Citation Nr: 20002977 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-42 115 DATE: January 14, 2020 ORDER An initial rating in excess of 10 percent for right knee degenerative arthritis is denied. An initial 10 percent rating for right knee instability is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED A separate rating for bowel or bladder impairment secondary to the service-connected lumbar spine disability is remanded. Entitlement to an initial rating in excess of 20 percent for intervertebral disc syndrome (IVDS) is remanded. An initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s right knee disability is manifested by pain, limitation of motion in flexion to 100 degrees at worst, and slight instability without further functional impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right knee degenerative arthritis have not been met. 38 U.S.C. §§ 1110, 1155, 5107; 38 C.F.R. §§ 3.102, 3.310, 4.3, 4.7, 4.71a Diagnostic Codes (DCs) 5260, 5261. 2. The criteria for a separate 10 percent rating, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1110, 1155, 5107; 38 C.F.R. §§ 3.102, 3.310, 4.3, 4.7, 4.71a DCs 5257. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from December 1990 to April 1995. The case is on appeal from an April 2013 rating decision denying higher or separate ratings related to the lumbar spine and right knee disabilities. In conjunction with the increased rating claims now before the Board, the Veteran has claimed entitlement to TDIU which was separately denied in a May 2016 rating decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. For musculoskeletal disabilities, such as those to the knees, there are additional criteria. 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 enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. Entitlement to an initial rating in excess of 10 percent for right knee degenerative arthritis The Veteran claims that the 10 percent rating for her right knee does not adequately reflect the severity of her symptoms. Rating Criteria for Knees Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. While the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant DCs for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, and lateral instability and recurrent subluxation of the knee. The Board will explore all possibilities in this case. DC 5260 rates based on limitation of flexion. Normal flexion is to 140 degrees. When flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. DC 5261 rates based on limitation of extension. Normal extension is to zero degrees. When extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. The diagnostic criteria applicable to recurrent subluxation or lateral instability is found at 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. Other DCs pertaining to the knee include DC 5258, under which a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 holds that symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. The diagnostic criteria applicable to impairment of the tibia and fibula are found at 38 C.F.R. § 4.71a, DC 5262. Under that code, a 10 percent evaluation is warranted when malunion of the tibia and fibula is productive of slight knee or ankle disability. A 20 percent evaluation is warranted when malunion of the tibia and fibula is productive of moderate knee or ankle disability, and a 30 percent evaluation is warranted when such disability is marked. A 40 percent evaluation is warranted for nonunion of the tibia and fibula, with loose motion, requiring a brace. Finally, the diagnostic criteria applicable to knee replacement (prosthesis) are found at 38 C.F.R. § 4.71a, DC 5055. As the Veteran has not had a knee replacement, this code is inapplicable. The Veteran’s right knee is rated under 38 C.F.R. § 4.71a, DC 5260 which provides for ratings based on limitation in knee flexion. In July 2012, she raised her claim for an increased rating. Social Security Administration (SSA) records from June 2012 reflect that the Veteran had limited right knee flexion and knee swelling without obvious effusion, but do not reveal, in terms of degrees, the range of motion in the right knee. In February 2012, limited range of motion in flexion was noted in the right knee. In February 2013, range of motion in the right knee was from 0 degrees extension to 125 degrees flexion. In March 2013, painless range of motion in both knees was noted. At a March 2013 VA examination, the Veteran reported difficulty with sitting or standing for more than 10 minutes, stairs, jogging, and long walks. Range of motion in the right knee was from 0 degrees extension to 110 degrees flexion. No reduction was noted on repetition. Less movement than normal, incoordination, impaired ability to execute skilled movements smoothly, disturbances of locomotion, and interference with sitting were noted. The Veteran used a knee brace constantly and cane occasionally. Functional impact was noted on squatting, kneeling, and prolonged walking or standing. Instability testing was normal and there was no evidence of recurrent subluxation. In April 2014, range of motion in the knees was from 5 degrees extension to 120 degrees flexion in the right knee. There was also trace effusion and patellofemoral crepitus. In March 2015 and August 2015 private treatment records, the Veteran’s range of motion was reported as being from 10 degrees extension to 120 degrees flexion. Effusion and crepitus were also noted at both appointments. In December 2015, the Veteran denied knee instability and swelling. Pain was described as dull and aching of mild to moderate degree. Her knee pain was aggravated by stairs and ambulation and alleviated by standing and sitting. In March 2016, the Veteran was afforded a VA examination of her knees. During flare-ups, the Veteran experienced throbbing pain when sitting or standing for long periods. She also noted functional impairment from limited mobility. Range of motion was from 0 degrees extension to 140 degrees flexion, without reduction on repetition. Pain on movement was noted in flexion in the right knee. There was no additional functional limitation indicated with repeated use over time. The Veteran regularly used a knee brace. Instability testing was normal and there was no evidence of recurrent subluxation. A June 2016 private treatment note indicated that crepitus was present. In September 2016, the Veteran submitted an opinion from an orthopedic surgeon who stated that the Veteran’s 10 percent rating for her right knee did not adequately reflect the severity of her symptoms. The orthopedic surgeon believed that the rating did not accurately reflect the Veteran’s use of knee braces to walk more than 15-20 feet, her use of a small table underneath her desk at work to mitigate her knee pain, or her limitation mainly to swimming for exercise. He also noted that the Veteran has multiple loose bodies in the right knee that can be palpated in the supra-patella pouch. He also noted that in 2013 the Veteran was scheduled for knee surgery but opted for lumbar spine surgery instead. In a December 2016 private treatment record, range of motion in the knees was noted to be from 0 degrees extension to 135 degrees flexion. This was unchanged in March 2017 and September 2017. In November 2017, a private treatment record notes pain was primarily on the anterior and posterior aspect of the knees that is aching, dull, and sharp. Knee pain was described as mild to moderate. Pain was aggravated by ambulation. A loose body was found on x-ray in the right knee. Though the Veteran noted some catching, especially in the left knee, no instability was noted on examination. In February 2018, private treatment records reveal range of motion from 0 degrees extension to 120 degrees flexion in the right knee. Private treatment records from June 2018 note that the Veteran’s knees were giving way and locking. The Veteran was afforded another VA examination of her right knee in August 2019. She noted that she sometimes uses a cane to walk and stated that her knees sometimes give way and that her knees are always inflamed. She receives injections every few months to manage pain. Range of motion was from 0 degrees extension to 100 degrees flexion with pain to palpation over the medial and lateral joint lines. While pain was noted on examination, pain on motion was said not to contribute to functional loss. No further reduction of range of motion was noted on repetition. Pain was noted on passive and active motion, but not on weight-bearing or nonweight-bearing. The examiner stated that functional impairment during a flare-up resulted in the Veteran using a cane and elevating her legs. No additional loss of range of motion was noted as a result of a flare-up. No instability was found on examination. The Veteran used a knee brace constantly. Functional impairment was noted as affecting ability to kneel, climb stairs, and prolonged walking and standing. Private treatment records from August 2019 reveal right knee range of motion from 0 degrees extension to 120 degrees flexion. In response to the August 2019 VA examination, the Veteran’s attorney argues that the examination was inadequate as the examiner did not indicate when or where the Veteran experience right knee pain. However, the August 2019 examiner noted that pain on motion did not result in functional loss. As the rating code compensates for functional impairment in earning capacity, and pain on motion was said not to contribute to functional loss, there is no reasonable possibility that remand for a new examination would benefit the claim, 38 C.F.R. § 3.156(d), and the Board finds that the examination is adequate to rate the claim. Flexion The Board finds that a rating in excess of 10 percent is not warranted for right knee limitation of flexion. The Veteran’s right knee range of motion in flexion throughout the appeal was from 100 degrees to 140 degrees. This is well above the limitation necessary for a higher evaluation. Note that a 20 percent rating requires flexion limited to 30 degrees or less. Further, the 10 percent rating contemplates the Veteran’s pain, which has been noted in private treatment records as mild to moderate. 38 C.F.R. §§ 4.40, 4.45, 4.59. The ratings assigned also contemplate her use of a knee brace. See Spellers v. Wilkie, 30 Vet. App. 211 (2018). Private treatment records do note that the Veteran receives injections to help manage pain as well as potential left knee surgery, but do not reveal any right knee surgery. Further, while injections may help alleviate pain, there is no indication that there is further functional impairment associated with the injections. The August 2019 VA examination also shows reduced range of motion as compared to private treatment records. Thus, the Board finds that the August 2019 VA examination full reflects the severity of the Veteran’s right knee disability, with or without the use of pain management. Extension The Board finds that a separate rating for limitation of extension is not warranted. While a private treatment record showed extension limited to 5 degrees on one occasion in 2014 and two occasions in 2015 showed extension limited to 10 degrees, the balance of the other records demonstrate completely normal extension to zero degrees. Thus, the Board finds that limitation of extension is not a typical manifestation of the right knee disability. Isolated findings cannot be viewed out of context of the remainder of the record. The Veteran’s entire history must be considered. In this case, the Veteran typically has full extension, even on repetition. Therefore, the Board finds that a separate rating for extension is not warranted. Instability The Veteran has also reported that her knees give way, specifically in a November 2017 record, where she described occasional “catching”, and on examination in August 2019 where she stated that her knee would “sometimes give way.” This indicates that there is perhaps some knee instability, particularly during a flare-up. Although every time the Veteran’s knee has been tested objectively for instability, the results have been normal, VA medical evidence regarding knee instability is not categorically more probative than lay evidence of knee instability. See English v. Wilkie, 30 Vet. App. 347 (2018). Based on the Veteran’s credible lay statements, the Board finds that a separate 10 percent rating for slight instability is warranted. While higher ratings are available in the schedule, the Board finds that given all objective testing has been normal, the severity is no more than slight. Other Potential Codes To the extent that there have been reports of right knee locking and effusion, there is no indication of any additional functional limitation not contemplated in the above ratings. Further, with respect to the loose bodies in the right knee, any functional limitation would be reflected in the ratings assigned for limitation of range of motion and instability. The Board notes that the orthopedic surgeon has offered a legal opinion as to the Veteran’s 10 percent rating not adequately reflecting the severity of her symptoms. However, the rating to be assigned is a question of applying the law to the facts of a particular case. The symptoms noted by the surgeon are reflected in the ratings assigned (pain, instability, and functional limitation in walking, standing, sitting, climbing, and exercise). In all, the Board finds that a higher rating than 10 percent for limitation of motion is not warranted, but a separate 10 percent for instability is warranted. REASONS FOR REMAND 1. Entitlement to a separate rating for bowel or bladder impairment secondary to the service-connected lumbar spine disability is remanded. The Veteran claims that her bowel and bladder impairment is related to her lumbar spine disability. The Board finds that a remand to obtain a new medical opinion to resolve this question is necessary before the claim can be adjudicated. When assigning a rating for a lumbar spine disability, VA is to rate separately any associated objective neurologic abnormality, including bowel or bladder impairment. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, note (1). SSA records, dated June 2012, reveal that the Veteran has experienced urinary incontinence since 1999, which is not related to her lumbar spine or right lower extremity radiculopathy. Notably, private treatment records show a long history of treatment for interstitial cystitis and placement of an InterStim device in April 2011. Private treatment records from January 2013 reveal that the Veteran had developed severe urinary and bowel incontinence, worse at night, over the last 4 months. A February 2014 private treatment record notes the Veteran’s statement that her InterStim device had not been working, and noted that this has been since her back surgery in September 2013. In September 2016, the Veteran submitted a medical opinion from an orthopedic surgeon, who opined that the Veteran’s incontinence was due to her lumbar surgery. The orthopedic surgeon stated that after surgery, the Veteran’s inability to control her bladder markedly escalated, as she will now soil herself at least 3 or 4 times per week when sleeping and twice during the day. The orthopedic surgeon also noted that the Veteran now had difficulty controlling her bowels. In December 2017, the Veteran reported bothersome fecal and urinary incontinence. She was not sure if her InterStim was still working, was not certain if her InterStim had helped her symptoms when it was working, and noted that the InterStim only helped her symptoms when first placed in April 2011. In August 2019, the Veteran was afforded a VA examination of her bowel and bladder incontinence. The examiner opined that the Veteran’s bowel and bladder incontinence was less likely than not caused or aggravated by her lumbar spine and right lower extremity radiculopathy. Specifically, the examiner noted that the Veteran’s incontinence stemmed from interstitial cystitis. As a result, in 1999 she had to have a neurostimulator implant for bladder control. Her current radicular symptoms onset in 2011-2012 and resulted in back surgery in 2013. After surgery, her radiculopathy and lumbar spine pain improved, but her interstitial cystitis and incontinence remained. In fact, over time, the Veteran’s interstitial cystitis has gotten worse, as has her inability to control her bowel and bladder. Thus, the examiner opined that the Veteran’s bowel and bladder incontinence were less likely than not related to her lumbar spine and related right lower extremity radicular disabilities. The Board finds that neither medical opinion addressing the Veteran’s bowel and bladder incontinence is adequate to adjudicate the claim. The medical opinion from the orthopedic surgeon is not well-reasoned as the orthopedic surgeon did not seem to consider or explain how changes in the Veteran’s interstitial cystitis would affect her bowel and bladder control. The August 2019 VA examiner’s medical opinion is also not adequate as he does not explain what, if any, connection there is between the effectiveness of the Veteran’s InterStim device and her back surgery. Further, it is unclear whether the Veteran’s incontinence has gotten worse only because her InterStim has become ineffective or if interstitial cystitis itself has worsened. Thus, the claim is remanded to obtain a new medical opinion. 2. Entitlement to an initial rating in excess of 20 percent for IVDS is remanded. When previously on appeal in April 2019, the Board remanded the claim for a higher lumbar spine rating as previous examinations did not include testing for pain on active and passive motion and on weight-bearing and nonweight-bearing. Correia v. McDonald, 28 Vet. App. 158 (2016). While the August 2019 VA examination included the required testing for the knees, it did not include this testing for the back. Therefore, to ensure compliance with the Board’s prior remand directives, the Board finds another remand for a VA examination of the lumbar spine is necessary. Stegall v. West, 11 Vet. App. 268 (1998). 3. An initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. 4. Entitlement to TDIU is remanded. The Board has remanded the Veteran’s claim for a rating in excess of 20 percent for the Veteran’s lumbar spine disability for a new examination. As part of the examination, the Veteran’s nerves of the lower extremities will be examined. Thus, the development that occurs on remand could possibly reveal more severe symptomatology of right lower extremity radiculopathy. Therefore, the Board finds that the claim of entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is inextricably intertwined with the low back rating being remanded. Thus, the Board must remand this claim as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are inextricably intertwined). Similarly, the Board must remand the claim of entitlement to TDIU. If higher ratings are granted on remand, the disability picture that the Board is evaluating as part of the TDIU claim will necessarily be affected. The Board, therefore, finds that the issue of entitlement to TDIU is inextricably intertwined with the increased rating issues being remanded. Therefore, the Board must also remand the TDIU claim. Id. The matters are REMANDED for the following action: 1. Afford the Veteran a new VA examination of her lumbar spine. The examination should include testing for pain on active and passive motion as well as in weight-bearing and nonweight-bearing. 2. Obtain a new medical opinion regarding whether the Veteran’s bowel and bladder incontinence was caused or aggravated by her lumbar spine disability. Specifically, the examiner should opine as to whether: It is at least as likely as not that the Veteran’s bowel and/or bladder incontinence was (i.) caused or (ii.) aggravated by her lumbar spine disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. In particular, the examiner should address the Veteran’s reports that her InterStim device stopped working after her September 2013 lumbar spine surgery. Further, if the Veteran’s interstitial cystitis has gotten worse over time, the examiner should explain whether the back surgery had any impact on the interstitial cystitis worsening. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. George 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.