Citation Nr: 21000769
Decision Date: 01/06/21	Archive Date: 01/06/21

DOCKET NO. 06-24 169
DATE: January 6, 2021

ORDER

Entitlement to an initial disability rating in excess of 20 percent for the service-connected left shoulder strain is denied.

Entitlement to an initial disability rating in excess of 20 percent prior to July 2, 2019 for the service-connected lumbosacral strain with spondylolisthesis is denied.

Entitlement to an increased disability rating in excess of 40 percent since July 2, 2019 for the service-connected lumbosacral strain with spondylolisthesis is denied.

Entitlement to an initial disability rating in excess of 20 percent prior to July 2, 2019 for the service-connected left sciatic radiculopathy is denied.

Entitlement to an increased disability rating in excess of 40 percent since July 2, 2019 for the service-connected left sciatic radiculopathy is denied.

Entitlement to an initial compensable disability rating for the service-connected left hip limited flexion is denied.

Entitlement to an initial disability rating in excess of 10 percent for the service-connected left hip degenerative joint disease is denied.

Entitlement to a compensable disability rating prior to August 6, 2014 for the service-connected left knee instability is denied.

Entitlement to a 20 percent disability rating since August 6, 2014 for the service-connected left knee instability is granted.

Entitlement to an increased disability rating in excess of 20 percent since August 6, 2014 for the service-connected left knee instability is denied.

Entitlement to an increased disability rating in excess of 10 percent prior to May 24, 2016 for the service-connected left knee degenerative arthritis with history of Osgood Schlatter's disease is denied.

Entitlement to an increased disability rating in excess of 20 percent from May 24, 2016 to July 1, 2019 for the service-connected left knee degenerative arthritis with history of Osgood Schlatter's disease is denied.

Entitlement to an increased disability rating in excess of 30 percent since July 2, 2019 for the service-connected left knee degenerative arthritis with history of Osgood Schlatter's disease is denied.

Entitlement to an effective date earlier than November 26, 2013 for the grant of service connection for the lumbosacral strain with spondylolisthesis is denied.

Entitlement to an effective date earlier than November 26, 2013 for the grant of service connection for the left sciatic radiculopathy is denied.

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to November 26, 2013, is remanded.

FINDINGS OF FACT

1. Throughout the entire period on appeal, the Veteran’s service-connected left shoulder strain has not been manifested by limitation of motion of the minor arm to 25 degrees from the side.

2. Prior to July 2, 2019, the Veteran’s service-connected lumbosacral strain with spondylolisthesis was manifested by no worse than limitation of flexion to 60 degrees or less and a combined range of motion equivalent to 165 degrees or 120 degrees with pain; forward flexion limited to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, and/or incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months have not been demonstrated.

3. Since July 2, 2019, the Veteran’s service-connected lumbosacral strain with spondylolisthesis was manifested by no worse than limitation of flexion to 30 degrees or less; ankylosis or incapacitating having a total duration of at least six weeks during the past 12 months have not been demonstrated.

4. Prior to July 2, 2019, the Veteran’s service-connected left sciatic radiculopathy has been manifested by no worse than moderate incomplete paralysis; moderately severe incomplete paralysis has not been demonstrated.

5. Since July 2, 2019, the Veteran’s service-connected left sciatic radiculopathy has been manifested by no worse than moderately severe incomplete paralysis; severe incomplete paralysis with marked muscular atrophy has not been demonstrated.

6. Throughout the entire appeal period, the Veteran’s service-connected left hip limited flexion was manifested by no worse than limitation of flexion to 80 degrees; flexion of the left hip limited to 45 degrees or less, objective evidence of ankylosis of the left hip, flail hip joint or impairment of the femur have not been demonstrated.

7. Throughout the entire appeal period, the Veteran’s service-connected left hip degenerative joint disease was manifested by no worse painful motion with limitation of rotation and limitation of adduction such that he cannot cross legs; objective evidence of ankylosis of the left hip, flail hip joint or impairment of the femur have not been demonstrated.

8. Prior to August 6, 2014, the Veteran’s service-connected left knee instability was not manifested by slight lateral instability nor was there evidence of recurrent subluxation.

9. Beginning August 6, 4014, the Veteran’s service-connected left knee instability was manifested by moderate lateral instability; severe lateral instability has not been demonstrated.

10. Prior to May 24, 2016, the Veteran’s service-connected left knee degenerative arthritis with history of Osgood Schlatter’s disease was manifested by no worse than flexion to 70 degrees and extension to zero degrees; there was no evidence of flexion limited to 30 degrees.

11. From May 24, 2016, until July 1, 2019, the Veteran’s service-connected left knee degenerative arthritis with history of Osgood Schlatter’s disease was manifested by no worse than flexion to 35 degrees and extension to zero degrees; there was no evidence of flexion limited to 15 degrees.

12. Since July 2, 2019, the Veteran’s service-connected left knee degenerative arthritis with history of Osgood Schlatter’s disease was manifested by no worse than flexion to 70 degrees and extension to 20 degrees; there was no evidence of extension limited to 30 degrees.

13. The RO construed the Veteran’s counsel’s statement received on November 26, 2013, as a claim of entitlement to service connection for a lumbar spine disability.

14. The RO granted service connection for lumbosacral strain with spondylolisthesis effective from November 26, 2013, in a November 2014 rating decision.

15. The weight of the evidence shows that no formal claim, informal claim, or written intent to file a claim of entitlement to service connection for a lumbar spine disability was presented to VA prior to November 26, 2013.

16. The RO granted service connection for left sciatic radiculopathy associated with lumbosacral strain with spondylolisthesis effective from November 26, 2013, in a November 2014 rating decision.

17. The weight of the evidence shows that no formal claim, informal claim, or written intent to file a claim of entitlement to service connection for a lumbar spine disability or left sciatic radiculopathy was presented to VA prior to November 26, 2013.

CONCLUSIONS OF LAW

1. Throughout the entire period on appeal, the criteria for an initial disability rating in excess of 20 percent for the service-connected left shoulder strain have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201.

2. Prior to July 2, 2019, the criteria for an initial disability rating in excess of 20 percent for the service-connected lumbosacral strain with spondylolisthesis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237.

3. Since July 2, 2019, the criteria for an increased disability rating in excess of 40 percent for the service-connected lumbosacral strain with spondylolisthesis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237.

4. Prior to July 2, 2019, the criteria for an initial disability rating in excess of 20 percent for the service-connected left sciatic radiculopathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520.

5. Since July 2, 2019, the criteria for an increased disability rating in excess of 40 percent for the service-connected left sciatic radiculopathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520.

6. Throughout the entire period on appeal, the criteria for an initial compensable disability rating for the service-connected left hip limited flexion have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5252.

7. Throughout the entire period on appeal, the criteria for an initial disability rating in excess of 10 percent for the service-connected left hip degenerative joint disease have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253.

8. Prior to August 6, 2014, the criteria for a compensable disability rating for the service-connected left knee instability have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257.

9. Beginning August 6, 2014, the criteria for a 20 percent disability rating for the service-connected left knee instability have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257.

10. Prior to May 24, 2016, the criteria for an increased disability rating in excess of 10 percent for the service-connected left knee degenerative arthritis with history of Osgood Schlatter’s disease have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5261.

11. From May 24, 2016 until July 1, 2019, the criteria for an increased disability rating in excess of 20 percent for the service-connected left knee degenerative arthritis with history of Osgood Schlatter’s disease have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5261.

12. Since July 2, 2019, the criteria for an increased disability rating in excess of 30 percent for the service-connected left knee degenerative arthritis with history of Osgood Schlatter’s disease have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5261.

13. The criteria for an effective date earlier than November 26, 2013 for the grant of service connection for lumbosacral strain with spondylolisthesis have not been met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 

14. The criteria for an effective date earlier than November 26, 2013 for the grant of service connection for the left sciatic radiculopathy have not been met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1976 to September 1979.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2005 (increased rating for left knee) and November 2014 (grants of service connection for left shoulder, left hip, lumbar spine and left sciatic radiculopathy) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

In an October 2010 decision, the Board denied the Veteran’s claim for an increased rating for the service-connected left knee disability.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) and in a joint motion for remand (JMR), the parties requested the October 2010 Board decision be vacated and remanded.  An August 2011 Court order granted the joint motion.

In January 2012 and August 2014, the Board remanded the Veteran’s claims for an increased rating for a left knee disability and TDIU for further development.  In a June 2016 rating decision, the RO assigned a 20 percent disability rating for the Veteran’s left knee degenerative arthritis with a history of Osgood Schlatter’s disease, effective from May 24, 2016.  The RO also granted service connection for left knee instability and assigned a 20 percent disability rating, effective from that same date.  In an August 2016 rating decision, the RO granted TDIU effective from November 26, 2013.  

These matters were previously remanded by the Board in June 2018.  Thereafter, pursuant to a June 2020 rating decision, the RO assigned a 30 percent disability rating for the Veteran’s left knee degenerative arthritis with a history of Osgood Schlatter’s disease, effective from July 2, 2019; a 20 percent disability rating for the Veteran’s lumbosacral strain with spondylolisthesis, effective from July 2, 2019; a 40 percent disability rating for the Veteran’s left sciatic radiculopathy, effective from July 2, 2019; and awarded service connection for left lip limited extension with a 10 percent disability rating, effective from July 2, 2019.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity.  See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Thus, separate ratings can be assigned for separate periods of time based on the facts found—a practice known as “staged” ratings.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 127 (1999).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40.

Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use.  The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups.  However, those provisions should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion.  38 C.F.R. §§ 4.40, 4.45.  The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.

1. Entitlement to an initial disability rating in excess of 20 percent for the service-connected left shoulder strain is denied.

Service connection for left shoulder strain was originally awarded in a November 2014 rating decision, which is the subject of this appeal, and a 20 percent disability rating was assigned from November 26, 2013, pursuant to Diagnostic Code 5201 based on limitation of motion.

For impairment of an upper extremity, the disability rating depends on whether the extremity is the major or minor extremity.  The major extremity is the one predominantly used by the Veteran and only one extremity may be considered major.  See 38 C.F.R. § 4.69.  The Veteran is right-hand dominant, and the evaluations are assigned based on the minor extremity.

Under Diagnostic Code 5201, a 20 percent rating is warranted for limitation of motion of the minor arm at shoulder level and midway between side and shoulder level.  A 30 percent rating is warranted for limitation of motion of the minor arm to 25 degrees from side.  38 C.F.R. § 4.71a, Diagnostic Code 5201.

Regulations define the normal range of motion for the shoulder as forward flexion from 0 to 180 degrees, abduction from 0 to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I.

The Veteran underwent VA shoulder examination in August 2014.  At that time, he reported flare-ups causing limited range of motion.  Range of motion testing for the left shoulder revealed flexion to 90 degrees with pain at 80 degrees, abduction to 70 degrees with pain at 65 degrees, external rotation to 70 degrees with pain at 60 degrees and internal rotation to 70 degrees with pain at 60 degrees.  The Veteran was able to perform repetitive-use testing without any additional limitation in range of motion of the shoulder.  However, the examiner reported the Veteran with functional loss and/or functional impairment of the left shoulder with contributing factors of weakened movement, less movement than normal and pain on movement.  The examiner also remarked that there are contributing factors of pain, weakness, fatigability and/or incoordination and there is additional limitation of functional ability of the shoulder during flare-ups or repeated use over time.  The examiner stated that the degree of range of motion loss during pain on use or flare-ups is approximately 10 degrees in all range of motion measurements.  

The examiner observed pain on palpation and guarding of the left shoulder.  Muscle strength testing was normal and there was no evidence of ankylosis.  The Veteran was unable to perform specific tests for rotator cuff conditions, instability/dislocation/labral pathology, and clavicle, scapula, acromioclavicular (AC) joint, and sternoclavicular joint conditions for the left shoulder.  The examiner observed tenderness on palpation of the left AC joint.  There were no other pertinent physical findings, complications, conditions, sighs and/or symptoms.  Imaging studies did not reveal degenerative arthritis.  The examiner diagnosed left shoulder sprain and determined that the condition impacted the Veteran’s ability to work, described as causing a moderate impairment.

The Veteran underwent a VA shoulder examination in July 2019.  At that time, he reported his condition has gradually worsened with time with current symptoms of pain, stiffness, decreased mobility, and trouble lifting arm above shoulder.  He did not report any flare-ups that impact the function of the shoulder but did report having functional loss/functional impairment, descried as the inability to lift heavy, work above head, and pulling.  Range of motion testing for the left shoulder revealed flexion to 110 degrees, abduction to 100 degrees, external rotation to 70 degrees and internal rotation to 75 degrees.  Pain, to include pain when the shoulder is used in nonweight-bearing was noted on examination at flexion and abduction.  

Range of motion testing was the same on passive range of motion testing with objective evidence of pain present at the same planes as active range of motion.  The examiner reported that the abnormal range of motion contributed to functional loss.  There was no objective evidence of tenderness or pain on palpation, crepitus or pain on weight-bearing.  The Veteran was able to perform repetitive-use testing without any additional limitation in range of motion of the shoulder.  The examiner reported that the Veteran was not being examiner immediately after repetitive use over time or during a flare-up, but the examination is medically consistent with the Veteran’s statements describing functional loss with repeated use over time and during flare-up.  The examiner reported that pain, fatigue, weakness and lack of endurance significantly limit functional ability with repeated use over time.  In terms of range of motion, the examiner described flexion to 90 degrees, abduction to 90 degrees, external rotation to 70 degrees and internal rotation to 65 degrees.  There were no factors that significantly limited functional ability with flare-ups.  

Muscle strength testing was normal for the left shoulder.  The examiner reported no muscle atrophy or ankylosis.  The examiner suspected a rotation cuff condition was present but specific tests were negative for a rotator cuff condition.  Shoulder instability, dislocation or labral pathology was not suspected nor were clavicle, scapula, AC joint or sternoclavicular joint conditions.  The Veteran did not have any loss of head, nonunion or fibrous union of the humerus nor did he have malunion of the humerus with moderate or marked deformity.  There were no other pertinent physical findings, complications, conditions, sighs and/or symptoms.  The Veteran did not use any assistive device.  Imaging studies of the shoulder were not performed.  The examiner diagnosed left shoulder strain and determined that the condition impacted his ability to work.  The examiner explained that the Veteran’s ability to perform sedentary employment is mildly impaired and his ability to perform physical activity of employment is moderately impaired.  The examiner remarked that there is a worsening of the Veteran’s symptoms; however, no change to the service-connected diagnosis and no additional diagnoses have been rendered.

The Board notes that VA treatment records throughout the period on appeal show the Veteran has continuously complained of left shoulder pain and providers have noted limited range of motion of the left shoulder. 

The Board has considered the effects of the Veteran’s symptoms, including pain and functional loss, and the Board concludes that the preponderance of the evidence is against a finding of limitation of motion of the minor arm to 25 degrees from the side, which is the criteria needed for a 30 percent rating.  Examination results throughout the appeal period show that the Veteran with no atrophy in the extremity.  The Board acknowledges that the Veteran experienced decreased range of motion in his left shoulder; however, taking into account the evidence of record documenting the Veteran’s complaints of pain and other findings of functional loss, the Board finds that the evidence does not reflect that such pain and functional limitations resulted in the functional equivalent to limitation of the arm to 25 degrees from the side, which would be required for a finding that the Veteran was entitled to a 30 percent disability rating, even considered the additional functional loss noted after repetitive testing.  Accordingly, a disability rating in excess of 20 percent is not warranted throughout the entire period on appeal. 

The Board has also considered whether a higher rating may be granted on any other basis but has found none.  Notably, the evidence does not suggest that the Veteran’s service-connected left shoulder strain has been productive of ankylosis of the scapulohumeral articulation, other impairment of the humerus or other impairment of the clavicle or scapula.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202-03.  As such, a rating in excess of 20 percent is denied.

2. Entitlement to an initial disability rating in excess of 20 percent prior to July 2, 2019 for the service-connected lumbosacral strain with spondylolisthesis is denied.

3. Entitlement to an increased disability rating in excess of 40 percent since July 2, 2019 for the service-connected lumbosacral strain with spondylolisthesis is denied.

Service connection for lumbosacral strain with spondylolisthesis was established in a November 2014 rating decision, which is the subject of this appeal, and the RO assigned a 20 percent evaluation, effective November 26, 2013.  The Veteran disagreed with the initial disability evaluation for his lumbar spine and per a June 2020 rating decision, a 40 percent rating was assigned for the lumbar spine disability, effective from July 2, 2019.  The Veteran’s lumbar spine disability is rated under Diagnostic Code 5237 pursuant to the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a, Diagnostic Code 5237.  In rating the lumbar spine disability, either of two sets of criteria may be applied.  The disc disease may be rated based on the cumulative amount of time in which the condition was incapacitating over the prior 12 months or based upon the degree of limitation of motion.  38 C.F.R. § 4.71a.  

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is assigned a 40 percent rating.  A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a.  An “incapacitating episode” is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  See 38 C.F.R. § 4.71a, Note (1).

The Board notes that VA examinations of record do note intervertebral disc syndrome of the thoracolumbar spine.  In this regard, the August 2014 VA examiner did report the Veteran’s intervertebral disc syndrome of the thoracolumbar spine with incapacitating episodes with a total duration of at least one week but less than two weeks in the past 12 months.  Post-service treatment records reflect no periods of bed rest or total incapacitation.  However, as there is no evidence of record showing the Veteran having incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months such that the criteria for a 40 percent rating would be warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, evaluation under these criteria is therefore not appropriate.  Instead, evaluation under the General Rating Formula for Diseases and Injuries of the Spine is proper.

Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, and they “are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.”  68 Fed. Reg. 51,454 (Aug. 27, 2003).  Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code.  38 C.F.R. § 4.71a, Note (1).

The General Rating Formula provides a 20 percent rating for 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.  A 40 percent evaluation requires either that forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or that favorable ankylosis of the entire thoracolumbar spine is shown.  Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling.  38 C.F.R. § 4.71a.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, normal left and right lateral rotation is zero to 30 degrees, and normal combined range of motion of the thoracolumbar spine is 240 degrees.  38 C.F.R. § 4.71a, Note (2).  Further, all measured ranges of motion should be rounded to the nearest five degrees.  38 C.F.R. § 4.71a, Note (4).  Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position.  Unfavorable ankylosis exists where the fixation is 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; and/or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis.  38 C.F.R. § 4.71a, Note (5).

A.	Prior to July 2, 2019

VA treatment records indicate that the Veteran has reported chronic low back pain and treatment has included various medications and manipulations.

Upon VA examination in August 2014, the Veteran reported flare-ups with an impact as limited range of motion and pain.  Range of motion testing reflected forward flexion to 60 degrees with pain at 50 degrees, extension to 15 degrees with pain at 10 degrees, right lateral rotation to 25 degrees with pain at 20 degrees, left lateral rotation to 25 degrees with pain at 20 degrees, and right and left lateral flexion to 20 degrees with pain at 10 degrees.  The combined range of motion was equivalent to 165 degrees or 120 with pain.  The Veteran was able to perform repetitive testing with at least three repetitions without any additional limitation in range of motion.  

The examiner reported the Veteran with functional loss/impairment of the spine with contributing factors of less movement than normal and pain on movement.  The examiner reported no localized tenderness or pain to palpation nor guarding or muscle spasm.  Muscle strength testing was normal and there was no muscle atrophy reported.  Gait was antalgic and the examiner noted this was due to left knee instability.  The examiner further reported additional contributing factors of pain, weakness, fatigability and/or incoordination and an additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time.  The examiner stated that the degree of range of motion loss during pain on repeated use or during flare-ups is approximately 10 degrees in all range of motion measurements.  There were no other neurologic abnormalities.  

As mentioned, the examiner reported the Veteran with intervertebral disc syndrome of the thoracolumbar spine with incapacitating episodes having a total duration of at least one week but less than two weeks in the past 12 months.  The examiner stated that the Veteran used a cane regularly for his left knee stability.  Imaging studies documented arthritis, but the examiner reported no vertebral fracture and no other significant diagnostic test findings.  The examiner diagnosed lumbar spine degenerative joint disease with intervertebral disc syndrome involving the left sciatic nerve.  The examiner determined that the Veteran’s lumbar spine condition moderately impacted his ability to work.

Upon review of the evidence of record, the Board finds that prior to July 2, 2019, forward flexion is demonstrated to be limited to 60 degrees or less (at worst 50 degrees with repeated use over time and during flare-up) and a combined range of motion equivalent to 165 degrees or 120 degrees with pain.  These findings are consistent with a 20 percent disability rating; not a rating in excess of 20 percent.  

Even considering the provisions of 38 C.F.R. § 4.40, 4.45, and 4.59, and the holdings in DeLuca and Mitchell, an increased evaluation for the Veteran’s service-connected lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness.  For a higher rating, the evidence would need to show the Veteran with either forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; however, such has not been demonstrated.  Nor is a higher rating warranted under the IVDS Formula.  In this regard, while the August 2014 VA examination did note intervertebral disc syndrome of the thoracolumbar spine with incapacitating episodes having a total duration of at least one week but less than two weeks in the past 12 months, there is no evidence of record showing the Veteran having incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months such that the criteria for a 40 percent rating would be warranted.  In addition, post-service treatment records do not reflect periods of total incapacitation or that any bed rest was prescribed.  Thus, a rating in excess of 20 percent is not warranted prior to July 2, 2019.

As a final matter, the Board notes that the Veteran is already separately rated for left sciatic radiculopathy associated with his service-connected lumbar spine disability.  Whether the Veteran’s service-connected left sciatic radiculopathy warrants an increased disability rating is before the Board and is discussed below.  No other neurological disabilities associated with his lumbar spine disability have been shown. 

In sum, the most probative evidence does not reach the level of equipoise to warrant the assignment of a disability rating in excess of 20 percent for the service-connected lumbar spine disability prior to July 2, 2019.

B.	Since July 2, 2019

Upon VA examination in July 2019, the Veteran reported a worsening of his condition with current symptoms of pain, stiffness, and the inability to do any significant activities without pain and triggering a flare-up.  The Veteran reported flare-ups, manifested by severe pain that he cannot ge out of bed, lasting for two to three days.  He also reported functional loss/impairment of the inability to walk, sit or stand for long and the inability to lift.  Range of motion testing reflected forward flexion to 40 degrees, extension to 10 degrees, right lateral rotation to 15 degrees, left lateral rotation to 15 degrees, and right and left lateral flexion to 15 degrees.  The combined range of motion was equivalent to 110 degrees.  The examiner reported that the abnormal range of motion contributed to a functional loss and explained that the Veteran was unable to reach below the waistline.  Pain, which causes functional loss, was noted on examination for forward flexion, extension, and right and left lateral flexion.  There was no evidence of localized tenderness or pain on palpation nor evidence of pain with weight-bearing.  The examiner noted pain when the back is used in nonweight-bearing.  Passive range of motion values were the same as active range of motion and pain on passive range of motion was present at the same planes as on active range of motion.  The Veteran was able to perform repetitive testing with at least three repetitions without any additional limitation in range of motion.  

The Veteran was not being examined immediately after repeated use over time or during a flare-up, but the examiner reported the examination is medically consistent with the Veteran’s statements describing functional loss with repeated use over time and during flare-up.  The examiner reported that pain, fatigue, weakness and lack of endurance significantly limited functional ability with repeated use over time and during flare-up.  In terms of range of motion, the examiner described the functional loss as forward flexion to 30 degrees, extension to 0 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 15 degrees with repeated use over time.  The combined range of motion was equivalent to 80 degrees.  In terms of range of motion during flare-up, the examiner described the functional loss as forward flexion to 30 degrees, extension to 0 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 10 degrees.  The combined range of motion was equivalent to 70 degrees.  The examiner reported no muscle spasm but observed guarding not resulting in abnormal gait or abnormal spinal contour.  There were no additional factors contributing to the disability.  

Muscle strength testing was normal for the bilateral hips, bilateral knees, right ankle dorsiflexion, and right great toe extension.  However, there was active movement with gravity eliminated for the left ankle dorsiflexion and active movement against some resistance for the left ankle plantar flexion and left great toe extension.  The examiner reported muscle atrophy in the left calf, with measurements of 40 centimeters for the normal side and 37 centimeters for atrophied side.  The examiner reported no ankylosis of the spine. There were no other neurologic abnormalities and the examiner determined the Veteran did not have intervertebral disc syndrome.  The Veteran was noted to use a brace constantly to support the left ankle weakness caused by the left sciatica.  There were no other pertinent physical findings, complications, conditions, signs, symptoms or scars.  The examiner noted imaging studies were available, but arthritis was not documented.  The Veteran did not have a thoracic vertebral fracture with loss of 50 percent or more of height.  The examiner noted there were other significant diagnostic test findings and referenced a January 2018 MRI of the lumbar spine which revealed L3 pars defects with grade 1 anterolisthesis L3 on L4, pseudo bulge with superimposed broad-based protrusion and annular fissure at L3-L4 which results in severe spinal canal stenosis and severe right neural foraminal stenosis.  

The examiner determined that the condition impacted the Veteran’s ability to work and opined that the Veteran’s ability to perform sedentary activity of employment is moderately impaired while his ability to perform physical activity of employment is severely impaired.  The examiner diagnosed lumbosacral strain, spondylolisthesis and lumbar spine radiculopathy involving the left sciatic nerve.  The examiner remarked that the new diagnosis is a corrected of the previous diagnosis and explained that history of recurrent low back pain is a non-specific diagnosis and the current diagnosis better reflects the Veteran’s condition.

VA treatment records indicate that the Veteran has reported chronic low back pain and treatment has included various medications and manipulations.

Upon review of the evidence of record, the Board finds that since July 2, 2019, forward flexion is demonstrated to be at worst, limited to 30 degrees or less.  These findings are consistent with a 40 percent disability rating; not a rating in excess of 40 percent.  Even considering the provisions of 38 C.F.R. § 4.40, 4.45, and 4.59, and the holdings in DeLuca and Mitchell, an increased evaluation for the Veteran’s service-connected lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness, as the Veteran is evaluated at the highest rating available based on limitation of motion.  For a higher rating, the evidence would need to show the Veteran with ankylosis; however, such has not been demonstrated.  Nor is a higher rating warranted under the IVDS Formula as there is no evidence of record showing the Veteran having incapacitating episodes with a total duration of at least six weeks during the past 12 months such that the criteria for a 60 percent rating would be warranted.  Thus, a rating in excess of 40 percent is not warranted during the entire period on appeal.

As a final matter, the Board notes that the Veteran is already separately rated for left sciatic radiculopathy associated with his service-connected lumbar spine disability.  Whether the Veteran’s service-connected left sciatic radiculopathy warrants an increased disability rating is before the Board and is discussed below.  No other neurological disabilities associated with his lumbar spine disability have been shown. 

In sum, the most probative evidence does not reach the level of equipoise to warrant the assignment of a disability rating in excess of 40 percent for the service-connected lumbar spine disability since July 2, 2019.

4. Entitlement to an initial disability rating in excess of 20 percent prior to July 2, 2019 for the service-connected left sciatic radiculopathy is denied.

5. Entitlement to an increased disability rating in excess of 40 percent since July 2, 2019 for the service-connected left sciatic radiculopathy is denied.

Service connection was established for the Veteran’s left sciatic radiculopathy in a November 2014 rating decision, which is the subject of this appeal and is rated as 20 percent disabling, effective from November 26, 2013.  Thereafter, a 40 percent rating was assigned since July 2, 2019 pursuant to a June 2020 rating decision.  The left sciatic radiculopathy, associated with the lumbar spine disability, is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520 for paralysis of the sciatic nerve.  Under these criteria, moderate incomplete paralysis is rated as 20 percent disabling.  Moderately severe incomplete paralysis is rated as 40 percent disabling.  Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling.  Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling.  38 C.F.R. § 4.124a.

The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule.  Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance.  38 C.F.R. § 4.120.  Consideration is also given for loss of reflexes, pain, and muscle atrophy.  See 38 C.F.R. §§ 4.123, 4.124.

The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree.  The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor.  38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.”  The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory.  See Miller v. Shulkin, 28 Vet. App. 376 (2017). 

The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement.  See 38 C.F.R. § 4.123.

A.	Prior to July 2, 2019

Treatment records indicate that the Veteran has reported radiculopathy symptoms of his left lower extremity and treatment has included various medications and manipulations.

Upon VA lumbar spine examination in August 2014, reflex examination was hypoactive for the left knee and ankle.  Sensory examination was normal for the left upper anterior thigh (L2) and decreased for the left thigh/knee (L3/4), lower leg/ankle (L4/L5/S1) and the left foot/toes (L5).  Straight leg testing was positive for the left.  The examiner reported the Veteran with radiculopathy manifested by intermittent pain of moderate severity in the left lower extremity, paresthesias and/or dysesthesias of mild severity in the left lower extremity and numbness of mild severity in the left lower extremity.  The examiner reported the radiculopathy involved the L4/L5/S1/S2/S3 nerve roots and was of mild severity for the left side.  There were no other signs or symptoms of radiculopathy and no other neurologic abnormalities.

After careful review of the record, the Board finds that the most probative evidence does not warrant increased ratings in excess of 20 percent for the Veteran’s left sciatic radiculopathy.  Prior to July 2, 2019, the Veteran’s left sciatic radiculopathy manifested functional impairment equivalent to moderate incomplete paralysis, which is contemplated by the 20 percent rating assigned.  38 C.F.R. § 4.124a, Diagnostic Code 8520.  Specifically, the Board notes that the August 2014 VA examiner determined that the Veteran’s left sciatic radiculopathy was of mild severity.  In addition, the Veteran’s VA treatment records also indicate no more than mild severity of the left sciatic radiculopathy.  Considering the foregoing, and the entirety of the record, the most probative evidence does not reflect functional impairment equivalent to moderately severe incomplete paralysis during the period prior to July 2, 2019.  Accordingly, the Board finds that a rating in excess of 20 percent is not warranted prior to July 2, 2019.

B.	Since July 2, 2019

Upon VA lumbar spine examination in July 2019, the Veteran reported his condition had worsened and affected his left leg with weakness of the foot and having to use prosthesis to walk.  Symptoms included pain, stiffness, and the inability to do any significant activities without pain triggering a flare-up.  Reflex examination was hypoactive for the left knee and absent for the left ankle.  Sensory examination showed decreased sensation to light tough for the left upper anterior thigh (L2) and left thigh/knee (L3/4).  Sensation was absent for the left lower leg/ankle (L4/L5/S1) and left foot/toes (L5).  Straight leg testing was positive for the left side.  The examiner reported the Veteran with radiculopathy manifested by constant pain of mild severity in the left lower extremity, severe intermittent pain in the left lower extremity, moderate paresthesias and/or dysesthesias in the left lower extremity and numbness of moderate severity in the left lower extremity.  The examiner reported the radiculopathy involved the L4/L5/S1/S2/S3 nerve roots and was severe for the left side.  There were no other signs or symptoms of radiculopathy and no other neurologic abnormalities reported.  Muscle strength testing was normal.  However, there was active movement with gravity eliminated for the left ankle dorsiflexion and active movement against some resistance for the left ankle plantar flexion and left great toe extension.  The examiner reported muscle atrophy in the left calf, with measurements of 40 centimeters for the normal side and 37 centimeters for atrophied side.  The Veteran was noted to use a brace constantly to support the left ankle weakness caused by the left sciatica.  

After careful review of the record, the Board finds that the most probative evidence does not warrant an increased rating in excess of 40 percent for the Veteran’s left sciatic radiculopathy since July 2, 2019.  In this regard, during the period on appeal, the Veteran’s left sciatic radiculopathy manifested functional impairment equivalent to a moderately severe incomplete paralysis, which is contemplated by the 40 percent rating assigned.  38 C.F.R. § 4.124a, Diagnostic Code 8520.  While the findings of the July 2019 VA examiner indicates that the Veteran manifested severe left sciatic radiculopathy and noted muscle atrophy in the left calf, with measurements of 40 centimeters for the normal side and 37 centimeters for atrophied side, there is no evidence of severe incomplete paralysis with marked muscle atrophy, which is what is required to assign the next highest 60 percent rating.  In addition, the Veteran’s treatment records also indicate no more than moderate severity of the left sciatic radiculopathy.  Considering the foregoing, and the entirety of the record, the most probative evidence does not reflect functional impairment equivalent to severe incomplete paralysis with marked muscle atrophy during the period on appeal.  Accordingly, the Board finds that a rating in excess of 40 percent is not warranted since July 2, 2019.

In sum, the most probative evidence does not reach the level of equipoise as to whether the Veteran exhibited functional impairment to the extent that an initial disability rating in excess of 20 percent prior to July 2, 2019 for the left sciatic radiculopathy and in excess of 40 percent since that time, may be assigned.

6. Entitlement to an initial compensable disability rating for the service-connected left hip limited flexion is denied.

7. Entitlement to an initial disability rating in excess of 10 percent for the service-connected left hip degenerative joint disease is denied.

Service connection for left hip limited flexion associated with history of Osgood Schlatter’s disease of the left knee was originally granted in a November 2014 rating decision, which is the subject of this appeal and a noncompensable rating was assigned, effective from February 5, 2013.  Service connection for left hip degenerative joint disease associated with history of Osgood Schlatter’s disease of the left knee was also granted in the November 2014 rating decision and a 10 percent disability rating was assigned from February 5, 2013 based on painful motion of the hip with additional symptoms of limitation of abduction of the thigh, motion possible beyond 10 degrees; limitation of adduction of the thigh, can cross legs; limitation of internal rotation of the thigh; and limitation of rotation of the thigh, can toe-out more than 15 degrees on the affected leg.  The Veteran’s left hip limited flexion is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5252 and his left hip degenerative joint disease is rated pursuant to Diagnostic Code 5253 for impairment of the thigh based on limitation of adduction.

Initially, the Board notes that the Veteran was granted a separate rating for left hip limitation of extension.  That issue is not presently in appellate status before the Board.  Thus, manifestations associated with that condition cannot be considered when addressing the evaluation of his left hip limitation of flexion.  See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided).

Limitation of hip flexion is rated under Diagnostic Code 5252, which provides for 10, 20, 30, and 40 percent evaluations when hip flexion is limited to 45, 30, 20, and 10 degrees, respectively.  38 C.F.R. § 4.71a, Diagnostic Code 5252.

Diagnostic Code 5252 provides for impairment of the thigh and assigns 10, 1-10 and 20 percent evaluations for limitation of rotation of, cannot tor-out more than 15 degrees; limitation of adduction of, cannot cross legs; and limitation of abduction of, motion lost beyond 10 degrees, respectively.

Diagnostic Code 5250 provides a 60 percent rating for favorable ankylosis of the hip in flexion at an angle between 20 degrees and 40 degrees and slight adduction or abduction; a 70 percent rating for intermediate ankylosis; and a 90 percent rating for extremely unfavorable ankylosis, with the foot not reaching the ground, or necessitating crutches. 38 C.F.R. § 4.71a, Diagnostic Code 5250.

Normal range of motion for the hip is flexion from zero degrees to 125 degrees abduction from zero degrees to 45 degrees.  38 C.F.R. § 4.71, Plate II.

Treatment records indicate that the Veteran has reported left hip pain and treatment has included various medications and manipulations.

Upon VA hip examination in August 2014, the Veteran reported flare-ups, described as limited in walking, cannot sleep and difficulty getting out of bed at times.  Upon range of motion testing, the Veteran had left hip flexion to 100 degrees with pain at 90 degrees, adduction to 20 degrees with pain at 15 degrees,  abduction to 35 degrees with pain at 30 degrees, left hip internal rotation to 30 degrees with pain, and left hip external rotation to 50 degrees with pain at 45 degrees.  Abduction was not lost beyond 10 degrees, adduction was not limited such that the Veteran cannot cross legs, and rotation was not limited such that the Veteran cannot toe-out more than 15 degrees.  The Veteran was able to perform repetitive-use testing with at least three repetitions without any additional loss in range of motion.  The Veteran was noted to have functional loss/functional impairment of the left hip with contributing factors, to include less movement than normal, pain on movement, weakness, fatigability and/or incoordination.  The examiner also noted that there is additional limitation of functional ability of the hip joint during flare-ups and/or repeated use over time and the degree of range of motion loss during pain on repeated use or during flare-ups is approximately 10 degrees in all range of motion measurements of the left hip.  The examiner reported no localized tenderness or pain to palpation.  Muscle strength testing was normal.  The examiner reported no ankylosis of the hip.  The examiner also reported that the Veteran did not have malunion or nonunion of the femur, flail hip joint or leg length discrepancy.  There were no other pertinent physical findings, complications, conditions, signs and/or symptoms.  The Veteran was noted as using a cane regularly for left knee stability.  Imaging studies documented left hip degenerative arthritis.  There were no other significant diagnostic findings.  The examiner diagnosed left hip degenerative joint disease.  The examiner opined that the condition mildly impacted the Veteran’s ability to work.

Upon VA hip examination in July 2019, the Veteran reported his condition has gradually worsened and current symptoms included pain, stiffness, and difficulty climbing stairs.  He reported no flare-ups of the hip; however, he reported having functional loss/impairment, described as the inability to walk or stand for long and difficulty climbing stairs and squatting.  Upon range of motion testing, the Veteran had left hip flexion to 80 degrees, adduction to 10 degrees, abduction to 30 degrees, internal rotation to 20 degrees, and external rotation to 35 degrees.  The examiner reported that the abnormal range of motion did not contribute to a functional loss.  Adduction was limited such that the Veteran could not cross his legs.  Pain which caused functional loss was noted on flexion, abduction, external rotation and internal rotation.  There was no evidence of pain on weight-bearing nor was there evidence of crepitus.  The Veteran was able to perform repetitive-use testing with at least three repetitions without any additional loss in range of motion.  The examiner reported objective evidence of pain on nonweight-bearing with passive range of motion values the same as on active range of motion and with pain observed at the same planes of range of motion as on active range of motion.  

The examiner reported the Veteran was not being examined immediate after repetitive use over time or during a flare-up; however, the examination was medically consisted with the Veteran’s statements describing function loss with repeated use over time and during flare-up.  The examiner reported that pain, weakness, fatigue and lack of endurance caused functional loss with repeated use over time.  In terms of range of motion with repeated use over time, the examiner described flexion to 70 degrees, abduction to 20 degrees, adduction to 0 degrees, external rotation to 30 degrees and internal rotation to 10 degrees.  Post-test adduction was limited such that the Veteran cannot cross legs.  Regarding flare-ups, there were no factors that significantly limited functional ability.  The examiner reported no additional contributing factors of the left hip disability.  

Muscle strength testing was normal, and the Veteran did not have muscle atrophy nor did the examiner report ankylosis.  The Veteran did not have malunion or nonunion of femur, flail hip joint or leg length discrepancy.  There were no other pertinent physical findings, complications, conditions, sign, symptoms and/or scars.  The Veteran did not use an assistive device.  The examiner diagnosed left hip degenerative arthritis.  The examiner determined that the left hip condition impacted the Veteran’s ability to work and opined that his ability to perform sedentary activity was mild to moderately impaired while is ability to perform physical activity employment is moderately impaired.  The examiner remarked that there is a worsening of the Veteran’s symptoms; however, no change to the service-connected diagnosis and no additional diagnoses have been rendered.

Upon July 2020 VA hip examination in connection with the Veteran’s claim for a right hip disability, rang of motion testing for the left hip revealed flexion to 115 degrees, abduction to 30 degrees, adduction to 20 degrees, external rotation to 55 degrees and internal rotation to 35 degrees.  The examiner reported that adduction was not limited such that the Veteran cannot cross his legs.  The examiner reported the abnormal range of motion did not contribute to a functional loss and no pain was noted on examination.  There was no evidence of localized tenderness or pain on palpation, pain with weight-bearing, or crepitus.  The examiner reported no objective evidence of pain is present when the left hip is used in nonweight-bearing nor on passive range of motion.  Passive range of motion values for the left hip were the same as on active range of motion.  The Veteran was able to perform repetitive-use testing with at least three repetitions without any additional loss in range of motion.  

The examiner reported the Veteran was not being examined immediate after repetitive use over time or during a flare-up; however, the examination was medically consisted with the Veteran’s statements describing function loss with repeated use over time and during flare-up.  The examiner reported that pain caused functional loss with repeated use over time and during flare-up.  In terms of range of motion with repeated use over time and during flare-up, the examiner described flexion to 110 degrees, abduction to 25 degrees, adduction to 15 degrees, external rotation to 50 degrees and internal rotation to 30 degrees.  Post-test adduction was not limited such that the Veteran cannot cross legs.  The examiner reported no additional contributing factors of the left hip disability.  Muscle strength testing was normal, and the Veteran did not have muscle atrophy nor did the examiner report ankylosis.  The Veteran did not have malunion or nonunion of femur, flail hip joint or leg length discrepancy.  There were no other pertinent physical findings, complications, conditions, sign, symptoms and/or scars.  The Veteran did not use an assistive device.  The examiner remarked that although abnormal findings were found for the Veteran’s non-claimed extremity (left hip), they are outside the scope of the current examination request; therefore, no diagnosis or statement regarding a possible relationship between the two joint conditions was rendered.

Upon review of the record, the Board finds that during the entire period on appeal, an initial compensable disability rating is not warranted for the Veteran’s left hip limited flexion nor is an initial rating in excess of 10 percent warranted for the left hip degenerative joint disease.  Even considering the Veteran’s subjective complaints of pain and other symptoms described in DeLuca, there is no evidence of flexion limited to 45 degrees at any time during the appeal period such that a higher compensable rating would be warranted pursuant to Diagnostic Code 5252 for the Veteran’s left hip limited flexion.  Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule).  In this regard, flexion of the left hip was limited to 80 degrees at worst, as shown on the July 2019 VA hip examination.  Accordingly, an initial compensable rating is not warranted for the Veteran’s left hip limited flexion throughout the entire period on appeal.

The Board also finds there is no objective evidence of limitation of abduction of motion lost beyond 10 degrees, which is what is required to warrant assigning the next highest rating pursuant to Diagnostic Code 5253 for the Veteran’s left hip degenerative joint disease.  In this regard, the Board notes that the 2014 VA examiner reported abduction was not lost beyond 10 degrees and abduction was limited to 30 degrees on the July 2019 and July 2010 VA hip examinations.  Painful motion is contemplated in the evaluation assigned under Diagnostic Code 5252 for limited flexion, as well as the separate rating assigned for limited adduction under Diagnostic Code 5253.  Accordingly, an initial rating in excess of 10 percent is not warranted for the Veteran’s left hip degenerative joint disease throughout the entire period on appeal.

The Board has considered whether higher or separate ratings can be assigned under Diagnostic Code 5250; however, the examiners of record have specifically indicated that the Veteran does not suffer from ankylosis, favorable or unfavorable. Accordingly, a higher rating under Diagnostic Code 5250 would not apply.   In addition, the examiners of record have determined that the Veteran did not have flail hip joint or impairment of the femur and as such, Diagnostic Codes 5254 and 5255 are not for application. 

In sum, the most probative evidence is against the assignment of an initial compensable disability rating for the Veteran’s service-connected left hip limited flexion, rated pursuant to Diagnostic Code 5252 and against the assignment of an initial disability rating in excess of 10 percent for his service-connected left hip degenerative joint disease, rated pursuant to Diagnostic Code 5253.  In reaching the above conclusion, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning ratings in excess of those already assigned, the doctrine is not for application.

Left Knee Increased Rating Claims

Service connection was originally granted for the left knee instability in a June 2016 rating decision, which assigned a 20 percent rating, effective from May 24, 2016 pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257.

Under Diagnostic Code 5257, recurrent subluxation or lateral instability of the knee warrants a 10 percent rating when it is slight, a 20 percent rating when it is moderate, and a 30 percent rating when it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257.

Service connection for left knee degenerative arthritis with history of Osgood Schlatter’s disease was originally granted in a January 1980 rating decision and a noncompensable disability rating was assigned, effective from September 19, 1979.  Thereafter a January 1994 rating decision assigned a 10 percent rating from October 1, 1993.  The June 2005 rating decision, which is the subject of this appeal, continued the 10 percent rating.  The June 2016 rating decision assigned a 20 percent rating, effective from May 24, 2016 and a June 2020 rating decision assigned a 30 percent disability rating, effective from July 2, 2019.  The Veteran’s left knee degenerative arthritis with history of Osgood Schlatter’s disease is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5261.

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 assigned rating; the additional code is shown after the hyphen.  For example, regarding the diagnostic codes for the left knee degenerative arthritis, the first four digits, 5003, represent the diagnostic used to rate degenerative arthritis.  The second four digits after the hyphen, 5261, represent the diagnostic code for limitation of extension of the leg.

Diagnostic Code 5003 for degenerative arthritis and its combinations with codes 5260 and 5261, requires that it be substantiated by x-ray findings and further rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion from degenerative arthritis, to be combined, not added.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spas, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 10 percent rating is warranted for x-ray evidence of involvement of two or more major or minor joints groups.  A 20 percent evaluation is warranted for x-ray evidence of involvement of two or more major or minor joints, with occasional incapacitating exacerbations.  Painful motion of a major joint caused by arthritis is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, even though there is no actual limitation of motion.  Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59.

Limitation of motion of knee joint is rated under Diagnostic Code 5260 for flexion, and Diagnostic Code 5261 for extension.  38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.  Under Diagnostic Code 5260, flexion that is limited to 60 degrees warrants a 0 percent rating; flexion that is limited to 45 degrees warrants a 10 percent rating; flexion that is limited to 30 degrees warrants a 20 percent rating; and flexion that is limited to 15 degrees warrants a 30 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5260. 

Under Diagnostic Code 5261, extension that is limited to 5 degrees warrants a 0 percent rating; extension that is limited to 10 degrees warrants a 10 percent rating; and extension that is limited to 15 degrees warrants a 20 percent rating; extension that is limited to 20 degrees warrants a 30 percent rating; extension that is limited to 30 degrees warrants a 40 percent rating; and extension that is limited to 45 degrees warrants a 50 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5261. 

Normal motion of a knee is from 0 degrees extension to 140 degrees flexion.  38 C.F.R. § 4.71, Plate II. 

Under Diagnostic Code 5258, cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint warrants a maximum 20 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5258. 

Under Diagnostic Code 5259, symptomatic removal of semilunar cartilage warrants a maximum rating of 10 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5259.

8. Entitlement to a compensable disability rating prior to August 6, 2014 for the service-connected left knee instability is denied.

9. Entitlement to a 20 percent disability rating, but no higher is warranted for the service-connected left knee instability since August 6, 2014.

10. Entitlement to an increased disability rating in excess of 10 percent prior to May 24, 2016 for the service-connected left knee degenerative arthritis with history of Osgood Schlatter’s disease is denied.

The Veteran underwent VA knee examination in June 2005 and reported symptoms of constant pain in the knee with functional impairment, described as difficulty walking, bending, sitting, standing and riding in the car. The Veteran further reported that the condition did not cause incapacitation.  Range of motion testing revealed flexion to 120 degrees with pain at 110 degrees and extension to zero.  The examiner reported that the joint function on the left is additionally limited by fatigue, weakness, lack of endurance and incoordination after repetitive use.  The general appearance of the left knee was normal, and results were within normal limits for the Drawer test and McMurray’s test.  Gait was also within normal limits.  The Veteran did not require an assistive device for ambulation.  The examiner noted there was a level scar measuring 3 by 0.2 centimeters in the supra patellar region of the left knee and a 4 by 0.5 centimeters scar with abnormal texture of less than 6 square inches located below the left knee.  The examiner changed the diagnosed history of Osgood Schlatter’s disease of the left knee, PO, with residuals to history of Osgood Schlatter’s disease of the left knee with left knee degenerative arthritis because there was x-ray evidence of degenerative arthritis.  The examiner opined that the effect of the condition on the Veteran’s daily activities is an inability to bend more than 120 degrees flexion of the left knee without any limitation in light walking.

Upon VA examination in May 2012, the Veteran reported left knee pain, to include with flare-ups.  Range of motion testing revealed left knee flexion to 115 degrees with pain at 60 degrees and extension to 10 degrees with pain.  The Veteran was able to perform repetitive-use testing with at least three repetitions without and additional limitation in range of motion.  The examiner reported the Veteran with functional loss/impairment with contributing factors such as less movement than normal and pain on movement.  Tenderness and/or pain to palpation was observed. 

Muscle strength testing was normal for flexion and extension.  Joint stability testing was also normal.  There was no evidence or history of recurrent patellar subluxation/dislocation nor had the Veteran had shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment.  There Veteran did not have any meniscal conditions but had undergone left knee surgery for treatment of the left knee in 1993 and 1997 or 1998 which had residual left knee pain and scarring and likely as not degenerative joint disease.  The Veteran reported using a brace and cane constantly to support knee and stabilize gait.  The examiner diagnosed Osgood Schlatter’s disease of the left knee status-post surgery with degenerative arthritis.  The examiner determined that the Veteran’s knee condition impacted his ability to work and explained that due to gait instability and worsening pain with prolonged standing and walking, the Veteran states he was forced to medically retire. 

Upon VA knee examination in August 2014, the Veteran reported flare-ups causing limited range of motion.  Range of motion testing revealed flexion to 80 degrees with pain at 75 degrees and extension to zero.  The Veteran was able to perform repetitive-use testing with at least three repetitions without any additional loss in limitation of motion.  The examiner reported the Veteran with functional loss/impairment with contributing factors of less movement than normal and pain on movement.  The examiner also reported weakness, fatigability and/or incoordination and stated that there is additional limitation of functional ability of the knee joint during flare-up and/or on repeated use over time.  The examiner stated that the degree of range of motion loss during pain on repeated use over time and/or flare-ups is approximately 10 degrees in flexion.  There was also pain on palpation.  

Muscle strength testing was normal.  Joint instability testing revealed 2+ (5-10 millimeters) for anterior, posterior and medial lateral instability.  There was no evidence of recurrent patellar subluxation/dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment.  There Veteran did not have any meniscal conditions and there were no other pertinent physical findings, conditions, complications, signs and/or symptoms.  The Veteran used a cane regularly for left knee stability.  The examiner diagnosed Osgood Schlatter’s disease of the left knee, post-operative with degenerative arthritis.  The examiner reported that the condition moderately impacted the Veteran’s ability to work.

Treatment records indicate that the Veteran has reported left knee pain and treatment has included various medications and manipulations.

Upon review of the evidence, the Board finds that since August 6, 2014, the criteria for a 20 percent disability rating for the left knee instability have been met.  In this regard, the evidence shows that as of the August 6, 2014 VA knee examination, joint instability testing revealed 2+ (5-10 millimeters) for anterior, posterior and medial lateral instability.  The Veteran was also noted to use a cane regularly for left knee stability.  A higher rating is not warranted as there is no evidence of severe lateral instability.  Further, the record consistently indicated that the Veteran did not have recurrent subluxation or lateral instability prior to August 4, 2016.  

The Board also finds that an increased rating in excess of 10 percent for the service-connected left knee degenerative arthritis with history of Osgood Schlatter’s disease is not warranted prior to May 24, 2016.  In this regard, at worst, the Veteran had left knee flexion to 80 degrees with pain at 75 degrees and the examiner opined that the degree of range of motion loss during pain on repeated use over time and/or flare-ups is approximately 10 degrees in flexion.  Extension was always to zero degrees.  Such findings do not support the criteria for an increased rating under Diagnostic Codes 5260 or 5261.  38 C.F.R. § 4.71a.  Thus, the 10 percent rating assigned was based on painful motion.

11. Entitlement to an increased disability rating in excess of 20 percent since August 6, 2014 for the service-connected left knee instability is denied.

12. Entitlement to an increased disability rating in excess of 20 percent since May 24, 2016 for the service-connected left knee degenerative arthritis with history of Osgood Schlatter’s disease is denied.

13. Entitlement to an increased disability rating in excess of 30 percent since July 2, 2019 for the service-connected left knee degenerative arthritis with history of Osgood Schlatter’s disease is denied.

Upon VA examination in May 2016, the Veteran reported his condition has become worse with symptoms of constant pain when walking, numbness, fatigue, weakness, lack of endurance, difficulty with prolonged standing, walking, sitting, and kneeling, knees tending to give out and extreme difficulty climbing stairs.  He reported flare-ups at night which can be described as an inability to put weight on the left leg and numbness when walking.  He also reported functional loss/impairment as mentioned above.  Range of motion testing revealed flexion to 40 degrees and extension to zero.  The abnormal range of motion contributed to functional loss and the examiner explained that the decreased range of motion affected his ability to ambulate.  Pain which caused functional loss was noted on examination for flexion and extension and there was evidence of pain on weight-bearing.  In addition, the examiner observed tenderness to palpation of the inferior patella and crepitus.  

The Veteran was able to perform repetitive-use testing with at least three repetitions; however, there was additional limitation in range of motion testing with flexion to 35 degrees and extension to zero.  Contributing factors included pain.  The Veteran was not examined immediately after repetitive use over time nor during a flare-up, but the examiner stated the examination is medically consistent with the Veteran’s statements describing functional loss.  Pain significantly limited functional ability with repeated use over time and during flare-up.  The examiner described range of motion testing with flexion to 35 degrees and extension to zero for repeated use over time and flexion to 20 degrees and extension to zero during flare-up.  Additional factors contributing to the disability included less movement than normal and pain with movement.  

Muscle strength testing was 4/5 (active movement against some resistance) for flexion and extension with a reduction in muscle strength due solely to the claimed condition in the diagnosis section.  The examiner reported no muscle atrophy or ankylosis.  There was no history of recurrent subluxation or lateral instability, but the examiner did report a history of recurrent effusion, described as complaints of swelling of the left knee where he had fluid removed in the past.  Joint instability was suspected.  Upon testing, results revealed 2+ (5-10 millimeters) for anterior and posterior instability and 1+ (0-5 millimeters) for lateral instability.  The examiner reported the Veteran had severe recurrent patellar dislocation and shin splints with current symptoms described as burning, aching pain.  No meniscus condition was reported.  The Veteran underwent transfer tendon in 1993 and from 1997 to 1998, he underwent removal of tendon fragment and arthroscopy to evaluate.  Residuals due to the surgeries were described as decreased range of motion and increased pain.  

The Veteran was noted to use a brace and cane constantly.  Imaging studies documented arthritis.  The examiner diagnosed left knee strain, osteoarthritis, recurrent patellar dislocatio, knee instability, shin splints, patellofemoral pain syndrome, bursitis, Osgood Schlatter’s disease and status-post left knee surgery.  The examiner remarked that the diagnosis of Osgood Schlatter’s disease of the left knee, PO with degenerative arthritis is changed and is a progression of the previous diagnosis.  The examiner determined that the condition impacted the Veteran’s ability to work and explained that he previously worked but was forced to retire because he was not able to perform his job duties which included prolonged standing, walking and entering/exiting vehicles.  He later worked as a longshoreman but needed to leave this position as he was only able to work four hours per day because of his difficulty climbing stairs/steps.  He complains of difficulty with prolonged standing, walking, and kneeling.  He has significant difficulty climbing stairs and sitting for prolonged periods of time.  He has difficulty walking on uneven ground and walking up slight inclines.  The examiner further stated that these limitations make it difficult for the Veteran to secure gainful employment performing physical and/or sedentary employment.

Upon VA knee examination in July 2019, the Veteran reported a worsening in his condition with current symptoms of pain, stiffness and giving out.  He did not report flare-ups but reported functional loss/impairment, described as the inability to kneel, squat, stand or walk for prolonged periods of time.  Range of motion testing revealed flexion of 10 degrees to 80 degrees and extension to 10 degrees.  The examiner reported the abnormal range of motion did not contribute to functional loss.  Pain causing functional loss was noted at flexion and extension.  

There was no objective evidence of localized tenderness or pain on palpation nor evidence of pain on weight-bearing.  There was objective evidence of pain when the left knee is used in nonweight-bearing and passive range of motion testing was the same as in active range of motion testing.  The pain present on passive range of motion was located at the same planes as on active range of motion.  The examiner reported evidence of crepitus.  The Veteran was able to perform repetitive-use testing with at least three repetitions without any additional loss of range of motion.  

The Veteran was not examined immediately after repetitive use over time nor during a flare-up, but the examiner stated the examination is medically consistent with the Veteran’s statements describing functional loss.  Pain, fatigue, weakness and lack of endurance significantly limited functional ability with repeated use over time.  The examiner described the functional loss in terms of range of motion as flexion of 20 degrees to 70 degrees and extension to 20 degrees with repeated use over time.  There were no factors that significantly limited functional ability with flare-ups.  There were no additional contributing factors of the disability.  Muscle strength testing was normal for flexion and extension and there was no muscle atrophy or ankylosis.  Joint stability testing revealed instability.  Upon testing, results revealed 1+ (0-5 millimeters) for anterior, medial and lateral instability.  

The examiner reported the Veteran did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment.  No meniscal conditions were reported.  The examiner reported three arthroscopic surgeries in 1982, 1983 and 1984.  A scar which was not painful or unstable was noted at the left knee measuring 6 by 0.7 centimeters.  The Veteran did not use any assistive devices.  The examiner diagnosed left knee instability and left knee degenerative arthritis with a history of Osgood Schlatter’s disease.  The examiner reported that the condition moderately impaired the Veteran’s ability to perform physical or sedentary employment.  The examiner remarked that additional conditions were found which are directly due to or related to the service-connected diagnosis (i.e. a progression) and explained that the Veteran’s degenerative knee condition causing worn and/or uneven cartilage results in further joint instability.

Treatment records indicate that the Veteran has reported left knee pain and treatment has included various medications and manipulations.

Upon review of the record, the Board finds that the criteria for an increased disability rating in excess of 20 percent for the left knee instability have not been met.  In this regard, there is no evidence of severe lateral instability.  While joint stability testing in May 2016 revealed 2+ (5-10 millimeters) for anterior and posterior instability and 1+ (0-5 millimeters) for lateral instability and 1+ (0-5 millimeters) for anterior, medial and lateral instability upon the July 2019 VA examination, these results are more approximated by moderate instability.  As such, a rating in excess of 20 percent since August 6, 2014 for the service-connected left knee instability is not warranted. 

The Board also finds that an increased rating in excess of 20 percent for the service-connected left knee degenerative arthritis with history of Osgood Schlatter’s disease is not warranted since May 24, 2016.  In this regard, at worst, the Veteran had left knee flexion to 40 degrees with additional limitation in range of motion testing with flexion to 35 degrees.  The examiner described range of motion testing with flexion to 35 degrees for repeated use over time and flexion to 20 degrees during flare-up.  Extension was always to zero.  Such findings do not support the criteria for an increased rating under Diagnostic Codes 5260 or 5261 since May 24, 2016 until July 1, 2019.  38 C.F.R. § 4.71a.    

The Board also finds that an increased rating in excess of 30 percent for the service-connected left knee degenerative arthritis with history of Osgood Schlatter’s disease is not warranted since July 2, 2019.  In this regard, at worst, the Veteran exhibited flexion of 70 degrees and extension to 20 degrees.  Such findings do not support the criteria for an increased rating under Diagnostic Codes 5260 or 5261 since July 2, 2019.  38 C.F.R. § 4.71a.    

A.	Other Considerations 

The Board has also considered whether the Veteran is entitled to a higher or separate rating under Diagnostic Code 5258; however, the evidence does not establish that the Veteran has dislocated semilunar cartilage.  Thus, a higher or separate rating under Diagnostic Code 5258 is not warranted.

Evaluations for knee impairment can also be assigned due to ankylosis, nonunion or malunion of the tibia and fibula, or genu recurvatum, but as the Veteran has not at any time been found to have ankylosis of the knee, nonunion or malunion of the tibia and fibula, or genu recurvatum, these diagnostic codes are not applicable and will not be further discussed.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263.

As a final matter, the Board has acknowledged the Veteran’s claim that his left knee degenerative arthritis with history of Osgood Schlatter’s disease (5003-5261) disability should instead be rated pursuant to Diagnostic Code 5003-5314.  

The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.”  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Furthermore, the selection of diagnostic codes or applicable rating criteria is not protected and may be appropriately revised if the action does not result in the reduction of compensation payments.  See 38 C.F.R. §§ 3.951, 3.957; Butts, 5 Vet. App. 532.

Under Diagnostic Codes 5301 to 5323, muscle injury disabilities are rated as slight, moderate, moderately severe, or severe according to criteria based on the type of injury, the history and complaint, and objective findings.  38 C.F.R. § 4.56(d).  The cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, and impairment of coordination, and uncertainty of movement.  38 C.F.R. § 4.56(c). 

Under Diagnostic Code 5314, (Muscle Groups XIV) slight impairment warrants a noncompensable disability rating, moderate impairment warrants a 10 percent disability rating, moderately severe impairment warrants a 30 percent disability rating, and severe impairment warrants a 40 percent disability rating.  38 C.F.R. § 4.73.

A “slight” disability is characterized by an injury of a simple wound of muscle without debridement or infection.  History and complaint are a superficial wound with brief treatment and return to duty, healing with good functional results, and no cardinal signs or symptoms of muscle disability.  Objective findings are minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue.  38 C.F.R. § 4.56(d)(1).

A “moderate” disability is characterized by an injury of a through and through or deep penetrating wound of a short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, with residuals of debridement, or prolonged infection.  History and complaint are treatment for the wound and consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objective findings are entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue, some loss of deep fascia or muscle substance or impairment of muscle tonus, and loss of power or lowered threshold of fatigue when compared to the sound side.  38 C.F.R. § 4.56(d)(2).

A “moderately severe” disability is characterized by an injury of a through and through or deep penetrating wound of a small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring.)  History and complaint are a service department record or other evidence showing hospitalization for a prolonged period for treatment of wound.  Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements.  Objective findings are entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side.  Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment.  38 C.F.R. § 4.56(d)(3).

A “severe” muscle disability is one where the injury was either through and through, or a deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or one with a shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intramuscular binding and scarring.  The service department record (or other evidence) would show hospitalization for a prolonged period for treatment of the wound.  There would be a consistent complaint of cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), which would be worse than that shown for moderately severe injuries, and, if present, an inability to keep up with work requirements.  Objectively, there would be ragged, depressed and adherent scars, indicating wide damage to muscle groups in the missile track.  Palpation would show loss of deep fascia or muscle substance, or soft flabby muscles in the wound area.  Muscles would swell or harden abnormally in contraction.  Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side would indicate severe impairment of function.  If they happen to be present, the following would also be signs of severe muscle injury: (a) x-ray evidence of minute multiple scattered foreign bodies indicating intramuscular trauma and explosive effect of missile. (b) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (c) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (d) Visible or measurable atrophy. (e) Adaptive contraction of an opposing group of muscles. (f) Atrophy of muscle groups not in track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (g) Induration or atrophy of an entire muscle following simple piercing by a projectile.  38 C.F.R. § 4.56(d)(4).

In this case the medical evidence of record, including VA examination reports from, shows that the Veteran’s service-connected left knee degenerative arthritis with history of Osgood Schlatter’s disease is not comprised of a through and through wound to warrant a 10, 20, 30 or 40 percent rating under Diagnostic Code 5314.  While the zero percent rating criteria under Diagnostic Code 5314 for slight muscle disability does not require a through and through wound, there is no evidence of a superficial wound with brief treatment and return to duty, healing with good functional results, no cardinal signs or symptoms of muscle disability, objective findings of minimal scar, no evidence of fascial defect, atrophy or impaired tonus, and no impairment of function or metallic fragments in muscle tissue.  In light of the above, the Board finds that it is more reflective of the Veteran’s symptomatology and his medical history to rate left knee degenerative arthritis with history of Osgood Schlatter’s disease directly under the criteria contained in Diagnostic Code 5261, as opposed to by analogy under Diagnostic Code 5314.

Further, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14.  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban at 261-62. 

However, the Board also finds that the diagnostic codes in question overlap, as they all contemplate limitation of function of the affected body parts.  Diagnostic Code 5261 specifically addresses limitation of motion of the knee, while Diagnostic Code 5314 contemplate loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement in the muscle group affecting the knee.  Accordingly, the Board finds that separate evaluations would constitute pyramiding—that is, the Veteran would be compensated twice for the same symptoms.  38 C.F.R. § 4.14.  The Veteran has therefore been rated under the diagnostic codes that affords him the higher schedular rating—Diagnostic Codes 5003-5261. 

Effective Date

The effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.  If the claim for service connection is received within one year of a veteran’s discharge from service, the effective date of an award of service connection will be the day following discharge from service or the date entitlement arose, whichever is later.  38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2).  

38 C.F.R. § 3.156(b) provides that new and material evidence received prior to the expiration of the appeal period or prior to the appellate decision will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.

The applicable statutory and regulatory provisions require that VA look to all communications from a veteran that may be interpreted as applications or claims–formal and informal–for benefits.  In particular, VA is required to identify and act on informal claims for benefits.  38 U.S.C. § 511(b)(2); 38 C.F.R. §§ 3.1(p), 3.155(a); Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992).

The Board notes that on March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises.  See 79 Fed. Reg. 57660 (Sept. 25, 2014).  The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015.  As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied in this case.

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a).  The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p).

Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to a veteran, it will be considered filed as of the date of receipt of the informal claim.  When a claim has been filed that meets the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim.  38 C.F.R. § 3.155.

 A medical report will be accepted as an informal claim when such report relates to a disability for which service connection has previously been established.  38 C.F.R. § 3.157(b); MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006).

14. Entitlement to an effective date earlier than November 26, 2013 for the grant of service connection for the lumbosacral strain with spondylolisthesis is denied.

15. Entitlement to an effective date earlier than November 26, 2013 for the grant of service connection for the left sciatic radiculopathy is denied.

The RO construed the Veteran’s counsel’s statement received on November 26, 2013, as a claim of entitlement to service connection for a lumbar spine disability.  In the November 2014 rating decision, the RO granted service connection for lumbosacral strain with spondylolisthesis and left sciatic radiculopathy associated with lumbosacral strain with spondylolisthesis effective from November 26, 2013. 

The Board has reviewed the record to determine whether any communication to VA made by or on behalf of the Veteran prior to November 26, 2013, which could be construed as a claim for service connection for a lumbar spine disability/left sciatic radiculopathy.  See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992); see also EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (noting that VA must liberally construe all documents filed by a claimant to determine, or even to infer, what claims have been filed). 

The Veteran reported at a May 2012 VA examination that his left knee causes left hip and back pain.  A June 2012 deferred rating decision reflects that the RO construed the Veteran’s assertion at the VA examination as a claim for a lumbar spine disability on a secondary basis.  Though the RO construed the assertion as a claim, the May 2012 examination report cannot be considered an informal claim under 38 C.F.R. § 3.157(b) because that regulation only applies to disabilities for which service connection had been previously established.  In other words, the May 2012 examination report cannot be an informal claim for service connection for the left hip disability even though the Veteran’s assertion at that examination is the basis of a secondary service connection claim.  MacPhee, 459 F.3d at 1328.  Moreover, the mere presence of medical evidence does not establish intent on the part of a veteran to seek secondary service connection.  A veteran must submit a written document identifying the benefit and expressing some intent to seek that benefit.  Brannon v. West, 12 Vet. App. 32, 35 (1998).  In this case, the Veteran did not submit a written document contemporaneous with that examination expressing an intent to seek service connection for a lumbar spine/left sciatic radiculopathy disability, and the Veteran and his counsel have not alleged that he did.

A review of the claims file reveals no formal claim, informal claim, or written intent to file a claim of service connection for a lumbar spine/left sciatic radiculopathy disability was presented prior to November 26, 2013.  Neither the Veteran nor his counsel has explicitly identified any document dated prior to November 26, 2013, indicating an intent to claim service connection for a lumbar spine/left sciatic radiculopathy disability.

Instead, in statements attached to the August 2015 notice of disagreement and the May 2016 VA Form 9, the Veteran’s counsel argued that an effective date of February 23, 2005, is warranted under 38 C.F.R. § 3.156(b) for the lumbar spine/left sciatic radiculopathy disabilities.  The Veteran filed a claim for an increased rating for the left knee disability on February 23, 2005.  

The Board notes that prior to the November 2014 rating decision granting service connection for the lumbar spine and left sciatic radiculopathy disabilities, an April 2007 rating decision determined that new and material evidence had not been submitted to reopen the claim for service connection for low back pain now claimed as herniated disc disease and degenerative arthritis in the back because the evidence failed to show that the Veteran developed arthritis in the low back to a compensable degree within the one year presumptive period following discharge from service and nor that the current back condition was due to service.  The Veteran was provided notice of the decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision.  Therefore, the decision became final.  See 38 C.F.R. §§ 3.156, 20.302, 20.1103. 

To the extent that the counsel is claiming that the February 25, 2005, claim for an increased rating for a left knee disability is a claim for the lumbar spine/left sciatic radiculopathy disabilities, the Board notes the February 25, 2005, statement reflects that the Veteran was only claiming an increased rating for the left knee disability.  He did not mention his lumbar spine or left sciatic radiculopathy at all.  Though service connection for the lumbar spine and left sciatic radiculopathy disabilities has been granted during the pendency of the February 2005 claim for an increased rating for a left knee disability, the claims for service connection for  lumbar spine and left sciatic radiculopathy disabilities are separate matters and not derivative of the left knee claim for effective date purposes.  

After thoroughly reviewing the record, the Board finds that prior to November 26, 2013, there were no pending and unadjudicated claims for service connection for the lumbar spine and/or left sciatic radiculopathy disabilities.

In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against a finding that an effective date earlier than November 26, 2013, for the grant of service connection for the lumbosacral strain with spondylolisthesis and left sciatic radiculopathy disabilities is warranted.  Therefore, the preponderance of the evidence is against the claims, and they must be denied.

REASONS FOR REMAND

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to November 26, 2013 is remanded.

The Board notes that per the June 2018 Board remand, the Board instructed that the RO attempt to obtain from the Office of Personnel Management any records pertaining to the Veteran receiving disability retirement benefits as a former federal employee of the National Parks Service.  In May 2019, the RO asked the Veteran to identify certain information about himself while employed in federal service.  The Veteran did not respond, and the RO never contacted the Office of Personnel Management to obtain such records.  The RO should attempt to secure such records on remand.  

The matters are REMANDED for the following action:

Attempt to obtain from the Office of Personnel Management any records pertaining to the Veteran receiving disability retirement benefits as a former federal employee of the National Parks Service.

 

ANTHONY C. SCIRÉ, JR

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	S. Medina, Associate Counsel

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.