoracolumbar spine. He reported pain with bending and lifting during flare-ups. His initial range of motion (ROM) for flexion (as well as the evidence of painful motion) was found to end at 75 degrees, extension at 30 degrees of greater, right lateral flexion at 25, objective evidence of painful motion at 20, left lateral flexion ends at 20, and objective evidence of painful motion at 20. While less movement than normal and pain on movement were noted after repetitive use testing, there was no additional limitation in ROM of the back following the repetitive use testing. The Veteran did not have localized tenderness or pain to palpation for joints, nor guarding or muscle spasm of the back that resulted in abnormal gait or abnormal spinal contour. There was also no evidence of radiculopathy nor of IVDS, and he had normal reflex/sensory exam. The Veteran underwent another VA examination in March 2017, during which time he reported pain and decreased ROM during exacerbations and overuse. His initial ROM for forward flexion was to 45 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. After observed repetitive use, the Veteran was found to be able to perform with at least three repetitions, with no additional loss of function or ROM. Furthermore, while the exam was conducted during a flare-up, the examiner noted that pain, weakness, fatigability or incoordination significantly does not limit functional ability with flare ups. The Veteran was found not to have any muscle atrophy, ankylosis, radiculopathy, or IVDS, and he had a normal reflex exam and a negative straight leg raising test. There was also no evidence of localized tenderness, guarding or muscle spasm of the thoracolumbar spine. After the April 2018 Board remand, a new VA examination was provided in April 2019, for the assessment of the degree of ROM for any associated functional loss or impairment. During the April 2019 VA examination, the Veteran reported flare-ups with cold weather and damp climates, increased stiffness and increased pain with walking and weight bearing. His initial ROM for forward flexion was to 50 degrees, extension to 10 degrees, right lateral flexion /left lateral flexion/right lateral rotation/left lateral rotation to 20 degrees. The ROM itself was not found to contribute to any functional loss. Pain was noted on examination on rest and with weight bearing, and there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. After observed repetitive use, the Veteran was found to be able to perform with at least three repetitions, with no additional loss of function or ROM. While pain was identified as a factor that contributed to his functional loss, it was not found to affect his ROM (the Veteran was found to present the same ROM as the initial ROM). Furthermore, while pain and weakness were found to limit functional ability with flare ups, only his forward flexion was found to decrease by 10 degrees (to 40 degrees) and all the rest were found to have the same ROM as his initial ROM. There were also no signs of ankylosis, muscle spasm of guarding, or IVDS of the thoracolumbar spine. The Veteran was found to have right and left lower extremity radiculopathy, but there were no other signs of radiculopathy, and his passive ROM was found to be the same as his active ROM. Prior to April 14, 2017 As noted earlier, the Veteran is in receipt of a 10 percent disability rating prior to April 14, 2017. Pertinent regulations for consideration were provided to the Veteran in the June 2014 Statement of the Case (SOC) and will not be repeated here in full. After reviewing all records, the Board concludes that the Veteran is not entitled to a disability rating in excess of 10 percent for his service connected thoracolumbar spine sprain and scoliosis. The Board considered whether a higher 20 percent rating was warranted for this period, but finds it not applicable. At worst, the Veteran’s initial forward flexion was to 45 degrees (at most, to 75 degrees, with evidence of painful motion also at 75 degrees). See March 2012 VA examination, April 2017 VA examination. Furthermore, at no time was the Veteran found to have muscle spasm or guarding severe enough to result in abnormal gait or spinal contour. There is no other medical evidence to the contrary. The Board also considered whether a higher 40, 50, or 100 percent rating would be warranted for this period, but finds it inapplicable. The Veteran was consistently found to have no ankylosis (either favorable nor unfavorable) throughout this period, nor did he have forward flexion of the thoracolumbar spine 30 degrees or less. See March 2012 VA examination, April 2017 VA examination. In evaluating the Veteran’s increased rating claim, the Board must consider all applicable diagnostic codes, with an eye towards assigning the most favorable code. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Thus, the Board considered the aforementioned codes that could warrant a higher or an additional rating. The Veteran does not have IVDS, so DC 5243 is not applicable. The Board considered the possibility of awarding higher rating under 38 C.F.R. §§ 4.40 and 4.45 and declines to do so. The Board acknowledges the Veteran’s report of pain with bending and lifting during flare-ups and overuse. See March 2012 VA examination, April 2017 VA examination. However, the general rating formula for spine disabilities contemplates symptoms such as pain or aching in the area of the spine affected by residuals of injury or disease. Therefore, the assigned rating already contemplates some level of functional loss, including painful motion. Furthermore, the Veteran was able to perform repetitive use testing, with no additional loss of function or range of motion. As such, a higher rating is not warranted under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (holding that when evaluating musculoskeletal disabilities, 38 C.F.R. § 4.40 may be used to understand the nature of a veteran’s disability, but not as a basis to assign a separate disability rating). In summary, the Board finds a higher rating for the Veteran’s back condition is not warranted during this period, including after consideration of the DeLuca criteria and alternative DCs. As the evidence preponderates against the claim, the benefit of the doubt rule has no application. Gilbert, 1 Vet. App. at 53-56; 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102.   Since April 14, 2017 The Veteran is in receipt of a 20 percent disability rating since April 14, 2017, under DC 5237 for his thoracolumbar spine sprain and scoliosis. The Board has considered whether a higher 40, 50, or 100 percent rating would be warranted for this period, but finds it in applicable. The Veteran was consistently found to have no ankylosis (neither favorable nor unfavorable) throughout this period. He also has never had forward flexion of the thoracolumbar spine to 30 degrees or less. See April 2017 VA examination, April 2019 VA examination. Again, the Veteran does not have IVDS. Additionally, the Board has considered whether there are neurological abnormalities that would warrant a higher rating for the entire appeal period, for the General Rating Formula further instructs the adjudicator to “[e]valuate any associated objective neurologic abnormalities separately under an appropriate diagnostic code.” See General Rating Formula, Note (1). Neurological manifestations of radiculopathy of the left and right lower extremities, associated with service connected thoracolumbar spine sprain and scoliosis, have been noted in the record. See April 2019 VA examination. However, the question of a higher rating for radiculopathy of left and right lower extremities is not before the Board for the following reasons. In a May 2019 rating decision, the RO granted a separate 20 percent rating for radiculopathy of left and right lower extremities, each, effective April 1, 2019, under DC 8520. The Veteran has not filed a notice of disagreement contesting that rating or effective date. The RO did not take any actions that would lead him to believe the radiculopathy rating of either extremity was part of his appeal to the Board, such as include it as an issue in the Statement of the Case, nor has the Veteran submitted any statements suggesting that he believes this issue is part of his appeal. Accordingly, entitlement to a higher disability rating for radiculopathy of left and right lower extremities is not presently on appeal. The Veteran is still within the time period to contest the May 2019 rating decision, if he would like to do so. Furthermore, the Board notes there are no neurological abnormalities, other than radiculopathy of the right and left lower extremities, noted throughout this period. Thus, a separate compensable disability rating for neurological abnormalities associated with the service-connected thoracolumbar spine sprain and scoliosis (excluding the already service-connected radiculopathy of the right and left lower extremities), is unwarranted. In summary, the Board finds a higher rating for the Veteran’s thoracolumbar spine sprain and scoliosis, is not warranted for any time since April 14, 2017, including after consideration of the DeLuca criteria and alternative DCs. As the evidence preponderates against the claim, the benefit of the doubt rule has no application. Gilbert, 1 Vet. App. at 53-56; 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018). 2. Entitlement to a disability rating in excess of 10 percent for service connected left knee patellofemoral syndrome, under DC 5260, since July 1, 2012, is denied. 3. Entitlement to a disability rating in excess of 10 percent for service connected right knee patellofemoral syndrome under DC 5260, since July 1, 2012, is denied. The Veteran seeks a higher disability rating for his service connected left and right knee patellofemoral syndrome. He claims that he is in constant pain and that given the amount of pain he experiences from standing and ascending/descending stairs, as well as the sound that his knees make (in the course of normal range of motion), both knees warrant a higher rating. See October 2012 Notice of Disagreement. Initially, the Board notes the Veteran’s contentions, the effective date for the current rating (from July 1, 2012 to the present), the diagnostic code under which disability ratings are assigned, and the medical findings/evidence of record are identical for his right and left patellofemoral syndrome. Thus, the Board proceeds to adjudicate these issues under this same analysis section. The Veteran is in receipt of a 10 percent disability rating under DC 5260 for each knee, since July 1, 2012. Pertinent regulations for consideration were provided to the Veteran in the June 2014 Statement of the Case (SOC) and will not be repeated here in full. After reviewing all records, the Board concludes that the Veteran is not entitled to a disability rating in excess of 10 percent throughout the appeal period for either of his service connected knees. The Veteran first underwent a VA examination in March 2012, during which time he was diagnosed with patellofemoral syndrome. He reported pain after going for long walks and ascending/descending stairs. His initial ROM for both of his knees was to 125 degrees for flexion, with objective evidence of painful motion also at 125 degrees, and 0 degrees for extension (no limitation of extension). After repetitive testing, less movement than normal was noted, but not any additional limitation of ROM for either knee. He had 5/5 knee flexion and a normal joint stability, and there was no evidence of patellar subluxation/dislocation, meniscal conditions or surgery, medial tibial stress syndrome, stress fractures, or chronic tibial/fibular impairments, for either knees. He was afforded another VA examination in April 2017. The Veteran reported flare-ups (intermittent pain) and limitation of motion in his bilateral knees during flare-ups. He also reported pain and decreased range of motion of both knees during exacerbations and overuse. His initial ROM for both knees was to 140 degrees, for flexion (which is normal ROM), and to 0 degrees for extension (which is also normal). After repetitive testing, he was found to have no additional loss of function or ROM, pain, weakness, fatigability or incoordination that significantly limits functional ability for either knee. He had 5/5 muscle strength, with no history of subluxation/lateral instability, ankylosis, patellar subluxation/dislocation, meniscal conditions or surgery, medial tibial stress syndrome, stress fractures, or chronic tibial/fibular impairments, for either knee. After the April 2018 Board remand (for obtaining degree of ROM loss due to pain during use and degree at which the pain begins), the Veteran underwent a VA examination for both knees in April 2019. The Veteran reported persistent knee pain on sitting, as well as tenderness of the anterior aspects of both knees. For both knees, his initial ROM for knee flexion was to 100 degrees, knee extension to 0 degrees, with objective evidence of localized tenderness or pain on palpation of the joint (3/10 dull pain in anterior aspect of both knees). However, the ROM itself was not found to contribute to any functional loss. After repetitive testing, there was no additional loss of function or ROM for both knees. The examiner found that the pain causes functional loss (0-100 degrees for both flexion and extension of both knees) and weakness/flare ups affect functional ability. The Veteran had 4/5 muscle strength and normal joint stability. There was also no evidence of muscle atrophy, meniscus condition, ankylosis, history of recurrent subluxation or recurrent effusion, recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment, or genu recurvatum. The Board considered whether a higher 20 or 30 percent rating is warranted but finds neither applicable. While the Veteran underwent various examinations for his knees throughout the appeal period, the limitation of flexion of both legs was, at worst, to 100 degrees, respectively (and at maximum, to 140 degrees). Even considering estimated reduced range of motion during flare ups, flexion was to 80 degrees. At no time during the appeal period was the flexion of either leg ever found to be limited to or approximate 30 degrees or less. See March 2012, April 2017, and April 2019 VA examinations. Thus, higher disability ratings for both knees are denied. The Board also considered all applicable diagnostic codes (DC 5256 through 5263) relating to knee conditions that could warrant a higher or an additional rating. The Board also concludes, after review of the full record, that none of the DCs are applicable, because there is no evidence of ankylosis, knee impairment such as recurrent subluxation or lateral instability, meniscus condition, knee surgery (ie. meniscectomy), tibial or fibular impairments, limitation of leg extension compensable under DC 5261, or genu recurvatum. The Board also considered the assignment of schedular ratings in excess of those upheld herein based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). To the extent that the Veteran has experienced functional loss due to pain and weakness, these symptoms have been fully contemplated by the Veteran’s assigned schedular ratings (ie. pain after extended walk/going up and down stairs). No additional limitation of range of motion was noted and the Veteran was found to be able to perform after repetitive use testing throughout the VA examinations. See March 2012, April 2017, and April 2019 VA examinations. In summary, the Board finds neither of his service-connected knee patellofemoral syndrome warrants a higher rating under DC 5260 anytime during the appeal period. As the evidence preponderates against the claim, the benefit of the doubt rule has no application. Gilbert, 1 Vet. App. at 53-56; 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.