Citation Nr: 20021666 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 13-29 706 DATE: March 26, 2020 ORDER Entitlement to service connection for a right wrist disability is granted. Entitlement to an initial rating in excess of 10 percent for a low back disability, diagnosed as spondylolisthesis (low back disability) is denied. Entitlement to a separate rating of 10 percent for left leg radiculopathy from October 20, 2013, is granted. Entitlement to a separate rating of 10 percent for right leg radiculopathy from October 20, 2013, is granted. Entitlement to an initial rating in excess of 10 percent for right patellofemoral pain syndrome (PFPS) is denied. Entitlement to an initial rating in excess of 10 percent for left patellofemoral pain syndrome (PFPS) is denied. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, it is at least as likely as not that his right wrist disability was incurred in service, and is related to service. 2. During the appeal period, the Veteran’s low back disability has been characterized by nearly full range of motion, with pain; forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis, or incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months have not been shown. 3. Prior to October 30, 2013, the Veteran did not have established symptoms of radiculopathy, according to the evidence of record; 4. Since October 30, 2014, the Veteran’s bilateral radiculopathy has been characterized by mild symptoms; moderate symptoms have not been shown. 5. During the period on appeal, the Veteran’s PFPS as to both knees was characterized by pain and some limitation of motion; limitation of flexion to 30 degrees, limitation of extension to 15 degrees, and ankylosis have not been shown in either knee. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right wrist disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to an initial rating in excess of 10 percent for a low back disability, diagnosed as spondylolysis (low back disability) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5239. 3. A separate 10 percent rating is warranted for left leg radiculopathy, October 30, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. A separate 10 percent rating is warranted for right leg radiculopathy, October 30, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. The criteria for entitlement to an initial rating in excess of 10 percent for left patellofemoral pain syndrome (PFPS) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 6. The criteria for entitlement to an initial rating in excess of 10 percent for right patellofemoral pain syndrome (PFPS) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 2000 to February 2003, and in the Army National Guard from June 2004 to July 2004. This appeal was most recently remanded in October 2017. This remand directed the RO to readjudicate the issue of service connection for a wrist disability, accounting for the Veteran’s treatment for wrist pain in service. As for the increased rating claims, the RO was ordered to conduct further examination, in compliance with Correia and Sharp. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). While the Veteran did not report for his C&P examination scheduled for August 2019, the Board finds enough lay and medical evidence of record to adjudicate the issues on appeal based on the evidence of record. See 38 C.F.R. § 4.2. 1. Entitlement to service connection for a right wrist disability The Veteran asserts that he has had episodic right wrist pain in and after service. Specifically, he states that his current symptoms began during boot camp, after performing excessive push-ups. The Board concludes that the Veteran has a current diagnosis of arthritis that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). As an initial matter, the Board concedes the current disability element of service connection. Specifically, the Veteran’s July 2016 C&P examiner provided diagnoses of a right wrist ganglion cyst, as well as right wrist degenerative arthritis. Furthermore, the Veteran’s disability was at least as likely as not incurred in service. Symptoms of activity-induced pain are not noted on his June 2000 enlistment examination, but they appear in his service records. Specifically, an August 2001 service treatment record (STR) documents right wrist pain, that is “activity-related.” Furthermore, another August 2001 STR assesses right wrist pain of questionable etiology, and a January 2003 STR notes intermittent wrist pain in service. The Veteran’s July 2011 surgery consult note describes similar symptoms – right wrist pain, worse upon activity. While the Veteran’s July 2016 C&P examiner concluded that his right wrist symptoms were less likely related to service, the examiner’s reasoning did not account for the in-service symptoms indicated in the October 2017 Remand instructions. That is, the examiner focused on the Veteran’s pre-service distal radioulnar effusion, and post-service chondromalacia; the examination report does not account for the Veteran’s competent and credible assertions of in-service pain. Here, the Board observes that the Veteran, as a lay person, is competent to report observable symptomatology of an injury, to include pain or numbness. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Moreover, the Veteran reported that his wrist symptoms were “episodic,” though present since 2001. The examiner, in providing a negative nexus opinion, noted the Veteran’s right wrist disability from birth and explained his symptoms as manifestations of a birth defect. However, the Board finds that this explanation does not account for, and indeed does not negate the Veteran’s competent and credible reports of right wrist pain since service. The Board finds that the Veteran’s competent and credible statements of activity-induced pain in his right wrist since service place his appeal at least in equipoise. Accordingly, the Board resolves reasonable doubt in the Veteran’s favor and grant service connection for right wrist degenerative arthritis. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 2. Entitlement to an initial rating in excess of 10 percent for a low back disability, diagnosed as spondylolysis (low back disability) For the appeal period, the Veteran receives a 10 percent rating for his lumbar spine disability under 38 C.F.R. § 4.71a, DC 5239. This diagnostic code applies a general rating that is applicable for most spine disabilities. Under this rating formula, a 20 percent rating is warranted when the evidence shows: • Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; • Combined range of motion of the thoracolumbar spine not greater than 120 degrees; • Muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis; or • Intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. 38 C.F.R. § 4.71a, DCs 5237, 5239. The term “combined range of motion” refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DC 5243, Note 2. Additionally, an “incapacitating episode” is “a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, DCs 5237, 5239, Note 1. Based on the evidence of record, a rating in excess of 10 percent is not warranted. Specifically, at a VA examination dated July 2010, the Veteran reported back pain, progressively worse since 2001, and treated with NSAIDs and Flexeril as needed. Traction provided minimal relief. The Veteran also reported some occupational difficulties, such as with chores, exercise, and traveling. However, he showed a full range of active motion, albeit with pain. While the Veteran complained of spasms in his July 2011 Notice of Disagreement, the examiner competently noted that any spasm, localized tenderness, or guarding, was not severe enough to be responsible for abnormal gait or spinal contour. Indeed, while kyphosis was noted in a February 2011 record, it was diagnosed in the thoracic spine, not the lumbar spine currently on appeal. Subsequent evidence also does not indicate that a 20 percent rating or higher is warranted. Specifically, at visits from January 2013 to January 2016, the Veteran showed limited range of motion due to intermittent pain, rated as 6 to 7 out of 10. Further, an October 2013 record indicates that the Veteran “cannot bend forward” due to low back pain. However, the evidence does not show that this pain limited range of motion to 60 degrees of forward flexion, as contemplated in the DC for spine ratings. A non-VA record dated April 2016 shows pain worsening as to extent and type. Indeed, this record mentions lumbar flexion, extension, and other motions with pain. A May 2016 record also mentions shots in the low back, and a sharp stabbing pain, with soreness and tenderness. Unfortunately, however, specific ranges of motion are not available in these records. Consequently, a C&P examination was administered in July 2016. The Veteran endorsed normal ranges of motion, except for forward flexion being limited to 85 degrees. Pain was noted, but did not result in functional loss. Again, neither guarding nor muscle spasm of the thoracolumbar spine were found. At both examinations, the Veteran was found to not show either ankylosis or intervertebral disk syndrome. Accordingly, a rating in excess of 10 percent is not warranted. In this regard, it is important for the Veteran to understand that the moderate pain he has cited is the basis for the 10 percent finding. See 38 C.F.R. § 4.59. Neurological Impairment When evaluating the extent of a Veteran’s spine disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71 (a), Note 1. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. While the Veteran is currently not service connected for radiculopathy, the evidence warrants separate rating for mild bilateral neuropathy of the legs, at 10 percent, but no more, from October 30, 2013, the date radiculopathy symptoms begin to consistently appear in the medical evidence. Specifically, the Veteran called into his VA clinic on that date, complaining of sciatic nerve pain at 10 out of 10, radiating down both legs, with burning and numbness. Per a September 2015 note, this constant pain persisted and was not helped by ibuprofen or a heating pad. Only a TENS unit relieved pain, and temporarily. At a November 2015 non-VA visit, the Veteran endorsed sharp pain in the L2 area, radiating into the right and left buttocks, shooting down into the right knee and quadricep. The radiculopathy included numbness in both feet, according to two December 2015 medical records. This shooting pain, according to an April 2016 non-VA note, was intensified by moving, sleeping, sitting, standing, and bending forward. As these symptoms describe only mild symptoms, a 20 percent rating for moderate symptoms is not warranted. The Board has also considered whether the Veteran has any bowel or bladder complications. No neurological symptoms not discussed above, to include bladder or bowel dysfunction, were noted in the Veteran’s medical treatment records. 3. Entitlement to an initial rating in excess of 10 percent for right patellofemoral pain syndrome (PFPS) 4. Entitlement to an initial rating in excess of 10 percent for left patellofemoral pain syndrome (PFPS) Regarding knee claims, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257 or 5258/5259. See VAOPGCPREC 23-97. For example, when a knee disorder was already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran’s knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). In this case, however, instability has not been shown on examination; accordingly, the Veteran is only rated for limitation of motion. The Veteran’s knee disability has been rated at 10 percent for limitation of motion under 38 C.F.R. § 4.71a , DC 5261. Based on the evidence of record, the Board determines that a rating in excess of 10 percent is not warranted. The Veteran’s knee disabilities are currently assigned disability ratings of 10 percent under 38 C.F.R. §4.71a, DC 5261. In a statement dated July 2011, the Veteran cited his knee injection treatments and expressed an interest in a higher rating. Because neither ankylosis, nor subluxation, dislocated cartilage, removed cartilage, or tibia/fibula impairment or nonunion, malunion, or genu recurvatum have been shown, DCs 5256-5259 and DCs 5262-63 are not for application here. Thus, in order to warrant an increased rating based solely on limitation of motion, the evidence must show: • Limitation of flexion to 30 degrees (a separate 10 percent rating under DC 5260); or • Limitation of extension to 15 degrees (20 percent under DC 5261); See 38 C.F.R. § 4.71a. The Board determines that ratings in excess of the 10 percent already awarded are not warranted. Limitation of flexion to 30 degrees has not been shown during any examination conducted during the period on appeal. Accordingly, in order to meet the next highest schedular criteria, the Veteran would need to exhibit a limitation of extension to 15 degrees. In September 2010, the Veteran presented to his primary care provider with a grinding sensation in his right knee and bilateral knee pain. At a December 2010 visit, however, the Veteran showed 90 degrees of knee extension, full muscle strength, and only minimal crepitus in the right knee. At this visit, the Veteran mentioned locking and grinding, with pain at 9/10. By January 2011, the Veteran was wearing a right knee brace. Symptoms of pain, crepitus and impingement continued, but were not mentioned in a July 2011 note. At that visit, the Veteran complained of not being able to ride a bicycle due to pain. He described intermittently sharp knee pain, without locking or catching of the knee. However, he had full range of motion, with minimal tenderness on the right kneecap. In September 2015, the Veteran complained of sharp, burning pain on the sides of both knees. He also mentioned that his knees gave out when he tried to get out of bed several days earlier. Subsequent records describe intermittent swelling and pain, treated with injections. He also endorsed sleep impairment due to pain, requiring medication. However, through the appeal period, the Veteran could complete normal ranges of motion in flexion and extension of both knees. Indeed, at his July 2016 C&P examination, the Veteran complained of tenderness to palpation of the knees; however, flexion and extension were measured at only 10 degrees less than full range of motion. These symptoms likewise do not merit an increased rating. In considering the lumbar spine and bilateral knee ratings, the Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). In this case, while the Veteran complains of pain in his knees, any additional functional loss caused by the pain is accounted for in his range of motion measurements. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Put another way, while the Veteran has complained of pain, limitations to standing, using stairs, kneeling, and squatting, these complaints are adequately contemplated in the ratings he currently receives. In considering the appropriate disability ratings, the Board has also considered the Veteran’s statements that his disabilities are worse than the ratings he currently receives. Specifically, the Veteran reports knee pain after squatting, lifting, crawling, and bending. He also reports sleepiness due to baclofen, a pain medication. In rendering a decision on appeal, 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 evidence favorable to the claimant. 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. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his service-connected disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). In this case, the Veteran is not competent to state that his symptoms merit a higher rating for his lumbar spine or his knee disability. The competent evidence concerning the nature and extent of the Veteran’s claimed disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed each of the Veteran’s relevant symptoms related to the issue on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. In making this conclusion, the Board notes the Veteran’s contentions that back and knee pain impact his ability to perform at work. However, the Veteran has not pointed to any tangible effect of these conditions on his ability to perform any employment at all. In addition, the record does not reflect any hospitalizations for the Veteran’s disabilities on appeal. As such, these factors do not merit referral for ratings in excess of those already awarded. Lastly, a total disability rating based on individual unemployability (TDIU) is not for consideration. While the Veteran has a history of difficulty on the job due to service-connected disabilities, the Veteran does not contend, and the evidence does not show, that his service-connected disabilities render him entirely unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Because the Board finds credible and competent statements of right wrist symptoms since service, the Board grants service connection for right wrist arthritis. In addition, the Board finds sufficient evidence to grant separate ratings for radiculopathy in both legs. However, because the Veteran’s back and bilateral knee ranges of motion and associated symptoms do not fall into the ranges for 20 percent ratings, ratings in excess of 10 percent are not warranted for any of these disabilities. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia