Citation Nr: 20030158 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 09-43 926 DATE: April 29, 2020 ORDER Entitlement to a rating in excess of 10 percent for a low back disability prior to February 11, 2015, is denied Entitlement to a rating in excess of 20 percent for the low back disability since February 11, 2015, is denied. Entitlement to a compensable rating for right knee arthritis prior to March 31, 2009, is denied. Entitlement to a rating higher than 10 percent for the right knee arthritis since March 31, 2009 is denied. A separate 20 percent rating, but no higher, is granted throughout for dislocated semilunar cartilage of the right knee, subject to the statutes and regulations governing payment of monetary awards. A separate 20 percent rating, but no higher, is granted throughout for dislocated semilunar cartilage of the left knee, subject to the statutes and regulations governing payment of monetary awards. REMANDED Entitlement to a separate compensable rating for a neurological disability manifested by bladder or bowel impairment secondary to the low back disability is remanded. FINDINGS OF FACT 1. Prior to February 11, 2015, the Veteran’s low back disability did not result in limitation of forward flexion greater than 30 degrees but not greater than 60 degrees, or combined range of motion 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. 2. Since February 11, 2015, his low back disability has not resulted in limitation of forward flexion to at least 30 degrees or less, ankylosis, or incapacitating episodes due to intervertebral disc syndrome (IVDS). 3. Prior to March 31, 2009, his right knee disability was not manifested by ankylosis, instability, subluxation, impairment of the tibia and fibula, or genu recurvatum; flexion and extension also were not limited to a compensable degree. 4. Since March 31, 2009, his right knee disability is shown to be characterized by pain, but still without ankylosis, recurrent subluxation, impairment of the tibia and fibula, or genu recurvatum; flexion has not been limited to 30 degrees or less and extension has not been limited to 15 degrees or more to warrant the next higher rating. 5. Throughout the entire period on appeal, his right and left knee disabilities have been manifested by painful, limited motion, with stiffness, crepitation, and frequent episodes of locking and joint effusion.   6. His left knee disability is shown to be characterized by pain, but without ankylosis, recurrent subluxation, impairment of the tibia and fibula, or genu recurvatum; flexion is not limited to 30 degrees or less and extension is not limited to 15 degrees or more to warrant the next higher rating. CONCLUSIONS OF LAW 1. A rating higher than 10 percent for the Veteran’s low back disability prior to February 11, 2015, is not warranted. 38U.S.C. §§ 1155,5107; 38C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Codes (Codes/DCs)5235-5242. 2. A rating higher than 20 percent for the Veteran’s low back disability since February 11, 2015, is not warranted. 38U.S.C. §§ 1155, 5107; 38C.F.R. §§ 4.1, 4.3, 4.71a, Codes 5235-52423. 3. A compensable rating for the right knee disability prior to March 31, 2009, is not warranted. 38U.S.C.§§1155, 5107; 38C.F.R.§§4.1, 4.3, 4.71a, Codes 5256-5263. 4. A rating in excess of 10 percent for the right knee disability since March 31, 2009, is not warranted. 38U.S.C. §§ 1155, 5107; 38C.F.R. §§ 4.1, 4.3, 4.71a, Codes 5256-5263. 5. However, the criteria are met for separate 20 percent ratings for the Veteran’s right and left knee disabilities throughout the period under consideration owing to dislocated semilunar cartilage. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.59, 4.71a, Code 5258. 6. A rating in excess of 10 percent for his left knee disability is not warranted. 38U.S.C.§§ 1155, 5107; 38C.F.R.§§ 4.1, 4.3, 4.71a, Codes 5256-5263.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty (AD) from June 1987 to April 1991 and had additional service on active duty for training (ACDUTRA). These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, a Travel Board hearing was held before the undersigned judge; a transcript of the proceeding is of record. In October 2018, the Board issued a decision denying the Veteran’s claims for increased ratings for his low back and right and left knee disabilities. He appealed that decision to the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC). In October 2019, pursuant to a Joint Motion for Remand (JMR), the parties agreed that a vacatur of the Board’s decision and remand of the claims were warranted because the Board had erred by failing to provide an adequate statement of reasons or bases in denying the claims. Increased Ratings 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. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. But where service connection already has been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, “staged” evaluations may be assigned irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) Hart v. Mansfield, 21 Vet. App. 505 (2007). 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; otherwise, the lower rating is assigned. 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 instead 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 deciding this appeal, the Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the Board discuss every piece of evidence in the record. The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000). 1. Entitlement to a rating in excess of 10 percent for the low back disability prior to February 11, 2015, is denied. 2. Entitlement to a rating in excess of 20 percent for the low back disability since February 11, 2015, is denied. The criteria for rating spine disabilities are found at 38 C.F.R. § 4.71a, Codes 5235 to 5243. Under the General Formula for Diseases and Injuries of the Spine, the following ratings apply: a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, with 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 rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Codes 5235-42, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, normal extension is from zero to 30 degrees, normal left and right lateral flexion is from zero to 30 degrees, and normal left and right lateral rotation is from zero to 30 degrees. 38 C.F.R. § 4.71a, Codes 5235-42, Note (2). So normal combined range of motion is 270 degrees. All measured ranges of motion are to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Codes 5235-42, Note (4). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Codes 5235-42, Note (5). Under the Formula for Rating IVDS Based on Incapacitating Episodes, the following ratings apply: a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks per year. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks per year. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks but less than twelve weeks per year. An “incapacitating episode” is defined as “a period of acute signs and symptoms due to [IVDS] that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, Code 5243, Note (1). At the outset, the evidence of record indicates that the Veteran is not entitled to an increased rating for incapacitating episodes (i.e., doctor-prescribed bedrest) during the period on appeal as there is no evidence of incapacitating episodes having a total duration of at least two weeks. Absent some clinical (objective) documentation of bedrest prescribed by a physician or other healthcare provider for at least two weeks, see Code 5243, the Board cannot assign a higher rating during the period on appeal using the criteria described in the IVDS ratings. Prior to February 11, 2015 On April 2008 VA joints examination, the Veteran complained of stiffness with decreased range of motion and radiation into the left leg to the foot and radiation in the right leg. He denied any bladder or bowel dysfunction, but complained of aggravated symptoms with driving and sitting for prolonged periods of time. On physical examination, forward flexion was to 85 degrees, extension to 25 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 45 degrees. There was no pain associated with range of motion with gravity, and against resistance. Repetitive testing did not reveal any pain, fatigue, weakness, lack of endurance, or incoordination. There was no scoliosis or kyphosis. On July 2009 VA joints examination, the Veteran reported progressive back pain with stiffness and decreased motion. He complained of occasional radiation to the left knee and distal thigh with constant burning, radiation to the left lower extremity, and numbness in the left foot. On physical examination, his gait was normal and there was no need for assistive devices. Flexion was to 80 degrees, extension to 15degrees, right and left lateral flexion and rotation each to 20 degrees. Repetitive use testing revealed no additional loss of function/range of motion. The examiner opined that the Veteran’s level of disability was unchanged and considered to be mild. On August 2013 VA back examination, the Veteran reported stabbing pain in his back and some “lightning pain pins and needle” down his left leg. There was no electrodiagnostic evidence of lower extremity peripheral neuropathy, lower extremity radiculopathy, or right or left median neuropathy. He denied any flare-ups that impact the function of his back. On examination, flexion was to 65 degrees and extension to 30 degrees, with no objective evidence of painful motion. Right lateral flexion was to 25 degrees; left lateral flexion, and right and left lateral rotation were each to 30 degrees, with no evidence of pain. He was able to perform repetitive use testing with no additional loss of function/range of motion. No guarding or muscle spasms were noted. Muscle strength, reflex, and sensory exams were normal. Straight leg raising test was negative. There was no radicular pain or any other signs or symptoms due to radiculopathy, and no other neurological abnormalities were noted. The Veteran did not have IVDS. He regularly used a cane as an assistive device. Based on the foregoing, the Board finds that, prior to February 11, 2015, a rating in excess of 10 percent for a back disability is not warranted. The Board has carefully reviewed the medical opinions and finds the VA examiners’ opinions to be highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The VA examinations were thorough and adequate and provided a sound basis upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiners considered the relevant history, solicited information regarding the Veteran’s activities, performed physical examinations, and provided rationales to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Thus, the more probative medical opinion weighs against an increase as there is no evidence of 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, such as scoliosis, reversed lordosis, or abnormal kyphosis.   From February 11, 2015 A February11, 2015 VA treatment records revealed flexion to 40 degrees with sharp pain; extension to 25 degrees; left and right lateral flexion to 30 degrees, with sharp pain on left lateral flexion; and left and right lateral rotation to 25 degrees, with sharp pain on left rotation. On May 2015 VA back examination, the Veteran reported numbness and tingling radiating down his legs. He denied that flare-ups impact the function of his back. Range of motion testing revealed flexion to 30 and extension to 5 degrees, each with pain; right and left lateral flexion and rotation were each to 10 degrees, with pain. Although the Veteran could perform repetitive use testing with no additional limitation of motion, functional loss included less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing. Mild pain on palpation caused wincing and guarding, and muscle spasm of the back was noted. Muscle strength testing was normal, with no evidence of muscle atrophy. His reflex examination revealed hypoactive reflexes with decreased sensation in the bilateral anterior thigh, lower leg/ankle, and foot/toes. The straight leg raising test was positive and radiculopathy was noted. No other neurologic abnormalities were noted. IVDS was diagnosed, with incapacitating episodes lasting at least one week but less than two weeks. The Veteran regularly used a cane for assistance when walking. On July 2015 VA back examination, the Veteran reported that his back hurts “every minute.” Range of motion testing revealed forward flexion to 50 degrees, extension and right and left lateral flexion to 30 degrees, and right and left lateral rotation to five degrees. Functional loss included difficulty picking things up and bending. There was no pain with weight-bearing but there was moderate tenderness to palpation of the lower back. Repetitive use testing did not result in additional loss of function or range of motion. There was no guarding or muscle spasm of the back. Additional factors contributing to the back disability included less movement than normal due to ankylosis, adhesions, etc., and interference with sitting and standing. Muscle strength testing was normal in all flexion and extension, except for bilateral knee extension, which showed active movement against some resistance. Reflex and sensory exams were normal.   Radiculopathy was noted in the left lower extremities; no other neurologic abnormalities were noted. IVDS was diagnosed, but the Veteran did not have any episodes that required bed rest. The Veteran regularly used a cane. [The Board notes here that a November 2015 rating decision granted service connection for left leg radiculopathy, rated 10 percent disabling, effective July 2, 2015. Based on later findings that the Veteran’s radiculopathy was not related to his service-connected back disability, the RO subsequently severed service connection for such in a July 2017 rating decision, effective October1, 2017. He has not appealed that rating decision and, as discussed further, there is no evidence of radiculopathy related to the Veteran’s service-connected back disability from that date.] During July 2016 VA treatment, intermittent paresthesias in the lower extremities and lower extremity weakness were noted. The Veteran reported a history of loss of bowel and bladder control, but none currently. He had limited trunk flexion and his gait was guarded and rigid. During January and July 2017 VA treatment, the Veteran’s range of motion testing revealed flexion to 70 degrees with pain, and extension 10 to 20 degrees. On January 2018 VA back examination, the Veteran reported symptoms including sharp, needle-like pain radiating to the left leg, numbness in his lower back and legs, heating pain, and muscle spasms. Flare-ups included muscle spasms and sharp shooting pains. Functional impairments included difficulty controlling bowels, limited range of motion, inability to sit or stand for long periods of time, and difficulty driving. Range of motion testing revealed forward flexion to 75 degrees and extension and right and left lateral flexion and rotation to 30 degrees each. Pain was noted but did not result in or cause functional loss. There was no pain on weight-bearing or non-weight bearing, no objective evidence of localized tenderness or pain on palpation, and no evidence of pain on passive range of motion testing. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. Pain significantly limited functional ability with repeated use over time while pain and fatigue limited functional ability with flare-ups; neither, however, resulted in additional loss of range of motion. Muscle spasms resulted in abnormal gait/spinal contour. Muscle strength testing was normal except concerning knee extension (which was active against some resistance). Reflex and sensory exams were normal, and the straight leg test was negative. Radiculopathy was not noted, and the Veteran had no other neurologic abnormalities. IVDS was not diagnosed. The Veteran reported occasional use of a cane for back and knee support. Based on the evidence of record, the Board finds that a rating in excess of 20 percent for a back disability from February 11, 2015, is not warranted. Although the May 2015 VA back examination showed flexion limited to 30 degrees, a February 2015 VA treatment record showed flexion to 40 degrees and a July2015 VA back examination (so, two months later), revealed flexion to 50 degrees. Additionally, in June 2016, flexion was limited to 70 degrees. In light of the foregoing, the Board finds that the evidence as a whole does not more nearly approximate a rating of 40 percent. Based on the evidence, the Board finds that the current 20 percent evaluation from February 11, 2015, adequately portrays any functional impairment, pain, and limitation of motion that the Veteran experienced due to his back disability. Id. Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s disability picture more nearly approximates a rating in excess of 20 percent from February 11, 2015. The Board has also considered whether separate, compensable, ratings are warranted based on neurological manifestations. Note (1) of the General Rating provides for separate ratings based on associated objective neurological abnormalities. As explained below, the issue of entitlement to separate service connection for neurological disability manifested by bowel or bladder impairment secondary to the Veteran’s back disability is remanded. 3. Increased Ratings for the Right and Left Knee Disabilities The Veteran contends that his bilateral (right and left) knee disability is more disabling than contemplated by the ratings currently assigned. His bilateral knee disability is rated under Code 5010-5260 for arthritis resulting in limitation of flexion. In general, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.   Here, because the Veteran has post-traumatic arthritis in his right knee, Code 5010 is invoked, which, in turn, indicates to rate the arthritis as degenerative arthritis under DC 5003, which, in turn, indicates to rate the disability based on the extent the arthritis causes limitation of motion – so under Code 5260 (for limitation of flexion) and/or Code 5261 (for limitation of extension). Under Code 5260, flexion of the leg limited to 60 degrees warrants a zero percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating.38C.F.R.§4.71a, Code 5260. Under Code 5261, extension limited to five degrees warrants a zero percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating.38C.F.R.§4.71a, Code 5261. Under Code 5257, “other” impairment of the knee – including owing to recurrent subluxation or lateral instability – is rated as 10-percent disabling when slight, 20-percent disabling when moderate, and 30-percent disabling when severe. A Veteran cannot be compensated twice for the same symptom, else, this would contravene VA’s anti-pyramiding regulation – 38 C.F.R. § 4.14. But VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, respectively, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97, 62 Fed. Reg. 63, 604 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (August 14, 1998).   Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. The Veterans Court (CAVC) has clarified that ratings under Codes 5257 and 5260 and 5261 do not necessarily preclude ratings under Codes 5258 and 5259, i.e., the meniscal codes. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). Moreover, another precedent decision of the Court held that an objective clinical finding of instability is not required, noting this also may be established by subjective complaint. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). [All of that said, the Veteran has not had ankylosis of his knee, impairment of the tibia or fibula, or genu recurvatum diagnosed at any time during the evaluation period. Therefore, the criteria for rating such disabilities under Codes 5256, 5262, and 5263 need not be discussed.] As for the symptoms and consequent impairment that he has had, on April 2008 VA joints examination the Veteran complained of stiffness, swelling, and difficulty climbing stairs, bending, and squatting in his right knee. However, he stated that the pain in his left knee was worse, with popping sensations, swelling, and stiffness. He reported occasional locking of both knees, but no subluxation or dislocation; he only reported instability in the left knee (but no falls). On physical examination, no gross swelling, deformity, or tenderness was noted in the right knee; some palpable tenderness over the left knee patella was noted, but no gross deformity or swelling. Pain was only associated with range of motion testing in the left knee. Range of motion testing revealed flexion to 140 degrees for the right knee and flexion to 128 degrees for the left knee, each with full extension. Repetitive range of motion in either knee did not reveal any pain, fatigue, weakness, lack of endurance, or incoordination. On July 2009 VA joints examination, the Veteran reported stiffness and pain associated with his right knee, but no giving way or swelling; his left knee gave way every other day. He also reported associated weakness, popping sensations, swelling, stiffness, and difficulty climbing stairs with his left knee. The examiner noted that the Veteran dwelt on symptomatology “out of proportion to physical findings.” He further noted that the Veteran did not need assistive devices. Physical examination of both knees revealed no effusion or swelling. Range of motion testing revealed flexion to 132 degrees for the right knee and flexion to 134 degrees for the left knee, each with full extension. There was no detectable knee instability for either knee and no painful motion, tenderness, spasm, edema, fatigability, lack of endurance, weakness, or instability. Additional loss of function due to flare-ups could not be determined without resorting to mere speculation. During his July 2012 Travel Board hearing, the Veteran testified that his left knee was much worse than his right knee, that climbing stairs “is a real pain,” and that going downstairs is even worse. He also testified that his knees have given out while going downstairs. A May 2, 2013MRI revealed a horizontal medial meniscal tear of the right knee. On August 2013 VA knee and lower leg examination, the Veteran reported pressure, pain, stiffness, and a locking sensation. He also reported difficulty climbing stairs, bending, and squatting. He denied that flare-ups impact the function of his knees. Range of motion testing revealed flexion to 140 degrees bilaterally with no limitation of extension. He was able to perform repetitive use testing with no additional limitation of motion and no functional loss/impairment. His muscle strength and joint stability testing were normal. There was no evidence of recurrent patellar subluxation/dislocation. The Veteran denied any shin splints, meniscal conditions, or joint replacements. During November 2014 VA treatment, the Veteran reported locking in his right knee, with “on and off” swelling. On May 2015 VA knee and lower leg examination, right knee tendonitis and osteoarthritis and left knee meniscal tear and patellofemoral pain syndrome were diagnosed. The Veteran reported pain with stiffness and swelling. He denied that flare-ups impact the function of his knees. Functional loss included knee pain when bending, extending, or kneeling down. Range of motion testing revealed flexion to 100 degrees for the right knee and 140 degrees for the left knee, with no limitation of extension for either knee. Mild pain was noted on flexion and extension of the right knee; no pain was noted in the left knee. He was able to perform repetitive use testing with no additional limitation of motion and no functional loss. Although pain, weakness, fatigability, or incoordination significantly limited functional ability in the right knee with repeated use over time, the examiner could not describe it in terms of range of motion other than “less movement than normal.” Additional factors contributing to the right knee disability were disturbance of locomotion and interference with standing. Muscle strength testing was normal, with no evidence of muscle atrophy or ankylosis. Joint stability tests revealed no history of recurrent subluxation, lateral instability, or recurrent effusion for either knee. Instability was only noted in the left knee. There was no evidence of shin splints. The left knee revealed a meniscal tear with frequent episodes of joint locking and joint pain, but no joint effusion. (The Veteran had a left knee meniscectomy in 1989; the resulting scar was not painful or unstable, did not have a total area equal to or greater than 39 square centimeters, and was not located on his head, face, or neck.) The Veteran reported occasional use of a brace and regular use of a cane for assistance when walking. On July 2015 VA knee examination, bilateral degenerative arthritis of both knees was diagnosed. The Veteran denied flare-ups but reported functional loss in that his knees “lock up.” Range of motion testing revealed flexion and extension of 10 to 95 degrees for the right knee and 10 to 110 degrees for the left knee. Although pain was noted on flexion and extension, it did not cause functional loss. The Veteran was able to perform repetitive use testing with no additional functional loss or range of motion. Additional factors included less movement than normal due to ankylosis, adhesions, etc., disturbance of locomotion, and interference with standing. Muscle strength testing revealed active movement against some resistance with a reduction in muscle strength, but no muscle atrophy. There was no history of recurrent subluxation or lateral instability and no evidence of joint instability for either knee. The examination revealed no shin splints and no meniscal conditions (except for a meniscectomy in 1989). The examiner determined that the Veteran did not use an assistive device as a normal mode of locomotion. During December 2016 VA treatment, the Veteran’s range of motion for each knee was zero to 135 degrees. During July 2017 VA treatment, passive range of motion for each knee was 130 degrees. On January 2018 VA knee examination, the Veteran reported symptoms of swelling, locking, stiffness, and weakness. Flare-ups include swelling and pain following overexertion. He is limited from overexerting himself with walking stairs, limited physical activity, limited range of motion, and limited standing or sitting for long periods of time. Range of motion testing was normal for both knees (140 degrees or greater flexion and full extension) with no pain noted on examination (in either weight-bearing or non-weight bearing, or in passive range of motion testing) and no evidence of crepitus in either knee. The Veteran could perform repetitive use testing with no additional loss of function or range of motion; pain, weakness, fatigability, or incoordination did not significantly limit functional ability in either knee with repeated use over time or with flare-ups. Additional factors include weakened movement due to muscle injury or peripheral nerves injury. Muscle strength testing revealed active movement against some resistance, with a reduction in muscle strength due to the bilateral knee disability. There was no history of recurrent subluxation or lateral/joint instability, but there was a history of recurrent effusion (with left knee swelling about one year ago). The Veteran did not have recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment; a meniscus condition was not noted (except or a left knee meniscectomy in 1989). The Veteran reported occasional use of a cane for his back and knee conditions. Regarding the right knee, the Board notes that prior to March 31, 2009, the Veteran reported pain generally during his April 2008 VA examination but specifically denied pain with range of motion testing. Repetitive use testing also failed to elicit pain. Additionally, range of motion testing did not manifest flexion limited to 45 degrees or extension limited to 10 degrees which would warrant a compensable rating under Codes 5260 or 5261 prior to March 31, 2009.   Considering other applicable rating criteria, the Board notes that right knee subluxation or lateral instability was not shown (specifically so indicated on examinations during the evaluation period). Consequently, a separate compensable rating for subluxation or instability (under Code 5257) prior to March 31, 2009, is not warranted. In sum, the Board finds that the medical evidence of record fails to demonstrate that the Veteran’s disability picture is consistent with the limitations of motion for a compensable rating prior to March 31, 2009, even with consideration of the DeLuca factors such as additional limitation of functioning on flare ups, weakness, incoordination, fatigability, or lack of endurance. Consequently, the Board finds that the preponderance of the evidence is against finding that a compensable rating is warranted prior to March 31, 2009.The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The claim is, therefore, denied. From March 31, 2009, onwards, the Veteran has been assigned a 10 percent rating for his right knee disability in accordance with Code 5260. However, a review of the record does not disclose any occasion of treatment or evaluation during the period on appeal when the right knee has had flexion limited to 30 degrees or less extension limited to 15 degrees or more so as to, in turn, warrant an increased rating pursuant to Codes 5260 or 5261. The Board nonetheless further finds that separate 20 percent (but no higher) ratings under Code 5258 are warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint as of May 2, 2013. While VA examiners found no meniscus abnormality in either knee, including any finding of dislocation of cartilage, VA medical records note right knee meniscal tear and left knee meniscectomy, which is suggestive of some cartilage damage. Based on the foregoing, and given the subjective reports and clinical findings of pain, recurrent effusion or swelling, and locking in both knees, and resolving all reasonable doubt in favor of the Veteran, the Board finds that an additional 20 percent rating under DC 5258 is warranted for each knee for the entire rating period. Next, the Board will consider whether higher (but not separate) ratings are warranted for the service-connected left knee disability based on limitation of flexion (under Code 5260). To warrant a 20 percent rating, the evidence would have to show flexion limited to 30 degrees or less. The Board finds that such limitation is not shown. The Veteran’s forward flexion for his left knee was measured to end at 128 degrees in April 2008, at 134 degrees in July 2009, at 140 degrees in August 2013 and May 2015, at 110 degrees in July 2015, at 135 degrees in December 2016, at 130 degrees in July 2017, and at 140 degrees in January 2018. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. So, as is apparent, the Veteran’s flexion has been limited on most occasions, but only relatively slightly. Additionally, limitation of extension was only noted on July 2015 VA examination, and the 10-degree limitation warrants at most a 10 percent rating. Because the Veteran’s left knee flexion has not met the requirements for even the most minimum 0 percent rating under DC 5260, instead, at most a 10 percent rating under DC 5261 owing to the extent of his limited extension, he cannot receive separate ratings for limited flexion and extension. VAOPGCPREC 9-2004 (September 17, 2004). The Board further notes the Veteran’s complaints of left knee instability. As already alluded to, there is no prohibition of separate evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5257 or 5261 and a meniscal Diagnostic Code, i.e., Diagnostic Codes 5258 or 5259. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). Here, the Veteran's left knee has been manifested by limitation of flexion and extension, including due to pain (though not to a compensable extent as concerning the flexion), and by popping, locking, swelling, and instability. Those symptoms are contemplated by the rating criteria both under Diagnostic Code 5258, as residual symptoms of the semilunar cartilage removal, and under Diagnostic Codes 5257 and 5260. REASON FOR REMAND Entitlement to a separate compensable rating for a neurological disability manifested by bladder or bowel impairment secondary to the low back disability is remanded. The Board finds that a VA examination is needed to assist in determining whether the Veteran has a neurological disability involving bladder or bowel impairment associated with his service-connected low back disability, thereby entitling him to a separate compensable rating. When rating disabilities of the spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The Veteran already has a separate 10 percent rating under Code 8520 for radiculopathy of his left leg attributable to his low back disability. But he alleges there is other neurological impairment also warranting compensation. The Veteran’s VA treatment records raise the issues of entitlement to service connection and separate compensable ratings for other neurological disability involving bladder or bowel impairment associated with his service-connected low back disability. However, these records do not contain sufficient information to determine whether he is entitled to a separate compensable rating. There are conflicting diagnoses pertaining to this additional disability. The Veteran’s VA treatment records note his report of bladder and bowel impairment; however, the January 2018 VA back examination did not find any neurologic abnormalities such as bladder or bowel problems related to his low back disability. Therefore, further development of this claim is needed to reconcile these conflicting findings.   Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for an appropriate examination to determine the nature and etiology of his bladder or bowel impairment, including determining especially whether it is due to his service-connected low back disability. Any and all diagnostic testing and evaluation deemed necessary to make this important determination should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a complete copy of this decision and remand. For any bladder or bowel impairment confirmed to exist, please indicate whether the impairment is at least as likely as not (50 percent or greater probability) due to or aggravated by the Veteran's service-connected low back disability. (continued on next page)   To this end, the examiner must obtain a full history from the Veteran. It should be noted that he is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history he recounts, the examiner should provide a fully reasoned explanation. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Poindexter 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED