Citation Nr: 20022057 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 15-00 797 DATE: March 30, 2020 ORDER 1. A rating in excess of 20 percent for lumbar spine degenerative joint disease (DJD) is denied. 2. A rating in excess of 10 percent for right knee chondromalacia is denied. 3. A rating in excess of 10 percent for left knee patellofemoral pain syndrome with chondromalacia is denied.   FINDINGS OF FACT 1. The Veteran’s lumbar spine disability has not manifested by forward flexion limited to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least 4 weeks during the past 12 months. 2. The Veteran’s right knee disability is manifested by pain on motion, limitation of motion, and crepitus. 3. The Veteran’s left knee disability is manifested by pain on motion, limitation of motion, and crepitus. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for the Veteran’s lumbar spine disability have not been not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5024. 3. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5024. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1979 to January 2005. The case is on appeal from a November 2011 rating decision. In March 2015, the Veteran testified at a Board hearing. In a May 2018 decision, the Board dismissed increased rating claims for bilateral wrist and left ankle disabilities, and remanded the claims decided herein for additional development. The Board has limited the discussion below to the relevant evidence required to support its findings 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 Ratings General Legal Criteria 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. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or 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 which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 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. 1. A rating in excess of 20 percent for lumbar spine DJD. Specific Legal Criteria The Veteran’s low back disability is rated under DC 5242, which is rated according to The General Rating Formula for evaluating the spine. 38 C.F.R. § 4.71a. The General Rating Formula provides for a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Following the rating criteria, Note 1 states: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Analysis The Veteran is seeking a higher rating for his service-connected lumbar spine condition. During the March 2015 Board hearing, the Veteran’s representative stated that compensation examiners’ range of motion measurements generally do not assess ranges of motion in degrees using goniometers or capture the true range of motion resulting from painful motion and flareups. The Veteran’s VA treatment records include a physical therapy record from December 2010. The physical therapist reported that the Veteran’s lumbar spine had good movement in all planes, but soreness was present on returning from fully flexed to upright. He also noted that the Veteran’s lumbar spine was tender to palpation. The Veteran was afforded an examination in regard to this claim in July 2011. The Veteran reported experiencing lumbar spine pain with an average intensity of 6 out of 10 and increasing to 10 out of 10 with physical activity. He reported being able to sit for 15 minutes comfortably and walk one half mile. The examiner indicated lumbar spine forward flexion to 60 degrees and extension to 14 degrees. He also indicated lumbar spine right lateral rotation to 27 degrees, left lateral rotation to 26 degrees, right lateral flexion to 30 degrees, and left lateral rotation to 29 degrees. He reported the presence of pain on right and left lateral rotation and tenderness on palpation of the joint. The examiner denied additional loss of range of motion on 3 repetitions of testing. Thereafter, the Veteran was afforded another examination in regard to this claim in July 2014. The Veteran reported experiencing chronic back pain that is worsening. He also reported experiencing back flareups 3 or 4 times per year. The examiner reported ranges of motion of 90 degrees forward flexion, 30 degrees extension, 30 degrees right and left lateral flexion, and 30 degrees right and left lateral rotation. The examiner denied objective evidence of pain on motion or changes in range of motion testing on 3 repetitions. She also denied the presence of pain to palpation, muscle spasm causing abnormal gait or spinal contour, guarding, IVDS, and ankylosis. The examiner found that she could not estimate the Veteran’s range of motion during flareups without resorting to mere speculation. She explained that the limitation of range of motion likely varies somewhat from day to day depending upon the types of activities performed, the repetitions the joint is put through, whether or not the Veteran takes medication for the condition, and possibly even atmospheric conditions, among other factors. Thereafter, pursuant to the May 2018 Board remand, the Veteran was afforded another VA examination in August 2019. The Veteran reported that his lumbar spine condition has worsened since the prior VA examination, with increased pain severity and frequency. He also reported flareups of increased pain due to walking and sitting. He further reported functional loss of limitation of physical and sedentary activity with acute exacerbations of his lumbar spine disability. The examiner reported ranges of motion of 50 degrees forward flexion, 15 degrees extension, 15 degrees right and left lateral flexion, and 30 degrees right and left lateral rotation. He also reported the presence of pain on palpation, on passive range of motion, with weight-bearing, and with nonweight-bearing. The examiner denied changes in range of motion testing on 3 repetitions. The examiner further reported that the Veteran is unable to perform range of motion testing over time due to the onset of pain. He reported the presence of muscle spasm causing abnormal gait or spinal contour and guarding resulting in abnormal gait or spinal contour. The examiner also reported the presence of IVDS without prescribed bed rest in the prior 12 months. The examiner found that the examination was consistent with the Veteran’s statements regarding flareups resulting in pain, fatigue, weakness, and lack of endurance and that he would most likely have further loss of range of motion. However, he could not estimate ranges of motion during flareups without resorting to mere speculation. He explained that the ranges of motion would vary based on several factors and that there is no scientific research available to provide a basis for calculating the additional range of motion lost. The Board finds that a rating in excess of 20 percent for the Veteran’s low back disability is not warranted. In this regard, the evidence of record does not show that he experienced forward flexion of the thoracolumbar spine of 30 degrees or less, ankylosis of the entire thoracolumbar spine, or incapacitating episodes of IVDS during the period on appeal. While the Veteran has consistently reported experiencing pain due to his low back disability and the examiners found functional impairment due to this disability, such impairment is contemplated by the 20 percent rating already assigned for this disability during the period on appeal. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5237; DeLuca, 8 Vet. App. at 202. The Board notes that the Veteran has reported experiencing flareups of increased pain. During the July 2014 examination, he reported experiencing flareups 3 or 4 times per year. Given the limited number of flareups per year reported at that time, the evidence of record does not indicate that the flareups approximated functional impairment at the next rating level. In this regard, by way of analogy, the duration of the flareups reported by the Veteran during the July 2014 examination would not approximate impairment at the 40 percent level for increased episodic severity under the IVDS rating formula as their total duration would not result in the need for bedrest for 4 weeks or longer over a 12 month period. Furthermore, during the August 2019 examination, the Veteran did not indicate the frequency, duration, or the extent of range of motion lost during flareups. Ultimately, the Veteran bears the evidentiary burden to establish all material elements of a claim. See 38 U.S.C. § 5107(a). In this case, flareups were not reported during the July 2011 examination and the July 2014 and August 2019 examiners explained that any additional loss of range of motion during flareups cannot be estimated without resorting to speculation. In addition, the Veteran has not reported or provided medical evidence showing that his range of motion is limited to 30 degrees flexion or less or IVDS requiring prescribed bedrest during flareups. While the evidence indicates lumbar spine pain, fatigue, weakness, and lack of endurance as a result of flareups, these symptoms are already compensated by the assigned rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5237; DeLuca, 8 Vet. App. at 202. Therefore, the evidence is not at least in equipoise as to whether the Veteran’s lumbar spine symptoms during flareups are of a severity supportive of a rating in excess of 20 percent. See Ortiz v. Principi, 274 F.3d 1361, 1364 (2001). The Board notes that the Veteran’s representative stated that examiners generally do not adequately assess veterans’ ranges of motion during testing. However, in the absence of a specific allegation outlining why a specific examiner is not competent to conduct a medical examination or provide a medical opinion, the VA examiners’ testing in this case is found to be correct and sufficient for deciding the claim. The Board also notes that, in an August 2019 rating decision, the Veteran was granted service connection for right and left lower extremity radiculopathy effective August 20, 2019 secondary to his lumbar spine disability. The evidence of record does not indicate the presence of any additional objective neurologic abnormalities for which a separate rating is warranted. In sum, the preponderance of the evidence shows that the Veteran’s lumbar spine disability has not manifested by forward flexion limited to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of IVDS. Therefore, there is no doubt to be resolved, and a rating in excess of 20 percent for his lumbar spine is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. A rating in excess of 10 percent for right knee chondromalacia. 3. A rating in excess of 10 percent for left knee patellofemoral pain syndrome with chondromalacia. Specific Legal Criteria The Veteran’s bilateral knee disabilities are rated under DC 5024. DC 5024 is rated according to limitation of motion of the affected body parts, except gout which is rated under DC 5002. 38 C.F.R. § 4.71a, DC 5024. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, DCs 5260 and 5261. DC 5260 provides for a noncompensable rating for limitation of flexion limited to 60 degrees; a 10 percent rating is warranted for limitation of flexion limited to 45 degrees; a 20 percent rating is warranted for limitation of flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Ratings for limitation of extension of the knee are under 38 C.F.R. § 4.71a, DC 5261. DC 5261 provides for a noncompensable rating for limitation of extension limited to 5 degrees; a 10 percent rating is warranted for limitation of extension limited to 10 degrees; a 20 percent rating is warranted for limitation of extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. In addition, knee instability is separately rated under DC 5257. A 10 percent rating is warranted for either slight recurrent subluxation or slight lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or moderate lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or severe lateral instability. 38 C.F.R. § 4.71a, DC 5257. VA’s General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a, DC 5257 and an appellant also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, DCs 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that if an appellant does not meet the criteria for a noncompensable rating under either DC 5260 or DC 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, DC 5257), a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98. In addition, DCs 5258 and 5259 are potentially applicable to rating knee disabilities. DC 5258 provides for a 20 percent evaluation for semilunar, dislocated cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. DC 5259 provides for a 10 percent rating for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259. Analysis The Veteran contends that he should have higher ratings for his service-connected knee disabilities. During the March 2015 Board hearing, the Veteran reported that he experiences bilateral knee pain when walking, using stairs, and stepping down from curbs. As noted above, the Veteran’s representative stated that compensation examiners’ range of motion measurements generally do not assess ranges of motion in degrees using goniometers or capture the true range of motion resulting from painful motion and flareups. The Veteran was afforded an examination in regard to these claims in July 2011. The Veteran reported knee pain 6 out of 10 in severity and being unable to sit for more than 30 to 45 minutes without being forced to stretch out his knees or change positions. He also reported knee pain with climbing stairs. The examiner reported bilateral knee range of motion from zero degrees to 130 degrees with pain beginning at 95 degrees and no additional pain on 3 repetitions of testing. The examiner reported the presence of palpable crepitation. The examiner denied the presence of pain on palpation and found his patella holding apparatus stable. Thereafter, in July 2014, the Veteran was afforded a VA examination in regard to these claims. The Veteran reported experiencing bilateral knee pain, with his left knee pain more severe. He also reported undergoing physical therapy for his knees and experiencing flareups of more severe symptoms at times. The examiner reported right knee range of motion from zero degrees to 140 degrees without objective evidence of pain on motion. The examiner reported left knee range of motion from zero degrees to 140 degrees with objective evidence of pain on motion starting at 140 degrees. She found no change in range of motion on 3 repetitions of testing. The examiner reported pain on movement and on palpation for the left knee, but not the right knee. She also reported normal muscle strength and denied the presence of recurrent patellar subluxation or dislocation, instability, meniscal conditions, scars, and the use of assistive devices. The examiner found that she could not estimate the Veteran’s range of motion during flareups without resorting to mere speculation. The examiner explained that the limitation of range of motion likely varies somewhat from day to day depending upon, but not limited to, the types of activities performed, the repetitions the joint is put through, whether or not the Veteran takes medication for the condition, and possibly even atmospheric conditions, among other factors. Thereafter, pursuant to the May 2018 Board remand, the Veteran was afforded another VA examination in August 2019. The Veteran reported that his knee conditions had worsened since the prior examination with increased pain severity and frequency and functional impairment of limited physical and sedentary activity with acute exacerbations. He also reported experiencing flareups of symptoms with walking. The examiner reported right knee range of motion from zero degrees to 95 degrees with pain that does not result in functional loss. He also reported left knee range of motion from zero degrees to 105 degrees with pain that does not result in functional loss. The examiner found bilateral knee pain with palpation, on passive range of motion, and on weight-bearing and on nonweight-bearing. He also found objective evidence of crepitus. He reported that the Veteran is unable to perform range of motion testing over time due to the onset of pain. The examiner also reported normal muscle strength and denied the presence of recurrent patellar subluxation or dislocation, instability, meniscal conditions, scars, and the use of assistive devices. The examiner found that the examination was consistent with the Veteran’s statements regarding flareups and result in pain, fatigue, weakness, and lack of endurance. However, he could not estimate the Veteran’s range of motion during flareups due without resorting to mere speculation. The examiner explained that the range of motion would vary based on several factors and that there is no scientific research available to provide a basis for calculating the additional range of motion lost. The Board finds that an initial rating in excess of 10 percent for the Veteran’s right or left knee disability is not warranted. In this regard, the Veteran’s currently assigned ratings account for his symptoms of pain, limitation of motion, and crepitus. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a; DeLuca, 8 Vet. App. at 202. The Board also considered whether a higher rating is available under DC 5260 or 5261 for these disabilities. However, the examinations of record do not show that the Veteran has experienced right knee range of motion less than zero to 95 degrees in his right knee or less than zero to 105 degrees in his left knee, even during flareups or on 3 repetitions of testing. The Board notes that the Veteran has reported experiencing flareups bilaterally of increased knee pain. Ultimately, the Veteran bears the evidentiary burden to establish all material elements of a claim. See 38 U.S.C. § 5107(a). In this case, flareups were not reported during the July 2011 examination and the July 2014 and August 2019 examiners explained that any additional loss of range of motion during flareups cannot be estimated without resorting to speculation. In addition, the Veteran has not reported or provided medical evidence showing that he experiences additional reduction of range of motion during flareups supportive of increased or separate ratings under DC 5260 or DC 5261. While the Veteran reported increased knee pain as a result of flareups resulting in pain, fatigue, weakness, and lack of endurance, these symptoms are already compensated by the assigned ratings. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a; DeLuca, 8 Vet. App. at 202. Therefore, the evidence is not at least in equipoise as to whether the Veteran’s right or left knee symptoms during flareups are of a severity indicative of a rating in excess of 10 percent. See Ortiz, 274 F.3d at 1364. In addition, the Board also considered whether the Veteran is entitled to separate ratings under DCs 5258 and 5259 for dislocated or removed cartilage. While the Veteran experiences crepitus, the evidence of record shows the he has not been treated for or diagnosed with a semilunar cartilage/meniscus condition in either knee. 38 C.F.R. § 4.71a, DCs 5258, 5259. Furthermore, the Board considered if compensable ratings for knee instability is warranted. However, while medical evidence is not categorically required, the Veteran has not reported the presence of instability. Furthermore, the examiners denied the presence of instability during testing and the use of assistive devices. Thus, the Board does not find that a separate rating for right knee instability is not warranted. The Board notes that the Veteran’s representative stated that examiners generally do not adequately assess veterans’ ranges of motion during testing. However, in the absence of a specific allegation outlining why a specific examiner is not competent to conduct a medical examination or provide a medical opinion, the VA examiners’ testing in this case is found to be correct and sufficient for deciding the claims. In sum, the preponderance of the evidence shows that the Veteran’s right and left knee disabilities are manifested by pain on motion, limitation of motion, and crepitus without symptoms indicative of higher ratings or separately assigned ratings. Therefore, there is no doubt to be resolved, and ratings in excess of 10 percent for the Veteran’s right and left knee disabilities are not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Jimerfield 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.