Citation Nr: 21001226 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 11-20 879 DATE: January 7, 2021 ORDER Entitlement to a rating in excess of 10 percent for service-connected osteoarthritis of the right knee (right knee disability) is denied. Entitlement to a rating in excess of 10 percent for service-connected osteoarthritis of the left knee (left knee disability) is denied. Entitlement to a rating in excess of 10 percent for the service-connected degenerative changes of the lumbar spine (back disability) for the period prior to April 25, 2019, is denied. FINDINGS OF FACT 1. During the appeal period, the Veteran’s right knee disability manifested with painful motion but with flexion greater than 30 degrees. There was no ankylosis, joint instability, or patellar subluxation or dislocation. 2. During the appeal period, the Veteran’s left knee disability manifested with painful motion but with flexion greater than 30 degrees. There was no ankylosis, joint instability, or patellar subluxation or dislocation. 3. During the period from March 30, 2010 through April 25, 2019, the Veteran’s back disability manifested with painful motion but with forward flexion greater than 60 degrees and a combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees; ankylosis was not present. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260. 2. The criteria for entitlement to a disability rating in excess of 10 percent for left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260. 3. The criteria for entitlement to a disability rating in excess of 10 percent during the period from March 30, 2010 through April 25, 2019, for service-connected back disability, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1968 to August 1970, and from June 1975 to June 1993, to include service in the Republic of Vietnam and Southwest Asia. The Veteran received the Combat Infantry Badge, Bronze Star Medal with “V” device and many other awards and decorations. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded in January 2017, December 2017, and October 2019 and has since been returned to the Board for appellate review. As the requested development has been completed, no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 1. Right and left knee disabilities Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal ROM of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect, and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of either knee. As such, those diagnostic codes are not for application. This appeal stems from a claim dated in March 2010. During the period on appeal, the right and left knee is each rated at a noncompensable rating under Diagnostic Code 5003-5260 effective July 1, 1993 for limitation of flexion. The rating was increased to 10 percent bilaterally effective March 30, 2010 for limitation of flexion. The Board concludes that the Veteran’s disability picture, to include the Veteran’s statements, does not more nearly approximate the degree required for a higher or separate rating. ROM testing was performed during VA examinations in April 2010, June 2010, February 2016, February 2017, April 2019, and December 2019 and showed at worst motion from 0 degrees extension to 115 degrees flexion for the right knee, and from 5 degrees extension to 120 degrees flexion for the left knee, to include some testing that was performed after repetitive use over time and during flare-ups. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiner, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The reports do not suggest that the specific findings on examination, in terms of ROM, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. While the Veteran has essentially stated that he has reduced motion in his knee, he has not described a ROM less than that found on examination. In this regard, during the February 2016 and April 2019 examinations he did report flare-ups but described the flare-ups as consisting of worsening knee pain for a short period after increased activity or pain when standing or sitting for a long time. The Veteran’s statements do not show the requisite limitation of motion necessary for a higher or separate rating. Treatment records do not show greater limitation of motion than the examination findings. In a December 2019 VA opinion, the examiner opined that there is no evidence that flare-ups caused a loss of ROM in the left or right knee at any time during the appeal period. Given the above, even when considering the knee pain’s impact on physical activities, a higher or separate rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. During this period, the Veteran has reported experiencing instability of his knee but specified during the December 2019 VA examination that he stumbled only on certain flooring types, such as uncarpeted floors at the VA or in stores, and that his shoe catches on the floor, causing him to stumble and that he does not think that his knee actually gives way or buckles. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by medical professionals at the VA examinations and the testing revealed no instability or laxity. Given the tests performed are generally recognized in the medical community as diagnostic for instability and subluxation, the results are afforded high probative value. The test results are not in conflict with the Veteran’s statements in December 2019. Hence, the most probative evidence is against the assignment of a rating for the knee under Diagnostic Code 5257 during this time period. 38 C.F.R. § 4.71a. No current dislocated semilunar cartilage or meniscal condition was noted. As a result, rating under Diagnostic Code 5258 and 5259 are not appropriate. Accordingly, the preponderance of evidence is against the claim for higher or separate ratings for the Veteran’s left and right knee disability than those already assigned. 2. Back disability Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made 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. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined ROM of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined ROM is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12 month period. In this case, incapacitating episodes of IVDS are not shown or alleged. This appeal stems from a claim dated in March 2010. The Veteran is service-connected for degenerative changes to the lumbar spine, rated as 10 percent disabling from August 16, 2005 to April 25, 2019, and currently rated as 20 percent disabling effective April 26, 2019 under rating code 5242. As the Board has already decided on the appeal period since April 26, 2019, this decision will decide on the period of August 16, 2005 to April 25, 2019. During the appeal period the Veteran underwent VA examinations in April 2010, June 2010, February 2016, and February 2017 and an additional VA opinion was obtained in December 2019. ROM testing in April and June 2010 was within normal limits. The joint function of the spine showed no other abnormalities. During the February 2016 VA examination, ROM was normal and it was noted that testing occurred after repetitive use over time and during a flare-up. While the Veteran described flare-ups of pain with bending, he did not describe any functional loss or functional impairment. During the February 2017 VA examination, ROM testing was performed and showed, at worst, forward flexion to 80 degrees and a combined ROM no less than 230 degrees. He reported flare-ups consisting of pain after standing for 15 minutes. Regarding functional impairment, he indicated he could not do a lot of bending and bending resulted in pain. The October 2019 Board remand requested retroactive findings regarding pain on ROM testing and an estimation of ROM in certain situations. In December 2019 an examiner opined that passive and weight bearing range of motion testing of the lumbar spine could harm the Veteran and were contraindicated, and that based on the available information forward flexion was estimated to be reduced to at most 68 degrees with a combined range of motion of 159 degrees. This included a review of physical therapy records and consideration of flare-ups. VA examination findings, treatment records, and the Veteran’s statements have been considered but do not show the requisite limitation of motion for a higher disability rating. Ankylosis of the spine is not shown by the medical evidence or alleged by the Veteran. During the appeal period, the Veteran did not exhibit guarding or muscle spasm of the thoracolumbar spine resulting in an abnormal gait or abnormal spinal contour. Regarding relevant neurological findings, the examiners noted no neurological abnormalities associated with the back disability. There is no other evidence in significant conflict with these findings. Therefore, the Board finds there are no other symptoms which should be addressed by a separately-assigned disability rating. After a careful review of the evidence, the Board finds that the criteria for more than a 10 percent rating for the Veteran’s back disability are not met for this period. The evidence as discussed above shows forward flexion of the thoracolumbar spine to greater than 60 degrees to include all measurable periods of flare-ups, combined ROM of 159 degrees or greater, and that the Veteran does not have ankylosis of the thoracolumbar spine. Based on the foregoing, the Board concludes that the symptoms associated with the Veteran’s low back disability do not more nearly approximate the criteria for a 20 percent disability evaluation and an increased rating is denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. J. Kim, 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.