Citation Nr: 20032015
Decision Date: 05/06/20	Archive Date: 05/06/20

DOCKET NO. 16-30 473
DATE: May 6, 2020

ORDER

Entitlement to a disability rating of 20 percent, but no higher, for a service-connected cervical spine disorder is granted.

Entitlement to a disability rating in excess of 20 percent for a service-connected thoracolumbar spine disorder is denied.

Entitlement to a disability rating in excess of 10 percent for a service-connected right knee impairment is denied.

Entitlement to a disability rating in excess of 10 percent for service-connected left knee arthritis is denied.

Entitlement to a disability rating in excess of 10 percent for a service-connected left knee meniscal condition is denied. 

Entitlement to a disability rating in excess of 10 percent for a service-connected right ankle condition is denied. 

Entitlement to a disability rating in excess of 10 percent for service-connected radiculopathy of the lower left extremity is denied. 

FINDINGS OF FACT

1. The evidence of record shows that the Veteran’s service-connected cervical spine disorder has resulted in limitation of motion to greater than 15 degrees flexion but less than 30 degrees flexion.  

2. The evidence of record is against finding that the Veteran’s service-connected thoracolumbar spine disorder has resulted in favorable ankylosis or limitation of flexion to 30 degrees or less. 

3. The evidence of record is against finding that the Veteran’s service-connected right knee impairment has resulted in limitation of flexion to 30 degrees or less or limitation of extension to 15 degrees or more. 

4. The evidence of record is against finding that the Veteran’s service-connected left knee arthritis has resulted in limitation of flexion to 30 degrees or less or limitation of extension to 15 degrees or more. 

5. The evidence of record is against finding that the Veteran’s service-connected left knee meniscal condition has resulted in more than slight lateral instability or subluxation.

6. The evidence of record is against finding that the Veteran’s service-connected right ankle condition has resulted in marked limitation of motion.

7. The evidence of record is against finding that the Veteran’s service-connected radiculopathy of the lower left extremity is greater than mild in severity. 

CONCLUSIONS OF LAW

1. The criteria for a disability rating of 20 percent, but no higher, for a service-connected cervical spine disorder have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242.

2. The criteria for a disability rating in excess of 20 percent for a service-connected thoracolumbar spine disorder have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243.

3. The criteria for a disability rating in excess of 10 percent for a service-connected right knee impairment have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5260.

4. The criteria for a disability rating in excess of 10 percent for service-connected left knee arthritis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5260.

5. The criteria for a disability rating in excess of 10 percent for a service-connected left knee meniscal condition have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257.

6. The criteria for a disability rating in excess of 10 percent for a service-connected right ankle condition have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5271.

7. The criteria for a disability rating in excess of 10 percent for service-connected radiculopathy of the lower left extremity have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8599-8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from June 1973 to November 1975, October 1982 to January 1995, and January 2003 to April 2008

This case is on appeal before the Board of Veterans’ Appeals (Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

In January 2020, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing is associated with the claims file.

Apart from the allegations addressed specifically below, neither the Veteran nor his representative has raised issues with the duty to notify or the duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  Also, neither the Veteran nor his representative has raised any issues concerning the hearing held before the undersigned.  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).

The Veteran seeks increased disability ratings for his service-connected cervical spine disorder, thoracolumbar spine disorder, bilateral knee impairments, right ankle condition, and radiculopathy of the lower left extremity.  See June 2016 Form 9.  

Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in a veteran’s condition.  Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply.  Fenderson v. West, 12 Vet. App. 119 (1999).  Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports.  Id.  Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, 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.  38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49.  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).

I.	Cervical Spine Disorder

The Veteran seeks an increased evaluation for his service-connected cervical spine disorder, which is currently rated at 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5242.  See July 2014 rating decision.  

Disabilities of the spine are evaluated under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula).  The criteria of the General Rating Formula are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  Associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code.  38 C.F.R. § 4.71a, General Rating Formula, Note (1). 

When evaluating joint disabilities rated on the basis of limitation of motion, the VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).

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.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Instead, Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  In evaluating the severity of a joint disability, the VA must determine the overall functional impairment due to these factors.

Under Diagnostic Code 5003, arthritis established by X-ray findings will be rated on the basis of limitation of motion of the specific joint involved.  When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applied for each such major joint or group of minor joints affected by limitation of motion.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation.  X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  For the purposes of this decision, the cervical and lumbar vertebrae are considered groups of minor joints, while the knees and ankles are considered major joints.  38 C.F.R. § 4.45.  

Under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), a disability rating of 10 percent is assigned for forward flexion of the cervical spine greater than 30 degrees but less than 40 degrees; or combined range of motion of the cervical spine greater than 170 degrees but less than 335 degrees; or 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.  38 C.F.R. § 4.71a, Diagnostic Code 5242.   

A 20 percent evaluation is provided for forward flexion of the cervical spine greater than 15 degrees but less than 30 degrees; or combined range of motion of the cervical spine not greater than 170 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.  Id.   

A 30 percent disability rating is assigned when forward flexion of the cervical spine is measured at 15 degrees or less; or when the evidence shows favorable ankylosis of the entire cervical spine.  Id. 

A 40 percent evaluation is provided when the evidence shows unfavorable ankylosis of the entire cervical spine.  Id.   

For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  The 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 cervical spine is 340 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Formula, Note (2); see also Plate V.

Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  38 C.F.R. § 4.71a, General Formula, Note (5).

Intervertebral disc syndrome (IVDS) is rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher disability rating.

The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  A 20 percent evaluation is awarded for a disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent disability rating is in order.  Finally, a maximum schedular rating of 60 percent is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243.

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.  Id. at Note (1).

During an appointment with his VA treating physician in May 2013, range of motion in the Veteran’s neck was measured at 10 degrees flexion and 26 degrees extension.  He was also noted to experience “occasional radicular symptoms” despite his sensation being generally intact. 

A VA examination report from November 2013 reflects an in-person evaluation.  The examiner noted the Veteran’s prior diagnosis of degenerative disc disease of the cervical spine; he reported flare-ups of this condition, which resulted in pain, trouble turning his neck, numbness in his fingers, and a burning sensation in his shoulders.  Flexion and extension were both measured to 35 degrees.  Though abnormal range of motion was found to contribute to functional loss, the Veteran was able to complete repetitive use testing without additional loss of range of motion.  Despite this, pain on use and pain on weightbearing were both noted to result in additional functional loss and limited range of motion.  There was no evidence of pain on palpation or localized tenderness, though guarding and muscle spasms were documented.  However, these were not severe enough to result in abnormal gait or spinal contour.  The examiner also determined that the Veteran’s cervical spine disorder resulted in pain on movement but no other symptoms.  Nonetheless, pain, weakness, fatiguability, and incoordination were not found to significantly limit functional ability during flare-ups or with repeated use over time.  There were no indications of diminished muscle strength, muscle atrophy, ankylosis, or IVDS.  The sensory and reflex examinations were likewise normal, with no evidence of radicular pain or other neurological abnormalities.  Lastly, though the Veteran was noted to use a cane occasionally, this was due to his left knee impairment rather than his neck condition.  Based on these findings, the examiner opined that the Veteran’s service-connected cervical spine disorder would affect his ability to perform occupational tasks by limiting his mobility and overall functioning.

An MRI of the Veteran’s cervical spine performed at a VA facility in July 2014 revealed advanced multilevel degenerative changes at the C3-C4 and C6-C7 levels.  There was also flattening of the ventral cord at the C3-C4 and C6-C7 levels, along with moderate to severe canal stenosis at the C3-C4 level with mild to moderate canal stenosis throughout.  Lastly, severe foraminal stenosis was documented at multiple levels.

During an appointment with his VA treating physician in August 2014, the Veteran reported diminished sensation to light touch, pinprick, and cold temperature in his left hand and left foot.  His sensation was intact everywhere else.  The progress note suggests that his left hand symptoms could be attributable to his neck condition.  

Private chiropractic treatment records dating between 2016 and early 2018 contain three range of motion measurements related to the Veteran’s cervical spine.  In March 2016, his cervical range of motion was measured at 5 degrees flexion and 45 degrees extension (total range of motion 205 degrees).  In February 2017, flexion was recorded as 15 degrees with extension to 35 degrees (total range of motion 180 degrees).  In April 2018, cervical flexion was measured at 15 degrees and extension to 45 degrees (total range of motion 177 degrees).  Though these records also reflect numerous complaints of neck pain, there were no indications of cervical radiculopathy. 

A VA examination report from August 2018 reflects review of the claims file and an in-person evaluation.  The examiner noted the Veteran’s prior diagnosis of degenerative arthritis of the cervical spine.  The Veteran denied experiencing flare-ups but claimed that this condition resulted in pain and decreased mobility.  Forward flexion was measured from zero to 45 degrees, with extension from zero to 30 degrees.  Range of motion was not found to contribute to functional loss, nor was there evidence of localized tenderness, pain on palpation, or pain on weightbearing.  Indeed, no pain was noted during the examination.  The Veteran was also able to complete repetitive use testing without additional functional loss.  The examination was found to be neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repeated use over time.  Additionally, the examiner was unable to state without resorting to mere speculation whether pain, weakness, fatiguability, or incoordination would significantly limit functional ability with repeated use over time without resorting to mere speculation because there was no objective evidence upon which to base such a conclusion.  There was no indication of guarding, muscle spasm, or muscle atrophy.  Muscle strength, reflex, and sensory testing were normal, with no evidence of ankylosis, IVDS, radiculopathy, or other neurological abnormalities.  However, the examiner noted the Veteran’s diabetes, which was found to result in numbness in his hands and feet.  While there was objective evidence of arthritis in the Veteran’s cervical spine, none of the available imaging showed a vertebral fracture with loss of 50 percent or more of height.  Based on this information, the examiner determined that the Veteran’s service-connected cervical spine disorder would affect his ability to work by resulting in increased absenteeism and tardiness, having to be assigned different duties, pain, and impaired mobility.

Dr. D.A., a private chiropractor, wrote in March 2019 that the Veteran experienced advanced spinal degeneration.  She went on to state that his condition will continue to deteriorate as he ages.  When he is able to receive chiropractic care, these therapies allow him to function and perform his activities of daily living with less pain and discomfort.  However, when he cannot receive chiropractic care, he will often miss work due to pain.  Dr. D.A. therefore recommended that the Veteran have chiropractic therapy one to two times per week so he can be prevented from having to use pain medication. 

During his January 2020 Board hearing, the Veteran alleged that the August 2018 VA examination was inadequate.  Although he claimed that the evaluation was rushed, he admitted that the examiner conducted range of motion testing.  He also claimed that he was unable to move his head far back and asserted that, in order to turn, he had to twist his entire body.  Lastly, the Veteran reported that his neck pain was accompanied by pain throughout his shoulders that radiated down his arms.  

A February 2020 letter from Dr. D.A. contains a report of physical examination conducted of the Veteran in In January 2020.  The evaluation reflected cervical range of motion of 17 degrees flexion and 34 degrees extension, both with pain.  Dr. D.A. also commented that the Veteran’s condition had worsened over the last six months, with an MRI showing “mildly progressed” degenerative changes.  Lastly, the Veteran complained of numbness and tingling in his hands; however, the examination only confirmed the existence of hypoesthesia at the C6-C7 level.  

After careful consideration of the claims file, the Board concludes that the evidence of record supports the assignment of a disability rating of 20 percent, but no higher, for the Veteran’s service-connected cervical spine disorder.  To meet the requirements of the 20 percent evaluation under Diagnostic Code 5242, the evidence of record must show flexion greater than 15 degrees but less than 30 degrees.  Alternatively, the Veteran could demonstrate combined range of motion less than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour.  

Here, although the Veteran’s cervical flexion was measured at 35 degrees in November 2013 and 45 degrees in August 2018, the Board notes that the evidence of record contains numerous other flexion measurements well below 30 degrees.  Indeed, flexion was recorded at 10 degrees in May 2013, 5 degrees in March 2016, 15 degrees in February 2017, 15 degrees in April 2018, and 17 degrees in January 2020.  This evidence shows that the Veteran has experienced acute exacerbations of his cervical spine disorder throughout the period on appeal, which significantly restrict range of motion.  Given the regularity and severity of these episodes, the Board determines that the Veteran’s condition is more analogous to the 20 percent disability rating under Diagnostic Code 5242.  Accordingly, the Board grants entitlement to the higher evaluation for the entirety of the appeal period.

However, the Board denies entitlement to a disability rating in excess of 20 percent.  In order to qualify for a 30 percent evaluation under Diagnostic Code 5242, the evidence of record must show limitation of flexion of the cervical spine to 15 degrees or less.  Alternatively, the Veteran could demonstrate favorable ankylosis of the entire cervical spine.  Despite this, the Board finds no evidence of ankylosis, either favorable or unfavorable, affecting any portion of the Veteran’s cervical spine.  Similarly, though the evidence of record contains several measurements of cervical flexion less than 15 degrees, the Board reiterates that these are interspersed among findings well above 30 degrees.  Given the wide discrepancy in these measurements, the Board therefore determines that the Veteran’s cervical spine disorder has not been characterized predominantly by cervical flexion limited to 15 degrees or less.  Accordingly, an evaluation in excess of 20 percent is not warranted.   

The Board has also examined whether the Veteran might be entitled to a higher disability rating under the criteria for IVDS found in Diagnostic Code 5243.  However, the evidence of record does not establish that the Veteran has ever been diagnosed with IVDS of the cervical spine.  Additionally, the Board finds nothing to indicate that the Veteran has ever been under physician-prescribed bedrest.  As such, his cervical spine disorder does not warrant a higher evaluation under Diagnostic Code 5243. 

Moreover, the Board has considered whether separate disability ratings could be assigned for the Veteran’s claimed cervical radiculopathy.  While the evidence of record contains several references to possible radicular symptoms in his upper extremities, the Board notes that these are not substantiated by objective medical evidence.  Indeed, neither the November 2013 nor August 2018 VA examiner found any evidence of cervical radiculopathy.  The Veteran’s private chiropractic treatment records are similarly absent for such reports despite numerous mentions of sciatica.  Though the January 2020 evaluation from Dr. D.A. establishes the presence of hypoesthesia in the Veteran’s neck, the Board reiterates that the examination report contains no objective evidence of radicular symptoms in either of his upper extremities.  Therefore, given the lack of evidence to indicate that his neck condition results in radiculopathy, the Board determines that separate evaluations cannot be awarded for the Veteran’s neurological complaints.   

Lastly, the Board acknowledges the Veteran’s contention that the August 2018 VA examination was rushed and therefore inadequate.  Despite these claims, the examination report shows, and he himself admitted, that all required range of motion testing was conducted.  Therefore, though the Board finds no reason to question the adequacy of any of the findings reflected in the August 2018 VA examination report, it nonetheless expresses limited agreement with the Veteran that his cervical spine disorder is worse than previously assessed.  Thus, for the reasons set forth above, the Board finds that his condition is more analogous to the 20 percent disability rating under Diagnostic Code 5242. 

The Board thus determines that the evidence of record supports the assignment of a 20 percent evaluation, but no higher, for the Veteran’s service-connected cervical spine disorder throughout the period on appeal.  Accordingly, the Veteran’s claim for an increased disability rating for his service-connected cervical spine disorder is granted to the extent outlined above.   

II.	Thoracolumbar Spine Disorder

The Veteran seeks an increased evaluation for his service-connected thoracolumbar spine disorder, which is currently rated at 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5243.  See July 2014 rating decision.  

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  Here, the use of the hyphenated diagnostic code indicates that the Veteran’s service-connected lumbar spine disorder has been rated on the basis of degenerative arthritis (Diagnostic Code 5242) and intervertebral disc syndrome (Diagnostic Code 5243).

The General Rating Formula pertinent to the thoracolumbar spine assigns a 10 percent disability rating if there is forward flexion of the thoracolumbar spine greater than 60 degrees but less than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but less than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or spinal contour; or vertebral body fracture with loss of 50 percent or more of the height.  38 C.F.R. § 4.71a, Diagnostic Code 5242.  

A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but less than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis.  Id.  

A 40 percent disability rating is assigned when there is forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  Id.  

A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  Lastly, a 100 percent disability rating is assigned when there is unfavorable ankylosis of the entire spine.  Id. 

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The 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.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Formula, Note (2); see also Plate V. 

A VA examination report from November 2013 reflects an in-person evaluation.  The examiner noted the Veteran’s prior diagnoses of degenerative disc disease, IVDS, and a herniated nucleus pulposus of the thoracolumbar spine; he claimed that this condition resulted in flare-ups, characterized by pain and spasms.  Flexion was measured to 60 degrees and extension to 15 degrees.  Although abnormal range of motion was found to contribute to functional loss, the Veteran was able to complete repetitive use testing without additional loss of range of motion.  Pain was noted during range of motion as well on weightbearing; however, no additional measurements were taken.  There was no localized tenderness or pain on palpation.  Gait and spinal curvature were normal, and there were no indications of guarding or muscle spasm.  The Veteran’s thoracolumbar spine disorder was found to result in pain on movement.  Nonetheless, there was no evidence of diminished muscle strength, muscle atrophy, or ankylosis.  While there was documented evidence of IVDS of the thoracolumbar spine, the Veteran had not experienced any incapacitating episodes in the previous 12 months.  Lastly, though the Veteran was noted to use a cane occasionally, this was due to his left knee impairment and not because of his lower back condition.  Based on this evidence, the examiner opined that the Veteran’s service-connected thoracolumbar spine disorder would affect his ability to engage in occupational tasks by resulting in pain and weakness.

An MRI of the Veteran’s thoracolumbar spine taken at a VA facility in July 2014 showed no cord compression.  However, thoracic spondylosis with multilevel mild degenerative disc disease was present, along with mild central canal narrowing at the T2-T3, T3-T4, T5-T6, T6-T7, T7-T8, and T9-T10 levels.  The study also found postsurgical changes of the lower lumbar spine with multilevel degenerative changes and grade 1 spondylolisthesis at the L5-S1 level.  Lastly, there was disc desiccation throughout.

Private chiropractic treatment records dating between 2016 and early 2018 contain three range of motion measurements related to the Veteran’s thoracolumbar spine.  In March 2016, his lumbar range of motion was measured at 80 degrees flexion and 10 degrees extension.  In February 2017, flexion was recorded as 90 degrees with extension to 15 degrees.  In April 2018, lumbar flexion was measured at 90 degrees and extension to 29 degrees.  

A VA examination report from August 2018 reflects review of the claims file and an in-person evaluation.  The examiner noted the Veteran’s diagnosis of degenerative arthritis of the thoracolumbar spine.  Though the Veteran denied experiencing flare-ups of this condition, he asserted that it resulted in pain and limited mobility.  Forward flexion was measured from zero to 90 degrees, with extension from zero to 20 degrees.  Range of motion was not found to contribute to functional loss.  There was no evidence of pain on weightbearing, pain on palpation, or localized tenderness.  Indeed, no pain was noted during the examination.  The Veteran was also able to perform repetitive use testing without additional functional loss.  While the Veteran was not examined after repeated use over time, the results of the evaluation were found to be neither medically consistent nor inconsistent with his statements.  Moreover, the examiner could not opine whether pain, weakness, fatiguability, or incoordination significantly limited functional ability with repeated use over time without resorting to mere speculation because there was no objective evidence upon which to base such a conclusion.  There was no evidence of guarding, muscle spasm, or muscle atrophy.  Muscle strength and sensory examinations were normal.  Although the Veteran’s reflexes were found to be hypoactive in both knees, straight leg raising tests were negative bilaterally.  There were no indications of ankylosis, IVDS, radiculopathy, or other neurological abnormalities.  The Veteran did not use any assistive devices, and the numbness he experienced in his hands and feet was attributed to his diabetes.  The examiner noted the presence of an 8-centimeter by 1-centimeter surgical scar on the Veteran’s lower back.  However, this was not found to be painful, unstable, or greater in total area than 39 square centimeters.  Lastly, while objective evidence confirmed the existence of arthritis throughout the Veteran’s thoracolumbar spine, there were no indications of a vertebral fracture with loss of 50 percent or more of height.  Based on these findings, the examiner concluded that the Veteran’s service-connected thoracolumbar spine disorder would affect his ability to perform occupational tasks, resulting in increased absenteeism, tardiness, having to be assigned different duties, pain, limited mobility, and difficulty lifting and carrying.

Dr. D.A., a private chiropractor, wrote in March 2019 that the Veteran experienced advanced spinal degeneration.  Specifically, she pointed out that he had spondylolisthesis at the L5 level and a laminectomy at the L3-L5 levels.  Dr. D.A. went on to state that the Veteran’s condition will continue to deteriorate as he ages.  When he is able to receive chiropractic care, these therapies allow him to function and perform his activities of daily living with less pain and discomfort.  However, when he cannot receive chiropractic care, he will often miss work due to pain.  She therefore recommended that the Veteran have chiropractic therapy one to two times per week so he can be prevented from having to use pain medication. 

During his January 2020 Board hearing, the Veteran alleged that the August 2018 VA examination was inadequate.  Although he claimed that the evaluation was rushed, he admitted that the examiner conducted range of motion testing. 

A February 2020 letter from Dr. D.A. contains a report of physical examination conducted of the Veteran in In January 2020.  The evaluation reflected thoracolumbar range of motion of 55 degrees flexion with pain and 25 degrees extension without pain.  Dr. D.A. also commented that the Veteran’s condition had worsened over the last six months, with an MRI showing progressed degenerative changes.  Lastly, the Veteran exhibited severe muscle spasms throughout his thoracolumbar paraspinal muscles, and examination confirmed the existence of hypoesthesia at the L2-L5 levels.  

After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s service-connected thoracolumbar spine disorder warrants a disability rating in excess of 20 percent for any portion of the period on appeal.  

To meet the requirements of the 40 percent disability rating under Diagnostic Code 5242, the evidence of record must show flexion limited to 30 degrees or less.  Alternatively, the Veteran could demonstrate favorable ankylosis of the entire thoracolumbar spine.  Here, the Board finds no evidence of ankylosis, either favorable or unfavorable, affecting any portion of the Veteran’s thoracolumbar spine.  Additionally, none of the available evidence indicates that flexion has been restricted to less than 55 degrees during any portion of the appeal period.  The Board points out that the lowest flexion measurement was recorded by Dr. D.A. in January 2020; however, this finding is not significantly reduced from that of the November 2013 VA examiner.  Moreover, the flexion measurements dating between November 2013 and January 2020 are substantially higher than those recorded either by Dr. D.A. or the November 2013 VA examiner.  This evidence contradicts the Veteran’s claim that his thoracolumbar spine disorder has continually worsened throughout the appeal period. 

The Board recognizes the March 2019 letter from Dr. D.A., which states that the Veteran must receive chiropractic care at least once per week to manage his thoracolumbar spine disorder.  Despite this, her treatment records do not show that the Veteran’s thoracolumbar range of motion has been predominantly limited to 30 degrees flexion or less; indeed, the lowest measurement of thoracolumbar flexion reflected in her progress notes was 80 degrees.  The letter from Dr. D.A. instead suggests that the Veteran’s condition can be effectively controlled with chiropractic treatment, as long as he is able to receive it, which does not even include the use of prescription pain medications.  The fact that the Veteran retains a high degree of functioning despite limiting himself to conservative treatment is likewise inconsistent with the application of a 40 percent disability rating under Diagnostic Code 5242.  As such, the Board finds no evidence to warrant a higher evaluation.  

In reaching this conclusion, the Board has considered whether a higher disability rating could have been assigned for additional functional loss due to pain, weakness, fatigability, incoordination, and other factors.  DeLuca, 8 Vet. App. at 204-07.  Although the Veteran exhibited pain during the November 2013 VA examination and the January 2020 evaluation with Dr. D.A., these findings were not duplicated in August 2018 VA examination report.  Moreover, the Board notes that the Veteran was able to complete repetitive use testing without additional functional loss during both the November 2013 and August 2018 VA examinations.  While the Board acknowledges that the Veteran may experience additional limitations due to pain, flare-ups, or with repeated use over time, the fact that his records are absent for any documented emergency treatment suggests that these episodes do not occur frequently enough to effectively restrict his thoracolumbar range of motion to 30 degrees flexion or less.  Therefore, the Board denies an evaluation in excess of 20 percent for the Veteran’s service-connected thoracolumbar spine disorder. 

The Board has also examined whether the Veteran might be entitled to a higher disability rating under the criteria for IVDS found in Diagnostic Code 5243.  However, while the November 2013 VA examiner noted a diagnosis of IVDS, he was not found to have experienced any incapacitating episodes in the previous 12 months.  Additionally, the Board finds nothing to indicate that the Veteran has ever been under physician-prescribed bedrest.  As such, his thoracolumbar spine disorder does not warrant a higher evaluation under Diagnostic Code 5243. 

Moreover, the Board has considered whether a separate evaluation might be assigned for the surgical scar on the Veteran’s lower back.  Although this scar was noted during the August 2018 VA examination, the report does not indicate that it is painful, unstable, or greater in total area than 39 square centimeters.  The Board therefore determines that a separate disability rating is not warranted for the Veteran’s thoracolumbar surgical scar under any of the relevant diagnostic codes.  38 C.F.R. § 4.118. 

Lastly, the Board acknowledges the Veteran’s contention that the August 2018 VA examination was rushed and therefore inadequate.  Despite these claims, the examination report shows, and he himself admitted, that all required range of motion testing was conducted.  Although the Veteran continues to assert that his thoracolumbar spine disorder is worse than the evaluation revealed, the Board reiterates that loss of range of motion serves as the primary factor by which his back impairment is rated.  While the Board recognizes that the Veteran’s condition certainly results in numerous restrictions, there is no evidence that range of motion in his thoracolumbar spine has been predominantly limited to a degree consistent with a 40 percent evaluation under Diagnostic Code 5242 or 5243.  As such, the Board finds that this allegation is without merit.         

For the reasons set forth above, the Board concludes that the evidence of record does not support the assignment of an evaluation in excess of 20 percent for the Veteran’s service-connected thoracolumbar spine disorder for any portion of the period on appeal.  To the extent that any higher level of compensation is sought, the preponderance of the evidence is against the claim.  Hence the benefit of the doubt rule does not apply.  Gilbert, 1 Vet. App. at 58.  Accordingly, the Veteran’s claim for a disability rating in excess of 20 percent for his service-connected thoracolumbar spine disorder is denied.   

III.	Bilateral Knee Impairments

The Veteran seeks increased evaluations for his service-connected right knee impairment, left knee arthritis, and left knee meniscal condition.  For the sake of expediency, the facts and regulations relevant to these three claims will be discussed together.  They will be referred to collectively as the Veteran’s “bilateral knee impairments” where appropriate.  

Separate ratings may be assigned for limitation of flexion, extension, instability, and a meniscal disability of the same knee under Diagnostic Codes 5260, 5261, 5257, 5258 or 5259.  VAOPGCPRECs 9-04, 9-98, 23-97; Lyles v. Shulkin, 29 Vet. App. 107 (2017).  

Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261.  Under Diagnostic Code 5260, a noncompensable rating is warranted when flexion of the leg is only limited to 60 degrees.  A 10 percent rating is assigned when flexion is limited to 45 degrees.  A 20 percent evaluation is warranted when flexion is limited to 30 degrees.  A 30 percent rating is assigned when flexion is limited to 15 degrees.  Id.  

Under Diagnostic Code 5261, a noncompensable rating is warranted when extension of the leg is limited to 5 degrees.  A 10 percent disability rating is assigned when extension is limited to 10 degrees.  A 20 percent disability rating is warranted when extension is limited to 15 degrees.  A 30 percent disability rating is assigned when the evidence shows extension limited to 20 degrees.  A 40 percent disability rating is warranted when extension is limited to 30 degrees.  A 50 percent disability rating is assigned when extension is limited to 45 degrees.  Id. 

Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion.  38 C.F.R. § 4.71, Plate II.

Under Diagnostic Code 5257, a 10 percent evaluation is warranted when there is slight recurrent subluxation or lateral instability.  A 20 percent evaluation is assigned for moderate recurrent subluxation or lateral instability.  A 30 percent evaluation is warranted when the evidence shows severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a.  Diagnostic Code 5257 is based upon instability and subluxation, not limitation of motion.  Thus, the criteria set forth in DeLuca do not apply.  DeLuca, 8 Vet. App. at 206.

Diagnostic Codes 5258 and 5259 provide for compensation when the semilunar (meniscal) cartilage is dislocated or removed.  Id.  Specifically, a 10 percent disability rating is assigned for symptomatic removal of semilunar cartilage, and a 20 percent evaluation is warranted when there is dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint.  38 C.F.R. § 4.71a.  

The words “slight,” “moderate,” and “severe” are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just.  It should also be noted that use of terminology such as “slight” and “moderate” by physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue.  Rather, all evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

An X-ray of the Veteran’s bilateral knees taken at a private facility in October 2013 revealed advanced medial and to a lesser extent patellofemoral compartment osteoarthritis of the left knee.  There was also mild medial and patellofemoral osteoarthritis of the right knee.  Overall, the Veteran’s bilateral knee osteoarthritis was characterized as more severe on the left than the right.

A VA examination report from November 2013 reflects an in-person evaluation.  The examiner noted the Veteran’s prior diagnoses of a left knee meniscectomy and bilateral knee arthritis.  The Veteran reported flare-ups of his knee condition, which resulted in severe pain and constant throbbing.  During these episodes, he had difficulty going up and down stairs, felt unstable, and limped.  Flexion in the right knee was measured to 140 degrees and extension to zero degrees.  Flexion in the left knee was measured to 90 degrees and extension to zero degrees.  Abnormal range of motion in both knees was found to contribute to functional loss.  The Veteran was able to complete repetitive use testing with his right knee without additional functional loss.  Although the examiner indicated that he experienced additional functional loss in his left knee after repetitive use testing, flexion was still measured to 90 degrees and extension to zero degrees.  Pain during range of motion and weightbearing was found to contribute to additional functional loss in both knees, though no additional measurements were taken.  There was also no evidence of localized tenderness or pain on palpation in either knee.  The examiner determined that the Veteran’s left knee impairment resulted in excess fatiguability, pain on movement, swelling, and instability of station.  Pain, weakness, fatiguability, and incoordination were not found to significantly limit functional ability in the Veteran’s right knee during a flare-up or with repeated use over time.  Nonetheless, the examiner found that these factors would limit his left knee flexion to 90 degrees and his left knee extension to zero degrees.  Specifically, the examiner noted instability with left knee extension and pain with left knee flexion.  There was no evidence of reduction in muscle strength, muscle atrophy, or ankylosis in either knee.  Though no joint instability was found in the Veteran’s right knee, multiple tests revealed variances of zero to 5 millimeters in his left knee.  The examiner also noted the Veteran’s left knee meniscectomy but the examination report contains no indication of residual symptoms.  Lastly, the examiner determined that the Veteran used a cane occasionally due to his left knee impairments.  Based on these findings, the examiner concluded that the Veteran’s service-connected bilateral knee impairments would not affect his ability to perform any type of occupational tasks.

A VA treatment record from April 2016 states that the Veteran was still walking on his left knee despite an ACL tear. 

A VA medical note from August 2016 indicates that the Veteran still experienced knee pain but had generally good results with medication.  The attending physician wrote that he walked with an antalgic gait.  Another record from three months later shows that the Veteran was then receiving injections in his knees. 

A VA treatment record from July 2017 reveals that the Veteran had been fitted for a left knee brace. 

A VA examination report from August 2018 reflects review of the claims file and an in-person evaluation.  The examiner noted the Veteran’s prior diagnoses of a left knee meniscal tear, as well as a bilateral osteoarthritis.  The Veteran denied flare-ups but complained of pain, stiffness, and impaired mobility.  Right knee flexion was measured from zero to 130 degrees, with extension from 130 to zero degrees.  Left knee flexion was measured from zero to 110 degrees, with extension from 110 to zero degrees.  There was no evidence of pain on weightbearing, localized tenderness, pain on palpation, or crepitus in either knee.  Indeed, no pain was noted during the evaluation.  The Veteran was also able to complete repetitive use testing in both knees without additional functional loss.  Though the Veteran was not tested after repetitive use over time, the results of the evaluation were found to be neither medically consistent nor inconsistent with the Veteran’s statements.  The examiner also could not determine whether pain, weakness, fatiguability, or incoordination would significantly limit functioning of the Veteran’s knees with repeated use over time without resorting to mere speculation because no objective evidence existed upon which to render such a conclusion.  Muscle strength testing was normal, with no indications of muscle atrophy, ankylosis, or joint instability.  A meniscal condition was noted in the Veteran’s left knee but found to be asymptomatic.  There was also a surgical scar on the Veteran’s left knee, measuring 9 centimeters by 1 centimeter.  However, the examiner concluded that it was not painful, unstable, or greater in total area than 39 square centimeters.  The Veteran did not use any assistive devices.  Based on these findings, the examiner opined that the Veteran’s service-connected bilateral knee impairments would affect his ability to work by resulting in increased absenteeism and tardiness, having to be assigned different duties, impaired mobility, and pain.

During his January 2020 Board hearing, the Veteran alleged that the August 2018 VA examination was inadequate.  Although he claimed that the evaluation was rushed, he admitted that the examiner conducted the required range of motion testing.  Nonetheless, he argued that his knee conditions were worse than the evaluation reflected.  The Veteran stated that his knee pain makes it difficult for him to get out of bed and climb stairs, saying that his joints were “not working the way [they] should.”  He also asserted that he cannot walk on uneven ground due to his left knee instability, saying that it was “moderate to severe” rather than “slight.” 

a.	Right Knee Impairment

The Veteran seeks an increased evaluation for his service-connected right knee impairment, which is currently rated at 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260.  See July 2014 rating decision.  Here, the use of a hyphenated diagnostic code indicates that the Veteran’s service-connected right knee condition has been rated on the basis of degenerative arthritis (Diagnostic Code 5003) and limitation of flexion (Diagnostic Code 5260). 

After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s service-connected right knee impairment warrants a disability rating in excess of 10 percent for any portion of the period on appeal.  

Diagnostic Code 5260 permits the assignment of a 20 percent evaluation when there is evidence of flexion limited to 30 degrees or less.  However, throughout the entirety of the appeal period, the Veteran has never exhibited flexion less than 130 degrees in his right leg.  Although the November 2013 VA examination report indicates that pain on use and weightbearing contributed to additional functional loss, there is no evidence that flexion in the Veteran’s right knee is predominantly limited to 30 degrees or less.  This is consistent with the November 2013 VA examiner’s finding that pain, weakness, fatiguability, and incoordination would not significantly limit functional ability in the Veteran’s right knee during a flare-up or with repeated use over time.  Given that he denied flare-ups of his right knee condition during the August 2018 VA examination, was well as the fact that the later evaluation did not reveal objective evidence of pain, the Board finds nothing to suggest that flexion in the Veteran’s right knee has been effectively reduced to 30 degrees or less.  DeLuca, 8 Vet. App. at 204-07.  The Board therefore concludes that the Veteran’s right knee impairment does not warrant a higher disability rating under Diagnostic Code 5260 for any portion of the appeal period. 

Under Diagnostic Code 5261, a 20 percent evaluation is assigned when extension of the leg is limited to 15 degrees or greater.  However, during both the November 2013 and August 2018 VA examinations, the Veteran demonstrated extension to zero degrees.  While the November 2013 VA examiner determined that pain on use and weightbearing would contribute to additional functional loss, the August 2018 VA examination report reflects no objective evidence of pain.  Given the lack of any affirmative indications that pain, weakness, fatiguability, or incoordination would significantly limit functional ability during a flare-up or with repeated use over time, the Board finds nothing to suggest that extension in the Veteran’s right leg has been effectively reduced to 15 degrees or greater.  Id.  As such, he would not be entitled to a higher disability rating under Diagnostic Code 5261.  Moreover, though the Veteran claims some degree of restricted motion in his right leg, none of the available measurements fall within the compensable range of Diagnostic Code 5260 or 5261.  Therefore, as required by Diagnostic Code 5003, a single 10 percent evaluation has been assigned for arthritis accompanied by restricted motion not compensable under Diagnostic Code 5260 or 5261. 

Consistent with the holding of Lyles, 29 Vet. App. 107, the Board has also considered whether separate disability ratings are warranted for the Veteran’s right knee impairment due to instability or a meniscal disability under Diagnostic Codes 5257, 5258, or 5259.  However, the November 2013 and August 2018 VA examination reports both affirmatively deny the presence of joint instability or a meniscal impairment affecting the Veteran’s right knee.  Since there is nothing in the claims file to contradict these findings, the Board determines that the evidence of record does not support the assignment of separate evaluations under Diagnostic Codes 5257, 5258, or 5259.   

Lastly, the Board recognizes the Veteran’s contention that the August 2018 VA examination was rushed and therefore inadequate.  Despite these claims, the examination report shows, and he himself admitted, that all required range of motion testing was conducted.  Although the Veteran continues to assert that his right knee condition is worse than the evaluation revealed, the Board reiterates that loss of range of motion serves as the primary factor by which his knee disability is rated.  While the Board acknowledges that the Veteran’s impairment certainly results in numerous restrictions, there is no evidence that range of motion in his right knee has been predominantly limited to a degree consistent with a 20 percent evaluation under Diagnostic Code 5260 or 5261.  As such, the Board finds that this allegation is without merit.         

For the reasons set forth above, the Board concludes that the evidence of record does not support the assignment of an evaluation in excess of 10 percent for the Veteran’s service-connected right knee impairment for any portion of the period on appeal.  To the extent that any higher level of compensation is sought, the preponderance of the evidence is against the claim.  Hence the benefit of the doubt rule does not apply.  Gilbert, 1 Vet. App. at 58.  Accordingly, the Veteran’s claim for a disability rating in excess of 10 percent for his service-connected right knee impairment is denied.   

b.	Left Knee Impairments

The Veteran seeks an increased evaluation for his service-connected left knee arthritis, which is currently rated at 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260.  See July 2014 rating decision.  Here, the use of a hyphenated diagnostic code indicates that the Veteran’s service-connected left knee condition has been rated on the basis of degenerative arthritis (Diagnostic Code 5003) and limitation of flexion (Diagnostic Code 5260). 

The Veteran also seeks an increased evaluation for his separately service-connected left knee meniscal condition, which is currently rated at 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5257.  See July 2014 rating decision.  

After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s service-connected left knee arthritis warrants a disability rating in excess of 10 percent for any portion of the period on appeal.  Similarly, the evidence of record does not support the application of a disability rating in excess of 10 percent for the Veteran’s service-connected left knee meniscal condition.   

Diagnostic Code 5260 permits the assignment of a 20 percent evaluation when there is evidence of flexion limited to 30 degrees or less.  However, throughout the entirety of the appeal period, the Veteran has never exhibited flexion less than 90 degrees in his left leg.  Although the November 2013 VA examination report indicates that pain on use and weightbearing contributed to additional functional loss, there is no evidence that flexion in the Veteran’s left knee is predominantly limited to 30 degrees or less.  This is consistent with the November 2013 VA examiner’s finding that pain, weakness, fatiguability, and incoordination would restrict flexion in the Veteran’s left knee to 90 degrees during a flare-up or with repeated use over time.  Given that he denied flare-ups of his left knee condition during the August 2018 VA examination, was well as the fact that the later evaluation did not reveal objective evidence of pain, the Board finds nothing to suggest that flexion in the Veteran’s left knee has been effectively reduced to 30 degrees or less.  DeLuca, 8 Vet. App. at 204-07.  The Board therefore concludes that the Veteran’s left knee arthritis does not warrant a higher disability rating under Diagnostic Code 5260 for any portion of the appeal period. 

Under Diagnostic Code 5261, a 20 percent evaluation is assigned when extension of the leg is limited to 15 degrees or greater.  However, during both the November 2013 and August 2018 VA examinations, the Veteran demonstrated extension to zero degrees.  While the November 2013 VA examiner determined that the Veteran could still extend to zero degrees even with pain on use and weightbearing, the August 2018 VA examination report reflects no objective evidence of pain.  Given the similar lack of any affirmative indications that pain, weakness, fatiguability, or incoordination would result in greater limitations during a flare-up or with repeated use over time, the Board finds nothing to suggest that extension in the Veteran’s left leg has been effectively reduced to 15 degrees or greater.  Id.  As such, he would not be entitled to a higher disability rating under Diagnostic Code 5261.  Moreover, though the Veteran claims some degree of restricted motion in his left leg, none of the available measurements fall within the compensable range of Diagnostic Code 5260 or 5261.  Therefore, as required by Diagnostic Code 5003, a single 10 percent evaluation has been assigned for arthritis accompanied by restricted motion not compensable under Diagnostic Code 5260 or 5261. 

The Board now turns to the Veteran’s service-connected left knee meniscal condition, recognizing that separate evaluations may be assigned for additional disability due to instability or a meniscal impairment under Diagnostic Codes 5257, 5258, or 5259.  Lyles, 29 Vet. App. 107.  Here, while the November 2013 and August 2018 VA examination reports confirm the existence of a meniscal condition in the Veteran’s left knee, both also indicate that this impairment is asymptomatic.  Because there is no evidence that the Veteran’s left knee meniscal condition results in episodes of locking, pain, and effusion into the joint, the Board concludes that a separate disability rating cannot be assigned under Diagnostic Code 5258 or 5259. 

Instead, the Veteran’s left knee meniscal condition has been rated under Diagnostic Code 5257 as analogous to knee instability.  In order to warrant a higher evaluation under this diagnostic code, the evidence of record must show “moderate” recurrent subluxation or lateral instability.  The Board notes that the only objective evidence of left knee instability was recorded by the November 2013 VA examiner, who measured a variance of zero to 5 millimeters; the Board points out that this designation is the smallest increment reflected on the evaluation form.  Indeed, despite performing the required joint stability tests, the August 2018 VA examiner found no evidence of instability in the Veteran’s left knee.  This fact suggests that the level of instability experienced by the Veteran is “slight” rather than “moderate” or “severe.”  Accordingly, the Board determines that the evidence of record does not support the assignment of a 20 percent disability rating for the Veteran’s left knee meniscal condition under Diagnostic Code 5257.        

The Board has also considered whether a separate evaluation might be assigned for the Veteran’s left knee surgical scar.  Although this scar was noted during the August 2018 VA examination, the report does not indicate that it is painful, unstable, or greater in total area than 39 square centimeters.  The Board thus concludes that a separate disability rating is not warranted for the Veteran’s left knee surgical scar under any of the relevant diagnostic codes.  38 C.F.R. § 4.118. 

Lastly, the Board acknowledges the Veteran’s contention that the August 2018 VA examination was rushed and therefore inadequate.  Despite these claims, the examination report shows, and he himself admitted, that all required range of motion testing was conducted.  Although the Veteran continues to assert that his left knee instability is worse than previously assessed, the Board reiterates that the November 2013 VA examination report showed a variance of only zero to 5 millimeters.  Indeed, his left knee instability was so slight that it was not even detected by the August 2018 VA examiner.  Since Veteran has not presented additional evidence to support his claim that his left knee instability is “moderate” or “severe,” the Board finds that this allegation is without merit.         

For the reasons set forth above, the Board concludes that the evidence of record does not support the assignment of an evaluation in excess of 10 percent for the Veteran’s service-connected left knee arthritis.  Similarly, the evidence of record is not consistent with the application of a disability rating in excess of 10 percent for his service-connected left knee meniscal condition.  To the extent that any higher level of compensation is sought for either appeal, the preponderance of the evidence is against the claim.  Hence the benefit of the doubt rule does not apply.  Gilbert, 1 Vet. App. at 58.  Accordingly, the Veteran’s claims for increased disability ratings for his service-connected left knee impairments are denied.   

  

IV.	Right Ankle Condition

The Veteran seeks an increased evaluation for his service-connected right ankle condition, which is currently rated at 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271.  See July 2014 rating decision.  Here, the use of a hyphenated diagnostic code indicates that the Veteran’s service-connected right ankle impairment has been rated on the basis of traumatic arthritis (Diagnostic Code 5010) and limitation of motion (Diagnostic Code 5271). 

Diagnostic Code 5271 assigns a 10 percent disability rating for moderate limitation of motion of the ankle and a 20 percent evaluation for marked limitation of motion of the ankle.

Normal or full range of motion for the ankle is dorsiflexion (extension) from zero to 20 degrees and plantar flexion from zero to 45 degrees.  38 C.F.R. § 4.71, Plate II.

During an appointment with his VA treating physician in May 2013, the Veteran reported increased right ankle pain.  However, he admitted that he had sprained it recently. 

A VA examination report from November 2013 reflects an in-person evaluation.  The examiner noted the Veteran’s diagnosis of post-operative right ankle arthritis; he reported flare-ups of this condition, which resulted in pain and limping.  Plantar flexion was measured to 35 degrees and dorsiflexion to 10 degrees.  Abnormal range of motion was not found to contribute to functional loss.  While the Veteran was able to complete repetitive use testing, the examiner noted that repetitive use resulted in additional functional loss; plantar flexion was measured to 35 degrees and dorsiflexion to 10 degrees.  Pain on motion and pain on weightbearing were found to contribute to additional functional loss, though no measurements were taken.  The examination report also reflects localized tenderness and pain on palpation in the Veteran’s lateral right ankle.  Indeed, his right ankle condition was found to result in pain on movement and instability of station.  Though pain, weakness, fatiguability, and incoordination were determined to significantly limit function ability during flare-ups and with repeated use over time, the examiner concluded that these factors would only restrict plantar flexion to 35 degrees and dorsiflexion to 10 degrees.  There was no evidence of diminished muscle strength, muscle atrophy, or ankylosis.  Testing revealed right ankle instability, which was lax compared to the opposite side.  Lastly, though the Veteran was noted to use a cane occasionally, this was due to his left knee impairment rather than his right ankle disability.  Based on these findings, the examiner concluded that the Veteran’s service-connected right ankle condition would not affect his ability to perform occupational tasks.

A VA examination report from August 2018 reflects review of the claims file and an in-person evaluation.  The examiner noted the Veteran’s prior diagnosis of a lateral collateral ligament sprain in his right ankle.  Though the Veteran denied experiencing flare-ups of this condition, he complained that it resulted in pain, decreased mobility, increased absenteeism and tardiness, and having to be assigned different duties at work.  Dorsiflexion was measured from zero to 10 degrees, with plantar flexion from zero to 45 degrees.  Range of motion was not found to contribute to functional loss.  There was no evidence of pain on weightbearing, pain on palpation, or localized tenderness.  Indeed, no pain or crepitus was noted during the examination.  The Veteran was also able to perform repetitive use testing without additional functional loss.  Though he was not examined immediately after repetitive use over time, the evaluation was found to be neither medically consistent nor inconsistent with the Veteran’s statements.  The examiner also could not opine whether pain, weakness, fatiguability, or incoordination would significantly limit functional ability with repeated use over time without resorting to mere speculation because there was no objective evidence upon which to base such a conclusion.  However, the Veteran’s service-connected right ankle condition was found to result in mild swelling.  Muscle strength testing was normal, with no indications of muscle atrophy, ankylosis, or shin splints.  Although joint instability or dislocation was suspected, all tests were negative.  The examiner noted the presence of a surgical scar on the Veteran’s right ankle, measuring 19 centimeters by 1 centimeter.  Nonetheless, this was not found to be painful, unstable, or greater in total area than 39 square centimeters.  Lastly, the Veteran did not use any assistive devices, and there was no evidence of traumatic or degenerative arthritis. Based on this evidence, the examiner determined that the Veteran’s service-connected right ankle condition would affect his ability to work.  Despite this, no additional details were provided.

During his January 2020 Board hearing, the Veteran alleged that the August 2018 VA examination was inadequate.  Although he claimed that the evaluation was rushed, he admitted that the examiner conducted range of motion testing.  However, the Veteran claimed that his right ankle has not been stable since the tendon was replaced.  He asserted that the joint “rolls.”  

After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s service-connected right ankle condition warrants a disability rating in excess of 10 percent for any portion of the period on appeal. 

To meet the requirements of the 20 percent evaluation under Diagnostic Code 5271, the evidence of record must show marked limitation of motion of the ankle.  Here, plantar flexion in the Veteran’s right ankle was measured at 35 degrees during the November 2013 VA examination and 45 degrees at the August 2018 VA examination.  Both examination reports reflect dorsiflexion in that joint from zero to 10 degrees.  While the August 2018 VA examiner found no objective evidence of pain, the November 2013 VA examination report indicates that pain, weakness, fatiguability, and incoordination would significantly limit functional ability during flare-ups and with repeated use over time.  Despite this, November 2013 VA examiner still concluded that these factors would only restrict plantar flexion to 35 degrees and dorsiflexion to 10 degrees. 

Although the evidence associated with the claims file is clear that the Veteran experiences some degree of limited motion in his right ankle, the Board determines that this is not suggestive of a marked disability.  Indeed, despite the indications of instability and the Veteran’s contention that his right ankle will “roll,” neither the November 2013 nor August 2018 VA examiner concluded that this impairment warranted the use of assistive devices.  Similarly, the November 2013 VA examination report suggests that what pain the Veteran does experience has little impact on his overall range of motion.  As such, the Board finds that the Veteran’s right ankle condition does not result in a marked limitation of motion.  For these reasons, entitlement to a disability rating in excess of 10 percent under Diagnostic Code 5271 is denied.     

The Board has also considered whether a separate evaluation might be assigned for the Veteran’s right ankle surgical scar.  Although this scar was noted during the August 2018 VA examination, the report does not indicate that it is painful, unstable, or greater in total area than 39 square centimeters.  The Board thus concludes that a separate disability rating is not warranted for the Veteran’s right ankle surgical scar under any of the relevant diagnostic codes.  38 C.F.R. § 4.118. 

Lastly, the Board acknowledges the Veteran’s contention that the August 2018 VA examination was rushed and therefore inadequate.  Despite these claims, the examination report shows, and he himself admitted, that all required range of motion testing was conducted.  Although the Veteran continues to assert that his right ankle will “roll,” the Board points out that this is not, by itself, indicative of a marked disability.  Additionally, since Veteran has not presented additional evidence to show worsening of his right ankle condition, the Board finds that this allegation is without merit. 

For the reasons set forth above, the Board concludes that the evidence of record does not support the assignment of an evaluation in excess of 10 percent for the Veteran’s service-connected right ankle condition for any portion of the period on appeal.  To the extent that any higher level of compensation is sought, the preponderance of the evidence is against the claim.  Hence the benefit of the doubt rule does not apply.  Gilbert, 1 Vet. App. at 58.  Accordingly, the Veteran’s claim for a disability rating in excess of 10 percent for his service-connected right ankle condition is denied.   

V.	Radiculopathy of the Lower Left Extremity

The Veteran seeks an increased evaluation for his service-connected radiculopathy of the lower left extremity, which is currently rated at 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8599-8520.  See July 2014 rating decision.  Here, the use of a hyphenated diagnostic code indicates that the Veteran’s service-connected radiculopathy of the lower left extremity has been rated on the basis of a general neurological condition (Diagnostic Code 8599) and paralysis of the sciatic nerve (Diagnostic Code 8520). 

Diagnostic Code 8520 addresses paralysis of the sciatic nerve.  38 C.F.R. § 4.124a.  Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve.  A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy.  An 80 percent rating is warranted with complete paralysis of the sciatic nerve.  

The term “incomplete paralysis,” with respect to peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the lesion or to partial regeneration.  Where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology.  38 C.F.R. § 4.124a. 

A VA examination report from November 2013 reflects an in-person evaluation.  Straight leg raising tests were negative bilaterally, with no evidence of pain in either of the Veteran’s lower extremities.  Reflex testing was likewise normal, but reduced sensation to light touch was noted in his left leg.  There was also mild paresthesias and mild numbness in this extremity.  Based on these findings, the examiner determined that the Veteran experienced radiculopathy, characterized by involvement of the sciatic nerve on the left side.  The overall severity of this condition was found to be mild.

During an appointment with his VA treating physician in July 2014, the Veteran reported spells of radicular pain in his legs. 

Private chiropractic treatment records dating between 2016 and early 2018 contain numerous references to sciatica.  Despite this, the attending chiropractor did not conduct a comprehensive evaluation of the Veteran’s radicular pain. 

In August 2018, the Veteran underwent a VA examination to assess the severity of his service-connected lumbar spine disorder.  However, straight leg raising tests were negative bilaterally, and the remainder of the examination report reflects no evidence of radiculopathy. 

The Veteran was also afforded a VA examination to assess the severity of his service-connected bilateral knee impairments in August 2018.  This evaluation found no evidence of muscle atrophy in his lower extremities. 

During his January 2020 Board hearing, the Veteran alleged that the August 2018 VA examination was inadequate.  He claimed that the examiner overlooked his statements concerning numbness in his left foot as well as sciatic pain throughout his lower left extremity.  Lastly, he asserted that because of his radiculopathy, his left calf had atrophied.  

A February 2020 letter from Dr. D.A. contains a report of physical examination conducted of the Veteran in In January 2020.   He complained of constant, shooting pain in his left leg, which he rated as ranging between 5 and 9 out of 10.  The Veteran also reported numbness and weakness throughout his lower left extremity, along with left calf atrophy.  Although Dr. D.A. noted weakness of the left hip flexor and left extensor hallucis longus, the examination report does not establish muscle atrophy in the Veteran’s left calf.      

After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s service-connected radiculopathy of the lower left extremity warrants a disability rating in excess of 10 percent for any portion of the period on appeal.  

To meet the requirements of the 20 percent disability rating under Diagnostic Code 8520, the evidence of record must show moderate incomplete paralysis of the sciatic nerve.  Here, the Board notes that the August 2018 VA examiner found no evidence of radicular symptoms affecting the Veteran’s left leg.  However, the November 2013 VA examiner determined that the Veteran’s radiculopathy of the lower left extremity was only mild in severity.  Although the Board is not bound by this determination, it nonetheless finds the conclusion of the November 2013 VA examiner to be consistent with the evidence of record.  

Indeed, the findings of the August 2018 VA examiner are not favorable to the Veteran since that examination does not reflect the existence of radiculopathy in his lower left extremity.  While the Veteran’s VA and private medical records reflect numerous complaints of sciatica, there are few indications of specialized neurological treatment and no evidence that he has ever been prescribed medication to manage this condition.  These factors suggest an overall lack of significant radicular symptomatology in the Veteran’s left leg, which aligns with the assessment of the November 2013 VA examiner.  

Although the Board recognizes that the Veteran reported constant, shooting pain during the January 2020 evaluation with Dr. D.A., it notes that the examination report contains few significant neurological findings.  While muscle weakness was present in the Veteran’s left hip and lower extremity, there was no evidence of muscle atrophy in his left calf; moreover, Dr. D.A. did not offer an opinion regarding the severity of his left leg sciatica.  Instead, she appears to have simply recorded his subjective complaints.  Given that these are inconsistent with the general lack of specialized treatment reflected in the remainder of the evidence of record, the Board finds that a higher disability rating is not warranted under Diagnostic Code 8520.    

Lastly, the Board acknowledges the Veteran’s contention that the August 2018 VA examination was rushed and therefore inadequate.  Despite these claims, the examination report shows that straight leg raising tests were conducted, which revealed no neurological abnormalities.  The Board has also considered the Veteran’s allegation that his service-connected radiculopathy caused his left calf to atrophy.  However, the August 2018 VA examiner found no evidence of muscle atrophy in either of his lower extremities.  Moreover, the Board points out that the Veteran has failed to substantiate his assertions by providing recent evidence showing either muscle atrophy or an increase in his radicular symptoms.  As such, the Board determines that his contentions are without merit. 

For the reasons set forth above, the Board concludes that the evidence of record does not support the assignment of an evaluation in excess of 10 percent for the Veteran’s service-connected radiculopathy of the lower left extremity for any portion of the period on appeal.  To the extent that any higher level of compensation is sought, the preponderance of the evidence is against the claim.  Hence the benefit of the doubt rule does not apply.  Gilbert, 1 Vet. App. at 58.  Accordingly, the Veteran’s claim for a disability rating in excess of 10 percent for his service-connected radiculopathy of the lower left extremity is denied.   

 

 

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans’ Appeals

MJS, Attorney for the Board	Department of Veterans Affairs

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.