Citation Nr: 20021425 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-26 603 DATE: March 25, 2020 ORDER Entitlement to service connection for a bilateral hip disability is denied. Entitlement to an increased rating of 40 percent, but no higher, for lumbar spine degenerative disc disease (DDD) is granted. Entitlement to a separate rating of 30 percent, but no higher, for left knee instability is granted. Entitlement to a separate rating of 10 percent, but no higher, for left knee limitation of extension is granted. Entitlement to an increased rating in excess of 10 percent for left knee osteoarthritis limitation of flexion is denied. Entitlement to an increased rating in excess of 20 percent for left lower extremity radiculopathy is denied. FINDINGS OF FACT 1. The Veteran’s bilateral hip osteoarthritis is less likely than not due to or aggravated by his service-connected lumbar spine DDD. 2. The Veteran’s lumbar spine DDD symptoms more closely approximate forward flexion limited to 30 degrees or less; he does not have symptoms approximating a complete inability to move his lumbar spine. 3. The evidence reflects that the Veteran had severe instability of the left knee, resulting in many falls and difficulty walking without assistance. 4. The Veteran’s left knee extension is manifested by painful motion; it was not manifested by limitation of extension to 15 degrees or more. 5. The Veteran’s left knee flexion is manifested by painful motion; it was not manifested by limitation of flexion to 30 degrees or less. 6. The Veteran’s left lower extremity radiculopathy manifests in moderate symptoms, such as numbness. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hip disability have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2019). 2. The criteria for entitlement to an increased rating of 40 percent, but no higher, for lumbar spine DDD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5242 (2019). 3. The criteria for entitlement to a separate rating of 30 percent, but no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5257 (2019). 4. The criteria for entitlement to a separate rating of 10 percent, but no higher, for left knee limitation of extension have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5261 (2019). 5. The criteria for entitlement to an increased rating in excess of 10 percent for left knee osteoarthritis limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5260 (2019). 6. The criteria for entitlement to an increased rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Code 8620 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1943 to February 1946. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA). This case was remanded in December 2018 and November 2019 for further development. In December 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. It does not appear that the Veteran filed a substantive appeal (VA Form 9) to a January 2020 statement of the case (SOC). As a result, the issue adjudicated in that SOC, entitlement to service connection for a penile deformity, is not before the Board. Service Connection 1. Entitlement to service connection for a bilateral hip disability. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran is diagnosed with bilateral mild hip osteoarthritis, with a date of diagnosis of December 2014. See December 2019 VA examination. The Board notes that other VA examiners diagnosed hip strain, see February 2017 and May 2019 VA examinations, but those diagnoses are given no probative weight because they contradict the finding that the Veteran has had osteoarthritis since 2014. In December 2019, a VA examiner opined it was less likely than not that the Veteran’s service-connected lumbar spine DDD caused or aggravated his bilateral hip disability. Notably, the examiner discussed the Veteran’s age at the time of his diagnosis of hip osteoarthritis and that such incident increases with age. Additionally, the Veteran’s lumbar spine disability and left lower extremity muscle weakness is known to increase the risk of knee osteoarthritis, but not hip osteoarthritis. In the five years that the Veteran has had osteoarthritis of the bilateral hips there has been a slow but steady deterioration in his hip function as would be expected based on natural history of the disease, and there was no evidence of aggravation. See December 2019 VA medical opinion. The Board assigns significant probative weight to the VA examiner’s opinion, which is supported by an adequate rationale relying on the Veteran’s history and the examiner’s medical knowledge. Notably, there are no lay statements from the Veteran contradicting the examiner’s rationale. As a result, the preponderance of the evidence reflects that the Veteran’s bilateral hip disability was less likely than not due to or aggravated by his service-connected lumbar spine DDD, and service connection is not warranted. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating musculoskeletal disability, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. § 4.40. 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. 2. Entitlement to an increased rating in excess of 20 percent for lumbar spine DDD. The Veteran is currently rated pursuant to Code 5242 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 40 percent rating is warranted for flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. “Unfavorable ankylosis” is defined, in pertinent part, as “a condition in which...the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” See id., Note (5). The Board notes that the December 2019 VA examiner discussed active and passive motion in both weight-bearing and non-weight-bearing circumstances. Thus, the Board finds the examination adequate. See Correia v. McDonald, 28 Vet. App. 158 (2016). While previous VA examinations do not comply with Correia, the Board will interpret such examinations in light of the December 2019 VA examiner’s opinion. After considering the evidence of record and the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45, the Board finds that the Veteran’s symptoms more closely approximate the criteria for a 40 percent rating. Notably, the Veteran has not had forward flexion limited to 30 degrees or less; however, he is noted to have significant limitation of all other ranges of motion, see, e.g., February 2017 VA spine examination (all range of motion other than flexion limited to five degrees); December 2019 VA spine examination (extension completely limited). He is noted to be in constant pain, even when not moving his spine. See id.; August 2014 VA spine examination (resting low back pain at eight out of 10). Thus, the Veteran is warranted a rating of 40 percent for his lumbar spine DDD. In order to warrant a rating in excess of 40 percent, the competent evidence of record would need to demonstrate unfavorable ankylosis. Notably, even when considering his constant pain and the December 2019 VA examiner’s opinion regarding range of motion, there is no evidence that the Veteran is completely unable to move his spine; thus, he is not shown to have ankylosis or symptoms approximating ankylosis. Moreover, there is no evidence of any of the symptoms associated with unfavorable ankylosis, such as restricted opening of the mouth and chewing. While a January 2019 VA peripheral nerves examiner discussed that the Veteran has a limited line of vision, it is associated with left upper extremity cervical radiculopathy, and not his lumbar spine DDD; thus, it is given no probative weight. As a result, the Veteran is not entitled to a rating in excess of 40 percent. Lastly, the Board has considered whether the Veteran would be entitled to an increased rating pursuant to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), because he was noted to have IVDS. See December 2019 VA spine examination. The Formula uses rating criteria associated with incapacitating episodes to assign a rating. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. See 4.71a, IVDS Formula, Note (1). The evidence does not reflect the Veteran has had incapacitating episodes as contemplated in the IVDS Formula. See, e.g., id. Thus, the Veteran’s symptoms do not meet the criteria to be considered incapacitating episodes and the Veteran is not entitled to a higher rating pursuant to the IVDS Formula. 3. Entitlement to an increased rating in excess of 10 percent for left knee osteoarthritis. The Veteran’s left knee osteoarthritis is currently rated at 10 percent pursuant to Code 5260. Standard motion of a knee joint is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by Codes 5260 and 5261. Code 5260 concerns limitation of leg flexion. A 20 percent rating is warranted where flexion is limited to 30 degrees; and a 30 percent maximum rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Code 5260. Code 5261 pertains to limitation of leg extension. A 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating is warranted where extension is limited to 30 degrees; and a 50 percent maximum rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Code 5261. Under Code 5256, a 30 percent rating is warranted for favorable ankylosis with the knee fixed in full extension or slight flexion between zero and 10 degrees. Ankylosis of the knee fixed in flexion between 10 and 20 degrees warrants a 40 percent rating, and the knee fixed in flexion between 20 and 45 degrees warrants a 50 percent rating. A 60 percent rating, which is the maximum schedular rating, is warranted for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Code 5256. Under Code 5257, a 10 percent rating is warranted for slight subluxation or lateral instability. A 20 percent rating is warranted for moderate subluxation or lateral instability. A 30 percent maximum rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257. Under Code 5258, a 20 percent rating is warranted where there is evidence of dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, Code 5258. Symptomatic removal of semilunar cartilage warrants a 10 percent rating under Code 5259. 38 C.F.R. § 4.71a, Code 5259. Under Code 5262, malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating; moderate knee or ankle disability warrants a 20 percent rating; and marked knee or ankle disability warrants a 30 percent rating. A 40 percent maximum rating is warranted for nonunion of the tibia and fibula with loose motion that requires a brace. 38 C.F.R. § 4.71a, Code 5262. Under Code 5263, genu recurvatum (acquired or traumatic, with weakness and insecurity in weight-bearing circumstances objectively demonstrated) warrants a 10 percent maximum rating. 38 C.F.R. § 4.71a, Code 5263. When assigning a disability rating, some of the regulations preceding the rating schedule add flexibility to the listed Codes. 38 C.F.R. § 4.59 is one such regulation. In Petitti v. McDonald, 27 Vet. App. 415, 424 (2015), the Court of Appeals for Veterans Claims (Court) noted that § 4.59 explains how to arrive at proper evaluations under the Codes appearing in the disability rating schedule. The provisions of § 4.59 acknowledge that a claimant’s disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Code. Accordingly, when there is evidence of painful motion, § 4.59 operates to provide at least the minimum compensable rating available under the Code for the joint. See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). The evaluation of the same disability under several Codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A claimant who has both limitation of flexion and limitation of extension of the same leg may be rated separately under Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. VAOPGCPREC 9-2004 (2004), 69 Fed. Reg. 59,990 (Oct. 6, 2004). Additionally, a claimant who has arthritis and instability of the knee may be rated separately under Codes 5003 and 5257. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56,704 (Oct. 22, 1998); VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63,604 (Dec. 1, 1997); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Board notes that the December 2019 VA examiner discussed active and passive motion in both weight-bearing and non-weight-bearing circumstances. Thus, the Board finds the examination adequate. See Correia v. McDonald, 28 Vet. App. 158 (2016). While the previous VA examinations do not comply with Correia, the Board will interpret such examinations in light of the December 2019 VA examiner’s opinion. The Veteran reported flare-ups during only one VA examination, in August 2014. Relying on the Veteran’s report, the examiner described the flare-ups as occurring daily after walking but did not provide range of motion measurements. See August 2014 VA examination. After considering that (i) the Veteran did not describe flare-ups during four other VA examinations, (ii) he reported that his knee disability got worse rather than better after the August 2014 VA examination (thus indicating that any disability picture from later examinations is more beneficial to the Veteran when assigning a rating), see December 2018 Board hearing, (iii) that there is no other report of flare-ups in the record, and (iv) that the “flare-ups” appear to be pain related to typical functional use, the Board assigns the August 2014 characterization of the symptoms as a “flare-up” no probative weight and finds that the VA examinations are compliant with Sharp v. Shulkin, 29 Vet. App. 26 (2017), because the Veteran did not have flare-ups. However, even if the Veteran is considered to have flare-ups at the time of the August 2014 VA examination, the Board is relying solely on later VA examinations to determine the Veteran’s disability picture during the entire appeal period; thus, there is no prejudice against the Veteran in proceeding with adjudication and remand is unnecessary. The Board finds that a separate rating of 30 percent is warranted, but no higher, for left knee instability. While September 2014, February 2017, May 2019, and December 2019 VA examiners opined the Veteran did not have lateral instability, objective medical evidence is not required, nor is it meant to be favored over lay evidence. English v. Wilkie 30 Vet. App. 347 (2018). The Veteran reported multiple falls as a manifestation of his left knee disability and that he uses a cane or walker to assist with mobility. See, e.g., August 2017 VA examination. His report is corroborated by VA records reflecting numerous falls, see, e.g., April 2015 VA treatment records. He also has expressed concerns with falling during regular activities, such as when exiting a shower. See February 2018 VA treatment records. After considering the lay evidence of record, the Board finds that a separate rating of 30 percent for severe left knee instability is warranted, which is the maximum rating allowed under Code 5257. The Veteran has exhibited painful motion of the left knee during both flexion and extension. See, e.g., February 2017 VA examination. Therefore, he is at least entitled to a minimum disability rating for extension, which is 10 percent under Code 5261. A higher rating is not warranted based on limitation of motion under Codes 5260 and/or 5261 because the weight of the competent and probative evidence is against finding flexion limited to 30 degrees or less, or extension limited to 15 degrees or more. See February 2017, August 2017, May 2019, and December 2019 VA examinations. The Board has also considered whether higher ratings are warranted based on functional loss due to pain, weakness, fatigability, or incoordination. Although the evidence does show that the Veteran may experience painful motion, it does not warrant in a higher rating unless it results in additional functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Here, all VA examiners determined that there was no additional functional loss or range of motion of the Veteran’s left knee due to pain, weakness, lack of endurance, or incoordination after repetitive use. Thus, even considering additional functional loss, the Veteran’s left knee limitation of motion does not approximate limitation of flexion to 30 degrees or extension to 15 degrees, and a rating in excess of 10 percent, based on the Codes assigned, is not warranted. The Board has considered whether the Veteran would be entitled to a higher rating using other knee Codes. The record does not suggest impairment of the tibia and fibula or genu recurvatum. As such, separate disability ratings under Diagnostic Codes 5262 and 5263 are not warranted. Similarly, the record does not reflect ankylosis or symptoms approximating ankylosis. Hence, a separate rating under Code 5256 is not warranted. While the Veteran is noted to have a meniscal injury, the evidence does not reflect, nor did the Veteran report, that he has frequent episodes of joint locking. See, e.g., August 2017 VA examination. Thus, he does not meet the criteria for a compensable rating pursuant to Code 5258. Moreover, compensating the Veteran pursuant to Codes 5258 and 5259 would constitute impermissible pyramiding because the Veteran is already being expressly compensated for pain on flexion and extension, and a symptom of his meniscal injury is pain, to include pain from effusion; thus, for this Veteran, compensating him pursuant to Codes 5258 and 5259 would be pyramiding. All potentially applicable Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds the evidence of record more closely approximates the criteria for a 10 percent rating, but no higher, for both limitation of flexion and extension, and a 30 percent rating, but no higher, for instability. 4. Entitlement to an increased rating in excess of 20 percent for left lower extremity radiculopathy. The Veteran’s left lower extremity radiculopathy is rated pursuant to Code 8620, which is for neuritis of the sciatic nerve. Under Code 8620, moderate symptoms are rated at 20 percent; moderately severe symptoms are rated at 40 percent; and severe symptoms, with marked muscular atrophy, are rated at 60 percent. Finally, a maximum 80 percent rating is assigned from complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The words “moderate” and “severe” as used in the various Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. During an August 2014 VA spine examination, the Veteran was noted to have moderate constant pain, paresthesias and/or dysesthesias, and numbness. During a February 2017 VA spine examination, he was noted to have moderate intermittent pain and numbness. During a December 2019 VA spine examination, the Veteran was noted to have mild numbness. While VA treatment records reflect chronic numbness, there is little, if any, evidence as to the severity of the Veteran’s numbness; however, his numbness is shown to be constant. See, e.g., April 2015 VA treatment records. After considering the lay and medical evidence of record, the Board finds that the Veteran’s symptoms have manifested in no more than moderate severity. Notably, the Veteran’s symptoms have been described at most as moderate by the VA examiners of record, and there is no evidence of record contradicting such assessment., including VA treatment records discussing the Veteran’s constant numbness. CONTINUED ON NEXT PAGE Because the Veteran’s left lower extremity radiculopathy manifests in moderate severity, he is appropriately rated at 20 percent, and an increased rating is not warranted. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.