Citation Nr: 20021571 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-03 852 DATE: March 26, 2020 ORDER Entitlement to a rating in excess of 10 percent for right knee tendonitis with degenerative changes is denied. Entitlement to a rating in excess of 10 percent for left knee tendonitis with degenerative changes is denied. Entitlement to a rating in excess of 10 percent for degenerative changes of the thoracic spine is denied. REMANDED Entitlement to a compensable rating for bilateral hearing loss prior to July 14, 2015 and in excess of 30 percent thereafter is remanded. FINDINGS OF FACT 1. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran’s right knee disability has not manifested flexion to 30 degrees, extension to 15 degrees, or dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; moreover, the weight of the evidence is against a finding of lateral instability. 2. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran’s left knee disability has not manifested flexion to 30 degrees, extension to 15 degrees, or dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; moreover, the weight of the evidence is against a finding of lateral instability. 3. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran’s back disability has not manifested forward flexion to 60 degrees; or combined range of 120 degrees or less; or severe muscle spasm or guarding. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee tendonitis with degenerative changes are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5257, 5258, 5260, 5261. 2. The criteria for a rating in excess of 10 percent for left knee tendonitis with degenerative changes are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5257, 5258, 5260, 5261. 3. The criteria for a rating in excess of 10 percent for degenerative changes of the thoracic spine are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Coast Guard from February 1981 to February 2001. The appeal originates from an August 2014 decision of a Department of Veterans Affairs (VA) Regional Office. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Pain in a particular joint 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.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. 1. Entitlement to ratings in excess of 10 percent for right and left knee tendonitis with degenerative changes. The Veteran is service-connected for right and left knee disabilities assigned 10 percent ratings pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260, which pertains to limitation of flexion of the leg. Under Diagnostic Code 5260, a 30 percent rating requires flexion limited to 15 degrees, while a 20 percent rating requires flexion limited to 30 degrees. The Board additionally notes that degenerative arthritis has been documented in both knees, as most recently reflected in the April 2019 VA knee examination. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent rating requires X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Diagnostic Code 5257 addresses other impairment of the knee. A 30 percent rating requires severe recurrent subluxation or lateral instability of the knee. A 20 percent rating requires moderate recurrent subluxation or lateral instability of the knee. A 10 percent rating requires slight recurrent subluxation or lateral instability. Diagnostic Code 5258 assigns a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5261 addresses limitation of extension of the leg. A 50 percent rating requires extension limited to 45 degrees. A 40 percent rating requires extension limited to 30 degrees. A 30 percent rating requires extension limited to 20 degrees. A 20 percent rating requires extension limited to 15 degrees. The Board has considered additional diagnostic codes pertinent to the evaluation of knee disabilities in order to determine the highest possible evaluation for the right and left knee disabilities during the entire period of the appeal. However, in considering the applicability of those diagnostic codes, the Board finds that Diagnostic Codes 5256 (ankylosis of the knee), 5258 (dislocated semilunar cartilage), 5259 (symptomatic removal of semilunar cartilage) and 5263 (genu recurvatum) are not applicable in this instance as the medical evidence does not show that the Veteran experiences these conditions. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5259, 5263. Based on the evidence, including the April 2014 and April 2019 VA examinations, the Veteran is not entitled to ratings in excess of 10 percent for his right and left knee disabilities. The Veteran has had full flexion and extension based on an extensive variety of range of motion testing, including active motion, passive motion, and repetitive use. Such does not nearly approximate the degree of limited motion required for a higher rating under Diagnostic Codes 5260 and 5261. Though he has reported locking, the April 2014 and April 2019 examiners specifically found that the Veteran did not have a meniscal condition, thereby precluding an increased rating under Diagnostic Code 5258. See January 2018 Form 9. In addition, the Board highlights that a noncompensable level of limitation of motion in the presence of X-ray findings of arthritis in the knee warrants no higher than a 10 percent rating under Diagnostic Code 5003. The Board acknowledges the Veteran’s competent and credible report of experiencing knee instability. See January 2018 Form 9. Whereas his complaint is generalized, the April 2014 and April 2019 examiners found no instability and objective testing at the examinations showed no lateral instability. The examinations were completed by medical professionals who formulated their conclusions based on a physical examination, review of the record, and interview of the Veteran. The Board has no basis to contradict the conclusions made by the examiners. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Thus, the Veteran’s lay reports have been considered as evidence with respect to knee instability but are outweighed by significant objective evidence indicating no such instability. The Court of Appeals for Veterans Claims has established that reports of flare-ups of symptomatology must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flareups has not been particularly clear. However, the Board finds overall wisdom in Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Flareups must be quantifiable and result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flareup must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. With that in mind, consideration has been given to the Veteran’s report at the April 2019 examination of experiencing flareups. The examiner reviewed the record, considered the examination findings and the Veteran’s subjective complaints, and applied clinical knowledge and medical expertise in determining that there was no rational basis to estimate additional limitation of motion during a knee flareup. The contemporaneous treatment records contain little, if any, findings pertaining to flareups much less information regarding the Veteran’s functional ability during a flareup or after repeated use over time. Therefore, the Board finds that the currently assigned 10 percent ratings adequately contemplate the documented and reported functional limitation stemming from the right and left knee disabilities. Mitchell, supra. 2. Entitlement to a rating in excess of 10 percent for degenerative changes of the thoracic spine. The Veteran is currently in receipt of a 10 percent rating for degenerative changes of the thoracic spine. His back disability is rated under Diagnostic Code 5010 for traumatic arthritis, which in turn is rated as degenerative arthritis under Diagnostic Code 5003. As stated above, degenerative arthritis under Diagnostic Code 5003 is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. To that end, under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 100 percent rating requires unfavorable ankylosis of the entire spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating requires forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Based on the evidence, including the April 2014 and April 2019 VA examinations, the Veteran is not entitled to a rating in excess of 10 percent for his back disability. An extensive variety of range of motion testing, including active motion and repetitive use, has shown no limitation of motion of the back. The examiners found that the Veteran has not had muscle spasm or guarding. Such precludes an increased rating under the General Rating Formula for the Spine. In addition, a noncompensable level of limitation of motion in the presence of X-ray findings of arthritis in the back warrants no higher than a 10 percent rating under Diagnostic Code 5003. There is simply no basis for an increased rating under any relevant diagnostic code. The Board has considered whether a higher rating for the Veteran’s knee and back disabilities is appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59, and concluded that such is not warranted. Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. Mitchell, supra. The examiners accounted for pain in the range of motion testing. Indeed, the presently assigned ratings for the right and left knees were based on the Veteran’s report of painful motion. See August 2014 Rating Decision. There was no objective evidence of painful motion of the back at the April 2014 examination, and any documented pain was not found to result in functional loss on the April 2019 examination. As to the lay statements describing pain and similar complaints, the evidence does not demonstrate additional functional limitation more closely approximating the criteria for a higher rating. Consideration is given to arguments presented by the Veteran. In the January 2018 Form 9 and August 2019 correspondence, he challenges the adequacy of the examinations, contending that the April 2014 examiner was unqualified and that imaging has not been conducted. The April 2014 examiner, a physician, provided detailed findings concerning his disabilities, and he fails to identify any specific deficiencies in them. With respect to imaging, the record contains imaging results which were specifically discussed and considered in the April 2019 examination reports. The Board has also considered these results in determining that an increased rating is not warranted for the Veteran’s disabilities as discussed above. Additionally, there is no indication that the Veteran has endorsed experiencing flare-ups of additional pain during the pendency of the examination, and so the Board expressly finds that an increased rating on the basis of flare-ups of more severe symptomatology is not warranted. Mitchell, supra. REASONS FOR REMAND Entitlement to a rating in excess of 30 percent for bilateral hearing loss is remanded. In April 2019, VA requested to schedule the Veteran for a new audiological examination. The request was cancelled shortly thereafter at the Veteran’s request. VA called him multiple times to reschedule the examination without success. See June 2019 VA 21-0820. In the August 2019 correspondence, the Veteran clarified that he cancelled the examination to be seen at a location closer to his home and that he did not know to call back to reschedule. Granting him the benefit of the doubt, the Veteran should be rescheduled for the examination to evaluate the current severity of his bilateral hearing loss. The matter is REMANDED for the following action: Contact the Veteran to reschedule his audiology examination and ensure that he receives proper notification of the appointment. C. M. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alhinnawi 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.