Citation Nr: 21003288
Decision Date: 01/21/21	Archive Date: 01/21/21

DOCKET NO. 15-14 506A
DATE: January 21, 2021

ORDER

Entitlement to an initial rating in excess of 30 percent for major depressive disorder prior to October 18, 2019, and a rating in excess of 50 percent thereafter is denied.  

Entitlement to an initial rating in excess of 10 percent for right hip bursitis based on limitation of extension is denied.

Entitlement to an initial compensable rating for right hip bursitis based on limitation of flexion is denied.  

Entitlement to a separate 10 percent rating based on limitation of adduction of the right hip is granted. 

For the period prior to October 8, 2019, entitlement to an initial rating in excess of 10 percent for a right ankle disability is denied.

For the period since October 8, 2019, entitlement to a rating of 20 percent for the right ankle disability is granted.  

Entitlement to an initial rating in excess of 10 percent for a right knee disability is denied.

Entitlement to an initial rating in excess of 10 percent for a left knee disability is denied.

Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability is denied.

Entitlement to an initial rating in excess of 40 percent for radiculopathy of the right lower extremity is denied.  

FINDINGS OF FACT

1. Prior to October 18, 2019, the Veteran’s major depressive disorder is characterized by occupational and social impairment with occasional decrease in work efficiency.

2. Since October 18, 2019, the Veteran’s major depressive disorder is characterized by occupational and social impairment with reduced reliability and productivity.

3. The Veteran's right hip disability has been manifested by limitation of extension to 10 degrees.  

4. The Veteran’s right hip disability has been manifested by limitation of flexion to 80 degrees.  

5. Effective from October 8, 2019, the Veteran’s right hip adduction is limited such that she is unable to cross her legs.  

6. Prior to October 8, 2019, the Veteran’s right ankle disability is manifested by decreased motion and pain, characterized by moderate limitation of motion.

7. Since October 8, 2019, the Veteran’s right ankle disability is manifested by decreased motion and pain, characterized by marked limitation of motion, but there is no evidence of ankylosis at any point during the appeal.

8.The Veteran’s right knee disability is manifested by decreased motion and pain, with flexion limited to 90 degrees, but there is no evidence of ankylosis at any point during the appeal.  

8. The Veteran’s left knee disability is manifested by decreased motion and pain, with flexion limited to 90 degrees, but there is no evidence of ankylosis at any point during the appeal.  

9. The Veteran’s lumbar spine was manifested by flexion limited to, at most, 80 degrees.  There is no evidence of ankylosis.

10. The Veteran’s radiculopathy of the right lower extremity is manifested by moderately severe incomplete paralysis of the sciatic nerve.  

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 30 percent prior to October 18, 2019, and a rating in excess of 50 percent thereafter for major depressive disorder have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.130, Diagnostic Code 9433.

2. The criteria for an initial rating in excess of 10 percent for right hip bursitis, limitation of extension, are not met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5251.

3. The criteria for an initial compensable rating right hip bursitis, limitation of flexion, are not met.  38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5252.

4. From October 8, 2019, the criteria for a separate rating of 10 percent, but no higher, for limitation of adduction of the right hip are not met.  38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5253.

5. Prior to October 8, 2019, the criteria for an initial rating in excess of 10 percent for the right ankle disability have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271.  

6. Since October 8, 2019, the criteria for a rating of 20 percent for the right ankle disability have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271.  

7. The criteria for a rating in excess of 10 percent for the right knee disability have not been met.  38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 

8. The criteria for a rating in excess of 10 percent for the left knee disability have not been met.  38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257.

9. The criteria for an initial rating in excess of 10 percent for the lumbar spine disability have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237.

10. The criteria for an initial rating in excess of 40 percent for radiculopathy of the right lower extremity have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from May 2000 to September 2009.

This case comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for the claims currently before the Board.

An April 2014 rating decision reduced the Veteran’s disability ratings for the lumbar strain, right hip bursitis, and right and left knee strains to 0 percent, effective from July 1, 2014.  These ratings were restored by the Board in the prior April 2018 decision.  

In March 2020, the RO awarded the Veteran a 50 percent rating for her major depressive disorder, effective from October 18, 2019; and, an initial rating of 10 percent for the right ankle disability, effective from September 23, 2010.  The RO also granted a separate, noncompensable rating for limitation of flexion of the right hip, effective from October 8, 2019, and a 40 percent rating for radiculopathy of the right lower extremity associated with the lumbar spine disability, effective from October 8, 2019.  The Board has jurisdiction over these issues, and have been added above, as they are associated with the disabilities presently before the Board.

In March 2018, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record. 

Increased Ratings

Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity.  38 U.S.C. § 1155 (West 2012).  Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA’s Schedule for Rating Disabilities.  The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  38 C.F.R. § 4.21.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case.  Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 3.102, 4.3.

In deciding this appeal, the Board has considered whether separate ratings for different periods of time are warranted, a practice of assigning ratings referred to as staging ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).

Psychiatric Disability 

1. Major Depressive Disorder

The Veteran is seeking an initial rating in excess of 30 percent prior to October 18, 2019, and a rating in excess of 50 percent since for her service-connected major depressive disorder.

The Veteran’s psychiatric disorder is currently evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9433.  When rating psychiatric disorders, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code.  

Nevertheless, under the General Rating Formula, the criteria for a 30 percent rating requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as:  depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130.

The criteria for a 50-percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  Id.

The criteria for a 70-percent rating are: occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships.  Id.

The criteria for a 100-percent rating are: total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

Procedural and Factual Background

In May 2011, the Veteran was scheduled for a VA psychiatric examination in connection with her claim for service connection.  See May 2011 VA Examination.  At that time, the examiner diagnosed the Veteran with depression and borderline personality disorder.  The examiner stated that the Veteran had difficulty establishing and maintaining effective work /school and social relationships because of borderline personality disorder.  The symptoms identified on examination attributable to the depression included depressed mood and anxiety.  The Veteran did not have difficulty understanding commands, required continued medication monitoring, and did not appear to pose any threat of danger or injury to self or others.  The examiner also noted the Veteran had poor interpersonal relationships, fast fluctuations in affect, and poor self-esteem.  The examiner determined the Veteran’s psychiatric disability is characterized by occupational and social impairment with an occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally the person is functioning satisfactorily with routine behavior, self-care and normal conversation. 

The Veteran was next examined by VA in September 2013 to determine the current severity of her psychiatric disability, with no change in diagnosis noted.  See September 2013 VA Mental Disorders Disability Benefits Questionnaire (DBQ).  Marital discord was reported.  The examiner noted the symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances.  The examiner also noted the Veteran was directed to seek follow-up treatment, but she did not appear to pose any threat of danger or injury to self or others.  The examiner ultimately concluded the Veteran’s psychiatric disability is characterized by occupational and social impairment with mild or transient symptoms.  

The Veteran was most recently examined by VA in October 2019.  See October 2019 VA Mental Disorders DBQ.  No change in diagnosis was warranted.  The examiner noted the symptoms of depressed mood, anxiety, panic attacks that occur weekly or less, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances.  There was no evidence of audio/visual hallucinations, or suicidal or homicidal ideations, and the examiner stated that it was not believed the Veteran should be considered a current imminent or increased risk for suicidal ideations.  The examiner ultimately concluded the Veteran’s psychiatric disability is characterized by occupational and social impairment with reduced reliability and productivity.  

Also of record are VA treatment records reflecting that the Veteran has sought mental health treatment throughout the appeals period.  Specifically, a January 2012 VA treatment record reflects that she was taking medication for her psychiatric disability.  An April 2015 VA treatment record includes a mental health assessment wherein the Veteran again denied suicidal ideations.  She noted difficulty with sleeping.  The treating physician noted speech was normal, appearance neat, and behavior was appropriate.  However, these records do not include any discussion of psychiatric symptomatology that is markedly different from that discussed during the VA examinations.  

Analysis

Following a review of the lay and medical evidence, the Board finds that the evidence does not support a rating in excess of 30 percent prior to October 18, 2019, or a rating in excess of 50 percent thereafter. 

Period Prior To October 18, 2019

Specifically, for the period prior to October 18, 2019, the Veteran’s psychiatric disorder is characterized by only depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances.  See May 2011 VA Examination and September 2013 VA Mental Disorders DBQ.  While the Veteran also reported marital discord, the evidence does not establish that her psychiatric disability causes social impairment produced more than an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), as was noted by the May 2011 and September 2013 VA examiners during the course of their examinations.  See id.  Symptoms commonly associated with the next higher 50 percent rating include flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.   However, the evidence during this period shows only a report of disturbances of motivation and mood.  Id.  

Here, based on a totality of the evidence for the period prior to October 18, 2019, the Board finds that the symptoms noted during the May 2011 VA examination and September 2013 VA Mental Disorders DBQ are not shown to produce social and occupational impairment with reduced reliability and productivity.  Specifically, while the May 2011 and September 2013 VA examiners identified difficulty in establishing and maintaining effective work relationships and disturbances of mood and motivation, respectively, there is no indication that the frequency, duration, and severity of the Veteran’s diagnosed psychiatric disorders more closely approximating a 50 percent rating based on these symptoms alone.  In fact, the VA examiners specifically determined the Veteran’s overall impairment approximated occupational and social impairment with occasional decrease in work efficiency.  See May 2011 VA Examination and September 2013 VA Mental Disorders DBQ.  As such, the Board finds that the evidence simply does not support a finding that the Veteran is entitled to the next higher 50 percent rating. 

Period From October 18, 2019

Since October 18, 2019, the Board concludes that the Veteran’s psychiatric disorder is appropriately rated at the currently assigned 50-percent rating.  In reaching this determination, the Board finds that her psychiatric disability has been manifested by occupational and social impairment due to depressed mood, anxiety, panic attacks that occur weekly or less, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances.  In so finding, the Board notes that the October 2019 VA examiner specifically noted there was no evidence of audio/visual hallucinations, or suicidal or homicidal ideations.  The examiner also stated that it was not believed the Veteran should be considered a current imminent or increased risk for suicidal ideations.  See October 2019 VA Mental Disorders DBQ.  

The Board further finds that the preponderance of the evidence is against an evaluation in excess of 50 percent since the symptoms, or the effects of the symptoms set out for these levels of impairment are absent from the record.  The evidence does not show that the Veteran has occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; spatial disorientation; neglect of personal appearance and hygiene; inability to establish and maintain effective relationships; hallucinations; or suicidal or homicidal ideations.  Specifically, the October 2019 VA examiner determined that the Veteran’s psychiatric disability was best characterized as occupational and social impairment with reduced reliability in productivity due to the identified symptoms of depressed mood, anxiety, panic attacks that occur weekly or less, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances.  The examiner also noted the absence of more severe symptomology, such as audio/visual hallucinations, or suicidal or homicidal ideations, which would tend to support a rating of 70 or 100 percent.  See October 2019 VA Mental Disorders DBQ.  

In fact, the Veteran has not endorsed any of the symptoms commonly associated with ratings of 70 or 100 percent, such as obsessional rituals, illogical/ obscure/ irrelevant speech; near-continuous panic or depression; spatial disorientation; neglect of personal appearance and hygiene; hallucinations; suicidal or homicidal ideations; gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name.  Thus, the evidence of record simply does not support a rating in excess of 50 percent as she has not endorsed any of the other symptoms above required for the higher 70 or 100-percent ratings.  

The Board notes that the symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.”  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment.  Id. at 443.  When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms.  Vazquez–Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013).  

In reaching the above conclusions, the Board has not overlooked the Veteran’s statements found in the record and as recited during her March 2018 Board hearing.  Specifically, she stated that her depression affects her marriage, she feels alienated, and withdrawn.  The Veteran also testified she feels depressed all the time and is angry and agitated easily.  In this regard, the Veteran’s statements as to the severity of her psychiatric disorder are credible and she is certainly competent to report how she believes her disorder has affected her life, including describing her symptoms.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009).  She is not, however, competent to identify a specific level of disability for this condition, according to the appropriate diagnostic codes, or, to attribute specific symptoms to a disability.  See Robinson v. Shinseki, 557 F.3d 1355 (2009).  Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports and treatment records) directly address the criteria under which the disability is evaluated.  

Accordingly, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Musculoskeletal Disabilities

2. Right hip bursitis

Applicable Laws and Regulations

The Veteran is seeking entitlement to an initial rating in excess of 10 percent for bursitis of the right hip, pursuant to Diagnostic Code 5251.  Parenthetically, the Board notes that the Veteran was granted a separate noncompensable rating for the right hip based on limitation of flexion under Diagnostic Code 5252, effective from October 8, 2019.  This rating will also be addressed below.

Diagnostic Code 5251 addresses limitation of extension of the thigh, and provides for a single 10 percent rating when extension is limited to 5 degrees.  38 C.F.R. § 4.71a , Diagnostic Code 5251.  Notably, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

Diagnostic Code 5252 addresses limitation of flexion of the thigh, and provides for a 10 percent rating when flexion is limited to 45 degrees.  A 20 percent rating is assigned when flexion is limited to 30 degrees, and higher ratings are assigned for more severe limitations.  38 C.F.R. § 4.71a , Diagnostic Code 5252.

Diagnostic Code 5253 addresses other impairment of the thigh.  A 10 percent rating is assigned when rotation is limited such that a veteran cannot “toe-out” more than 15 degrees, or when adduction is limited such that a veteran cannot cross his legs.  A 20 percent rating is assigned when abduction motion is lost beyond 10 degrees.  38 C.F.R. § 4.71a , Diagnostic Code 5253.

Normal hip flexion is to 125 degrees; normal hip abduction is to 45 degrees.  38 C.F.R. § 4.71, Plate II.

Procedural and Factual Background

The Veteran was initially examined by VA in June 2011 in connection with her claim of service connection for a right hip disorder.  A diagnosis of bursitis over greater trochanter was provided.  At that time, the Veteran reported tenderness and pain after long runs, extended walking, or standing.  She denied experiencing weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, deformity, drainage, effusion, subluxation, and dislocation.  The Veteran reported flare-ups occurring 4 times a month and lasting for 3 days each time, with a severity level of a 2 out of 10.  During a flare-up, the Veteran reported functional impairment in an inability to run, and walking is limited to 2 miles a day.  Upon physical examination, the examiner noted posture and gait were normal.  The right hip was tender bilaterally over greater trochanter.  There were no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, drainage, or subluxation.  Range of motion testing showed flexion to 100 degrees, extension to 30 degrees, abduction to 45 degrees, adduction to 25 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees.  Repetitive motion was possible without any additional limitation of motion.  Pain was noted on adduction and abduction at the endpoints.  The examiner noted that the right hip joint was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.  See June 2011 VA Examination.  

The Veteran was next examined by VA in August 2013.  At that time, she reported pain at rest and lasting longer than was previously reported, but denied experiencing flare-ups.  Range of motion testing revealed flexion to 125 degrees, extension greater than 5 degrees.  The examiner noted that abduction was not lost beyond 10 degrees, adduction is not limited such that the Veteran cannot cross her legs, and rotation is not limited such that she cannot toe out more than 15 degrees.  Specifically, it was noted that abduction was to 45 degrees, adduction to 25 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees.  The Veteran was able to perform repetitive use testing with no change in the above range of motion of findings.  The examiner noted there was no additional limitation of motion or functional impairment following repetitive use testing.  Further, there were no contributing factors of weakness, fatigability, incoordination, or pain during flare-ups or after repeated use that could additionally limit the functional ability of the hip.  Strength testing was normal.  There was no evidence of ankylosis, malunion or nonunion of the femur, flair hip joint, or leg length discrepancy.  The Veteran has not undergone surgery for the right hip and there were no additional findings noted, including the use of an assistive device.  See August 2013 Hip and Thighs Conditions DBQ.

The Veteran was most recently examined by VA in October 2019 to ascertain the severity of her right hip disabilities.  At that time, the examiner confirmed the previous diagnosis but also included osteoarthritis of the right hip, confirmed by x-ray findings.  The Veteran reported experiencing sharp pain, with decreased range of motion.  She also reported flare-ups, characterized as pain over the groin area and a functional limitation characterized as an inability to walk more than 20 minutes.  Range of motion testing revealed flexion to 90 degrees, extension to 20 degrees, abduction to 45 degrees, adduction to 20 degrees, external rotation to 50 degrees, and internal rotation to 20 degrees.  All movements resulted in pain constituting functional loss.  The examiner noted that adduction was limited such that the Veteran could not cross her legs.  There was objective evidence of localized tenderness or pain on palpation on the anterior hip, described as a 6 out of 10.  There was evidence of pain on weight-bearing in both active and passive motion, but no change in range of motion testing.  There was no evidence of crepitus.  The Veteran was able to perform repetitive use testing with no change in the above range of motion of findings.  The examiner noted there was no additional limitation of motion or functional impairment following repetitive use testing.  Pain was noted to significantly limit functional ability with repeated use over a period of time.  In this respect, range of motion findings were noted to be flexion to 90 degrees, extension to 20 degrees, abduction to 40 degrees, adduction to 20 degrees, external rotation to 40 degrees, and internal rotation to 20 degrees.  See October 2019 Hips and Thighs Conditions DBQ.

During a flare-up, pain was also found to limit functional ability.  Range of motion testing revealed flexion to 80 degrees, extension to 10 degrees, abduction to 30 degrees, adduction to 20 degrees, external rotation to 30 degrees, and internal rotation to 10 degrees.  Strength testing was normal.  There was no evidence of muscle atrophy, ankylosis, malunion or nonunion of the femur, flair hip joint, or leg length discrepancy.  The Veteran has not undergone surgery for the right hip and there were no additional findings noted.  She requires the occasional use of a cane.  See id.  

Also, of record are VA treatment records dated throughout the pendency of this appeal.  However, these records only include notations of chronic hip pain and do not include any additional range of motion findings that are relevant to assigning the Veteran’s rating.  See generally VA Treatment Records/ CAPRI.  As such, there is no objective evidence to consider as contained in these records.

Analysis

Turning first to the currently assigned 10 percent rating pursuant to Diagnostic Code 5251 for limitation of extension, a 10 percent rating is warranted when extension is limited to 5 degrees.  Here, the evidence supports this finding where it reflects the Veteran’s extension is greater than 5 degrees, but with painful motion, as noted in the August 2013 VA hips and Thighs Conditions DBQ.  As this is the highest rating allowed under the Diagnostic Code, an even higher rating is not applicable.

Additionally, the Veteran is also in receipt of a separate noncompensable, 0 percent, rating pursuant to Diagnostic Code 5252 based on limitation of flexion of the hip, effective from October 8, 2019.  Under Diagnostic Code 5252, limitation of flexion of the right hip, a 10 percent rating requires flexion to be limited to 45 degrees.  Here, the Veteran’s flexion has been found to be limited to, at most, 80 degrees during a flare-up.  See October 2019 VA Hips and Thighs Conditions DBQ.  Further, while pain has been noted during each examination, the fact remains the Veteran was able to perform range of motion testing with results well in excess of the required minimum finding of 45 degrees.  The objective evidence as noted in the June 2011, August 2013, and October 2019 examinations of record all failed to show that flexion as never been limited to 45 degrees at any point during the appeals period, or even approximating such limitation, such that a 10 percent rating is warranted.  Therefore, an initial compensable rating is not warranted based on limitation of flexion.

As to whether the Veteran is entitled to a separate rating under Diagnostic Code 5253, the Board finds the evidence supports the assignation of a separate 10 percent rating, effective from October 8, 2019.

Under Diagnostic Code 5253 for impairment of the right hip, a 10 percent rating requires a finding that rotation is limited such that a veteran cannot “toe-out” more than 15 degrees, or when adduction is limited such that a veteran cannot cross her legs.  A 20 percent rating is assigned when abduction motion is lost beyond 10 degrees.  Here, the October 2019 VA examiner specifically noted the Veteran is unable to cross her legs.  Therefore, a separate 10 percent rating is warranted.  However, the evidence does not show the Veteran is entitled to a rating in excess of 10 percent as her abduction has been limited to, at its worst, 20 degrees, even during a flare-up or after repetitive use.  See October 2019 VA Hips and Thighs Conditions DBQ.  Therefore, a 10 percent rating, but no higher, is warranted for the right hip effective from October 8, 2019.  

In addition, the Board has considered whether repetitive motion and/or flare-ups resulted in additional functional loss due to symptoms such as pain, swelling, weakness, fatigue, or incoordination.  The VA examiners all noted there was pain on motion.  However, the June 2011 and August 2013 examinations revealed the Veteran was able to perform repetitive use testing without additional loss in range of motion.  Moreover, even considering changes in range of motion during the October 2019 VA examination, the VA examiner specifically found that flexion was limited to, at most 90 degrees.  However, the evidence fails to show limitation of flexion to even a compensable degree in any of the VA examinations, even in contemplation of functional loss caused by symptoms such as pain.  Similarly, while there was a 5 degree decrease in the Veteran’s abduction during the October 2019 VA examination, it was still found to be to 20 degrees.  As such, the Board finds that the Veteran is not entitled to an initial compensable rating under Diagnostic Code 5252, or a rating in excess of 10 percent under Diagnostic Code 5253. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell, supra. Burton v. Shinseki, 25 Vet. App. 1 (2011).  As for functional impairment in the context of limitation of extension, the Veteran has always been in receipt of the highest rating allowed under Diagnostic Code 5251.

The Board has also considered application of the holdings in the cases of Correia or Sharp.  Here, the Board notes that the Veteran reported experiencing flare-ups of the right hip during every examination of record, except the August 2013 VA Hips and Thighs Conditions DBQ.  Regardless, even during a flare-up, the Veteran’s flexion was found to be limited to at most, 80 degrees.  See October 2019 VA Hips and Thighs Conditions DBQ.  The Board also notes that at no point during the appeals period do the range of motion findings of the VA examiners more nearly approximate the findings as required for a rating in excess of 10 percent based on limitation of flexion, adduction, or rotation, even without consideration of pain on weight-bearing/ non weight-bearing.  Therefore, while the Board acknowledges the objective findings of pain on weight bearing with respect to the right hip in the June 2011 and October 2019 VA examinations and the Veteran’s reported functional limitations during flare-ups, the evidence of record does not support a finding that the Veteran’s right hip disability warrants a compensable rating for limitation of flexion, or based on abduction.  

Other potentially applicable diagnostic codes pertaining to the hip have been considered.  See Schafrath, 1 Vet. App. at 595.  However, there is no evidence of hip ankylosis, malunion of the femur, or flail hip joint.  Therefore, Diagnostic Codes 5250, 5254, and 5255 are not for application.  38 C.F.R. § 4.71a.

In reaching the above conclusions, the Board has not overlooked the Veteran’s statements with regard to the severity of her right hip disability.  In this regard, the Veteran is competent to report on factual matters of which she has firsthand knowledge, e.g., experiencing chronic pain in her right hip.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran has provided lay evidence through written statements and during her prior Board hearing throughout the course of this appeal with respect to the presence of pain and the severity of such during her VA examinations.  She is competent to provide such statements, and the Board finds that the Veteran’s statements are credible.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Nevertheless, the Board finds the Veteran's statements are not indicative of symptomatology that is more severe than that observed at her VA examinations and do not describe symptoms that would warrant a higher rating than those currently assigned.  As such, the objective medical findings provided by the Veteran’s VA examination reports have been accorded greater probative weight.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  

Accordingly, the preponderance of the evidence is against the claim.  Thus, there is no doubt to be resolved and the claim is denied.  See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.

3. Right ankle disability

The Veteran is seeking entitlement to an initial rating in excess of 10 percent for her right ankle disability pursuant to Diagnostic Code 5271.

  

Applicable Laws and Regulations

Diagnostic Code 5271 evaluates range of motion in the ankle.  A 10 percent rating is assigned for moderate limitation of motion, and a 20 percent rating is assigned for marked limitation of motion.

Ankle dorsiflexion is measured from 0 degrees to 20 degrees; plantar flexion is measured from 0 degrees to 45 degrees.  38 C.F.R. § 4.71a , Plate II. 

Additionally, Diagnostic Code 5270 evaluates ankylosis of the ankle, Diagnostic Code 5272 evaluates ankylosis of the subastragalar or tarsal joint, Diagnostic Code 5273 evaluates malunion of the os calcis or astragalus, and Diagnostic Code 5274 evaluates astragalectomy, or removal of the talus bone.  However, as the record contains no evidence of any of these disabilities as it pertains to the right ankle, and the Veteran has not described symptoms that are suggestive of these disabilities, these Diagnostic Codes are not applicable and will be discussed no further. 

The Board notes that words such as moderate and marked are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just.  38 C.F.R. § 4.6. 

Procedural and Factual Background

The evidence of record includes the findings of VA examinations dated in June 2011, August 2013, and October 2019.  Further, VA treatment records for the entire appeals period are also of record and note the Veteran’s continuous complaints of pain associated with her right ankle disability.  However, there are no additional objective findings included in these treatment records different from the findings as noted in the examinations discussed in detail below. 

In June 2011, the Veteran was scheduled for a VA examination in connection with her claim for service connection.  At the time of this examination, the Veteran reported weakness, stiffness, swelling, tenderness and pain.  She indicates she does not experience heat, redness, giving way, lack of endurance, locking, fatigability, deformity, drainage, effusion, subluxation and dislocation.  The Veteran reported flare-ups of the right ankle 2 times per month and each time lasts for 10 days, with a severity level at 10.  The flare-ups are precipitated by physical activity.  She reported that she is unable to run during a flare-up, but denied any functional impairment or limitation of motion of the ankle.  Upon physical examination, range of motion testing revealed dorsiflexion to 20 degrees and, plantar flexion to 45 degrees, with no evidence of pain.  Upon repetitive use testing, there was no change in range of motion.  The examiner noted the joint function is not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  The examiner also noted evidence of instability, weakness, tenderness, and tender anterior and lateral, instability of lateral ligaments.  However, there was no evidence of edema, abnormal movement, effusion, redness, heat, deformity, guarding of movement, malalignment, drainage, subluxation, or ankylosis.  X-rays failed to show evidence of malunion of the os calcis or astragalus.  A diagnosis of right ankle ligament strain was given.  

The Veteran was again examined by VA in August 2013.  The Veteran denied flare-ups regarding the right ankle.  Range of motion testing revealed dorsiflexion to 20 degrees, and plantar flexion to 45 degrees, with no pain on examination.  There was also no evidence of pain on palpation.  There was no additional limitation of motion after repetitive testing, and no additional loss of function or loss in range of motion.  There was no evidence of ankylosis.  Muscle strength testing and joint stability were normal.  The examiner noted the Veteran had previously suffered shin splints, but no symptoms were reported.  Further, the examiner stated there are no contributing factors of weakness, fatigability, incoordination, or pain during flare-ups or on repeated use over time that would additionally limit the functional ability of the ankle joint.  There are no additional objective findings included in this examination.  

The Veteran was most recently examined by VA in October 2019 to ascertain the severity of her right ankle disability.  The Veteran reported weakness, stiffness, swelling, tenderness, and pain.  She denied heat, redness, giving way, lack of endurance, locking, fatigability, deformity, drainage, effusion, subluxation and dislocation.  The Veteran did report flare-ups occurring 2 times a month and lasting for 10 days.  She reported pain and an inability to walk for longer than 20 minutes.  

Upon physical examination, range of motion testing revealed dorsiflexion to 20 degrees and plantar flexion to 45 degrees.  The examiner noted there was pain on examination for plantar flexion.  There was tenderness to palpation and evidence of crepitus, but no evidence of pain weight-bearing.  There was evidence of pain on non-weightbearing.  Further, passive and active range of motion findings were the same.  The examiner further noted the Veteran was able to perform repetitive motion testing without additional loss of function or range of motion.  Pain was found to significantly limit functional ability with repeated use over a period of time and during flare-ups, resulting dorsiflexion to 10 degrees and plantarflexion to 30 degrees.  There were no additional contributing factors of disability of the right ankle noted.  There was no evidence of decreased muscle strength, muscle atrophy, or ankylosis, but instability of the right ankle was noted.  The examiner noted that x-ray findings failed to show any indication of malunion of the os calcis or astragalus. 

Analysis

Having considered the medical and lay evidence of record in light of the pertinent legal authority, the Board finds that the evidence does not warrant assigning a rating in excess of 10 percent for the right ankle disability prior to October 8, 2019.  However, effective from October 8, 2019, a rating of 20 percent is warranted. 

Period Prior to October 8, 2019

For the period prior to October 8, 2019, the Veteran’s right ankle disability is characterized by some limitation of motion and painful motion.  

The Board notes that a Veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss, meaning “the inability . . . to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance,” including as due to pain.  38 C.F.R. § 4.40 (2020); see Lyles v. Shulkin, 29 Vet. App. 107, 117 (2017).  A higher disability evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination.  38 C.F.R. § 4.45 (2020).  However, the Veteran's functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45.  See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016).

Here, range of motion findings reveal plantar flexion limited to, at worst, 45 degrees and dorsiflexion to 20 degrees, which closely approximates a moderate ankle disability and warrants the 10 percent rating currently assigned.  There were no additional findings showing functional loss or limitations of range of motion during either the June 2011 or August 2013 VA examination reports.  Thus, to the extent the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45 4.59, as well as the criteria in DeLuca and Mitchell, the Veteran’s functional loss did not equate to the criteria required for a 20 rating as her range of motion does not rise to the level of marked limitation.

The Board has also considered application of the holdings in the cases of Correia or Sharp for the period prior to October 8, 2019.  Here, for the period prior to October 8, 2019, the Board notes that the Veteran reported experiencing flare-ups of the right ankle only during the June 2011 VA examination, at which time she reported flare-ups occurring 2 times a month, lasting up to 10 days, and resulting in an inability to run.  However, she specifically denied experiencing any functional impairment or loss in range of motion during a flare-up.  Therefore, while the Board acknowledges the Veteran’s reported functional limitations during flare-ups, the evidence of record does not support a finding that the Veteran’s right ankle disability warrants the next higher 20 percent rating for the period prior to October 8, 2019, because, even when considering any impairment during flare-ups, there is no indication of functional impairment or loss in range of motion that would be considered marked limitation of motion. 

Further, there was also no evidence of pain during the June 2011 or August 2013 VA examinations, to include on weight-bearing.  Moreover, there was no evidence of pain during the range of motion testing generally, with no loss in range of motion or functional impairment at any point during the examinations.  Johnston v. Brown, 10 Vet. App. at 84; see also June 2011 VA Examination and August 2013 VA Ankle Conditions DBQ. 

Accordingly, for the period prior to October 8, 2019, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

Period Since October 8, 2019

Since October 8, 2019, the Board finds a rating of 20 percent is warranted.  Specifically, as noted in the October 8, 2019 VA examination report, during flare-ups and following use over a period of time, dorsiflexion was limited to 10 degrees and plantarflexion to 30 degrees.  The Board finds that this more closely approximates a marked ankle disability and warrants the higher 20 percent rating, effective from October 8, 2019.

A 20 percent rating is the maximum schedular rating available under Diagnostic Code 5271.  38 C.F.R. § 4.71a.  To warrant a higher rating, the Veteran’s right ankle must be manifested by ankylosis.  Id.  Here, although the Veteran has demonstrated limited motion, the Veteran’s ankle is not fixed.  Indeed, the Veteran’s right ankle has never been shown to be ankylosed to warrant a higher disability rating, and the Veteran does not contend such.  Further, because the right ankle disability has been assigned the maximum rating based on limitation of motion, the DeLuca v. Brown criteria are not applicable.  See Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also 38 C.F.R. §§ 4.40, 4.45, 4.59; 8 Vet. App. 202, 206-07 (1995).

Further, to the extent October 2019 VA examination failed to comply with the holdings in Correia or Sharp, such non-compliance is harmless error.  In this respect, the Court in Johnston, supra, indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application.  Johnston, 10 Vet. App. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis).  Thus, as the Veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires evidence of ankylosis, 38 C.F.R. § 4.40 and 4.45 are not for application.  

In reaching the above conclusions, the Board has not overlooked the Veteran’s statements with regard to the severity of her ankle disability.  In this regard, the Veteran is competent to report on factual matters of which she has firsthand knowledge, e.g., experiencing chronic pain in her right ankle.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran has provided lay evidence through written statements and during her prior Board hearing throughout the course of this appeal with respect to the presence of pain and the severity of such during her VA examinations.  She is competent to provide such statements, and the Board finds that the Veteran’s statements are credible.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Nevertheless, the Board finds the Veteran’s statements are not indicative of symptomatology that is more severe than that observed at her VA examinations and do not describe symptoms that would warrant a higher rating than those currently assigned.  As such, the objective medical findings provided by the Veteran’s VA examination reports have been accorded greater probative weight.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  

Accordingly, for the period since October 8, 2019, a rating of 20 percent, but no higher, is granted.  U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

4. Right and Left Knee Disabilities

The Veteran is seeking entitlement to an initial rating in excess of 10 percent for her right and left knee disabilities, each rated pursuant to Diagnostic Code 5257.  

The rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257.

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology.  VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98 (Aug. 1998).  Moreover, the General Counsel also held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint.  VAOGCPREC 9-2004 (Sept. 2004).

For purposes of this decision, the Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees.  38 C.F.R. § 4.71a, Plate II.

Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion.  Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent.  38 C.F.R. § 4.71a , Diagnostic Code 5260.

Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

Additionally, ratings of the knee may also be assigned under other Diagnostic Codes.  Diagnostic Codes 5258 and 5259 involve the meniscus.  Diagnostic Code 5256 evaluates ankylosis of the knee.  Diagnostic Code 5262 evaluates impairment of the tibia and fibula.  Diagnostic Code 5263 evaluates genu recurvatum.  However, as will be discussed below, the record contains no evidence of these impairments.  

For the sake of brevity, the Board will address the evidence of record with respect to the right and left knees together before undertaking separate legal discussions regarding whether initial ratings in excess of 10 percent for either the right or left knees pursuant to Diagnostic Coded 5271 is warranted.  

Factual Analysis

The Veteran was first examined by VA in June 2011 in connection with her claims for service connection.  The Veteran reported pain after running or long walks.  She reported swelling, giving way, lack of endurance, tenderness and pain. She indicated she did not experience weakness, stiffness, heat, redness, locking, fatigability, deformity, drainage, effusion, subluxation and dislocation.  The Veteran reported experiencing the following flare-ups as often as 3 times per week and each time lasts for 2 days, with a severity level of 8.  She stated the flare-ups are precipitated by physical activity and are alleviated by rest and Motrin 800mg.  During the flare-ups she experiences functional impairment described as limited to walking 2 miles.  X-rays showed normal knees, bilaterally.

Range of motion testing revealed the following findings for the right knee: flexion to 130 degrees and extension to 0 degrees.  Pain was noted at the endpoints of flexion and extension.  The Veteran was able to perform repetitive use testing without additional limitation.  The examiner also noted the right knee was not limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  There were no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or guarding of movement.  Examination of the right knee revealed popping, but no genu recurvatum, locking pain, or crepitus.  The medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test and the medial/lateral meniscus stability test were all within normal limits.

Range of motion testing revealed the following findings for the left knee: flexion to 125 degrees and extension to 0 degrees.  Pain was noted at the endpoints of flexion and extension.  The Veteran was able to perform repetitive use testing without additional limitation.  The examiner also noted the left knee was not limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  There were no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or guarding of movement.  Examination of the left knee revealed popping, but no genu recurvatum, locking pain, or crepitus.  The medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test and the medial/lateral meniscus stability test were all within normal limits.

The Veteran was next examined by VA in August 2013.  The diagnoses of left and right knee strain were confirmed.  She reported constant pain, knees popping, and “giving out.”  The Veteran denied experiencing flare-ups in either the right or left knees.  Range of motion testing revealed flexion to 140 degrees and extension to 0 degrees, bilaterally.  There was no pain on motion noted.  The Veteran was able to perform repetitive use testing with no additional limitation of motion or functional impairment noted for either knee.  Tenderness and pain on palpation was noted, bilaterally.  Muscle strength testing was normal and instability tests were negative, bilaterally.  There was no evidence of subluxation or dislocation for either knee.  No additional objective findings were noted on examination.  

The Veteran was most recently examined by VA in October 2019.  The Veteran again had flare-ups of either knee.  The examiner amended the diagnoses to include chondromalacia of the right and left knees, and infrapatellar tendonitis of the left knee.   

Range of motion testing revealed the following findings for the right knee: flexion to 100 degrees and extension to 0 degrees, with pain.  There was objective evidence of localized tenderness or pain on palpation.  There was no evidence of pain on nonweight-bearing, or of crepitus.  The Veteran was able to perform repetitive use testing, with no additional limitation in range of motion or limitation of function noted.  Pain was noted to significantly limit functional ability with repeated use over a period of time, resulting in flexion to 90 and extension to 0.  The examiner indicated there are no additional contributing factors of disability.  Muscle strength was normal.  There was also no evidence of meniscus conditions, muscle atrophy, ankylosis, instability, subluxation, or effusion.  Finally, the examiner noted tenderness beneath the patella and tenderness to palpation over the medial and lateral joints.  No other objective findings were noted on examination.  Regarding the Correia criteria, there was no evidence of pain on nonweight-bearing, and passive range of motion findings were the same as active.  

Range of motion testing revealed the following findings for the left knee: flexion to 120 degrees and extension to 0 degrees, with pain.  There was objective evidence of localized tenderness or pain on palpation.  There was no evidence of pain on nonweight-bearing, or of crepitus.  The Veteran was able to perform repetitive use testing, with no additional limitation in range of motion or limitation of function noted.  Pain was noted to significantly limit functional ability with repeated use over a period of time, resulting in flexion to 90 and extension to 0.  The examiner indicated there are no additional contributing factors of disability.  There was no evidence of meniscus conditions, muscle atrophy, ankylosis, instability, or subluxation.  Finally, the examiner noted tenderness beneath the patella and tenderness to palpation over the medial and lateral joints.  No other objective findings were noted on examination.  Regarding the Correia criteria, there was no evidence of pain on nonweight-bearing, and passive range of motion findings were the same as active.

Also, of record are significant VA treatment records dated throughout the pendency of the appeal.  These records consistently show the Veteran’s treatment for both her left and right knee disabilities, to include her reports of chronic pain, and the objective findings in the treatment records are reflective of the findings noted above in the numerous VA examination reports.

Right Knee Disability

Based on the evidence as discussed above, the Board finds that a rating in excess of 10 percent for the right knee is not warranted at any point during the appeals period.  

In this respect, pursuant to Diagnostic Code 5257, the next higher 20 percent rating is warranted for moderate recurrent subluxation or lateral instability.  Here, the objective findings of the June 2011, August 2013, and October 2019 VA examiners show the Veteran has never actually had instability or subluxation.  In this respect, the Board notes the Veteran’s subjective complaints of popping and giving way as noted in the June 2011 VA examination report, which she is competent to report.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  The Board finds the Veteran’s statements regarding having popping and giving way of the right knee to be credible, but they are not indicative of symptomatology that is more severe than that observed at her VA examinations and do not describe symptoms that would warrant a rating higher than the currently assigned 10 percent rating. 

Therefore, when weighing the Veteran’s lay statements with the objective evidence, the Board finds that the Veteran suffers from, at most, mild instability of the right knee, especially given that all objective findings are negative with respect to instability or subluxation.  

The Board has considered whether the Veteran is entitled to a separate rating under Diagnostic Code 5260, based on limitation of flexion.  In order to warrant a separate noncompensable rating, flexion must be limited to 60 degrees.  A 10 percent rating requires flexion to 45 degrees.  Here, however, flexion has been limited to, at most, 90 degrees, with repeated use over a period of time.  See October 2019 VA examination.  The VA treatment records do not include any range of motion findings that would support the assignation of a separate rating.  Therefore, a separate rating based on limitation of flexion is not warranted.  

The Board has also considered whether a separate rating based on limitation of extension pursuant to Diagnostic Code 5261.  However, the record shows the Veteran’s extension has been 0 degrees without pain throughout the pendency of the appeal.  Therefore, a separate 10 percent rating is not warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5261. 

The Board has considered whether a separate or higher evaluation is warranted under an alternate diagnostic code.  However, as noted above, the preponderance of the evidence weighs against a finding of ankylosis; dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the knee joint; symptomatic removal of semilunar cartilage; or, malunion or nonunion of the tibia and fibula.  See June 2011 VA Examination, August 2013 Knee and Lower Leg Conditions DBQ; and, October 2019 Knee and Lower Leg Conditions DBQ.  Therefore, a separate or increased rating for right knee symptomatology pursuant to Diagnostic Codes 5256, 5258, 5259, or 5262, is not warranted. 

Additionally, whether the Veteran’s right knee disability resulted in a level of functional loss greater than that already contemplated by the assigned rating at any point during the appeal period has also been considered.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59.  In this respect, a Veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss, such as the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance, including as due to pain.  38 C.F.R. § 4.40 (2020); see Lyles v. Shulkin, 29 Vet. App. 107, 117 (2017).  A higher disability evaluation may also be awarded where there is a reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.  38 C.F.R. § 4.45 (2020).  However, the veteran’s functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45.  See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016).

Here, the VA examinations and treatment records note the right knee disability was characterized by pain and limitation of flexion.  However, the rating schedule is intended to allow for compensation for painful motion of a joint.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). 

Moreover, while the Veteran argues that her currently assigned 10 percent rating does not consider functional loss due to pain, the evidence of record does not support this argument.  Specifically, the Board acknowledges that the multiple VA examinations of record note pain on motion.  However, as discussed above, her flexion has never been limited to more than 90 degrees (see again October 2019 VA examination), which is significantly greater than is required for a noncompensable evaluation pursuant to Diagnostic Code 5260.  In fact, her currently assigned 10 percent rating under Diagnostic Code 5257 specifically contemplates the noted presence of pain and any functional limitations resulting from this disability as she is not entitled to a compensable rating based on her range of motion findings at any point during the appeals period, or a higher rating under instability.  Thus, the probative evidence does not reflect functional loss that is not already contemplated by the assigned rating of 10 percent.  

As for the Correia and Sharp requirements, the Veteran is service-connected for instability and not a Diagnostic Code reliant on limitation of motion.  In fact, the Board has considered whether she is entitled to separate ratings based on limitation of motion and has concluded against such a finding.  Moreover, the Veteran only reported flare-ups in the June 2011 VA examination, at which time, flexion was noted to be to 100 degrees.  The Board also notes that at no point during the appeals period do the range of motion findings of the several VA examiners more nearly approximate the findings as required for a separate rating based on limitation of motion as her flexion was found to be 90 degrees at its most limiting following repeated use over a period time.  While pain has been consistently noted during the appeals period, there is simply no basis to assign a separate rating based on limitation of motion, even without consideration of pain on weight-bearing/ non weight-bearing.  Therefore, while the Board acknowledges the objective findings of pain on weight bearing with respect to the right knee in the claims file and the Veteran’s reported functional limitations during flare-ups as found in the June 2011 VA examination report, the evidence of record does not support a finding that the Veteran’s right knee disability warrants a separate rating based on limitation of motion.   

In reaching the above conclusions, the Board has not overlooked the Veteran’s statements with regard to the severity of her right knee disability.  In this regard, the Veteran is competent to report on factual matters of which she has firsthand knowledge, e.g., experiencing chronic pain in her knee.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran has provided lay evidence through written statements and during her prior Board hearing throughout the course of this appeal with respect to the presence of pain and the severity of such during her VA examinations.  She is competent to provide such statements, and the Board finds that the Veteran’s statements are credible.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Nevertheless, the Board finds the Veteran’s statements are not indicative of symptomatology that is more severe than that observed at her VA examinations and do not describe symptoms that would warrant a higher rating than those currently assigned.  As such, the objective medical findings provided by the Veteran’s VA examination reports have been accorded greater probative weight.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  

Accordingly, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

Left Knee Disability

Based on the evidence as discussed above, the Board finds that a rating in excess of 10 percent for the left knee is not warranted at any point during the appeals period.  

In this respect, pursuant to Diagnostic Code 5257, the next higher 20 percent rating is warranted for moderate recurrent subluxation or lateral instability.  Here, the objective findings of the June 2011, August 2013, and October 2019 VA examiners show the Veteran has never actually had instability or subluxation.  In this respect, the Board notes the Veteran’s subjective complaints of popping and giving way as noted in the June 2011 VA examination, which the Board finds she is competent to report.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  The Board finds the Veteran’s statements regarding having popping and giving way of the left knee to be credible, but they are not indicative of symptomatology that is more severe than that observed at her VA examinations and do not describe symptoms that would warrant a rating higher than the currently assigned 10 percent rating. 

Therefore, when weighing the Veteran’s lay statements with the objective evidence, the Board finds that the Veteran suffers from, at most, mild instability of the left knee, especially given that all objective findings are negative with respect to instability or subluxation.  

The Board has considered whether the Veteran is entitled to a separate rating under Diagnostic Code 5260, based on limitation of flexion.  In order to warrant a separate noncompensable rating, flexion must be limited to 60 degrees.  A 10 percent rating requires flexion to 45 degrees.  Here, however, flexion has been limited to, at most, 90 degrees, with repeated use over a period of time.  See October 2019 VA examination.  The VA treatment records do not include any range of motion findings that would support the assignation of a separate rating.  Therefore, a separate rating based on limitation of flexion is not warranted.  

The Board has also considered whether a separate rating based on limitation of extension pursuant to Diagnostic Code 5261.  However, the record shows the Veteran’s extension has been 0 degrees without pain throughout the pendency of the appeal.  Therefore, a separate 10 percent rating is not warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5261. 

The Board has considered whether a separate or higher evaluation is warranted under an alternate diagnostic code.  However, as noted above, the preponderance of the evidence weighs against a finding of ankylosis; dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the knee joint; symptomatic removal of semilunar cartilage; or, malunion or nonunion of the tibia and fibula.  Therefore, a separate or increased rating for left knee symptomatology pursuant to Diagnostic Codes 5256, 5258, 5259, or 5262, is not warranted. 

Additionally, whether the Veteran’s left knee disability resulted in a level of functional loss greater than that already contemplated by the assigned rating at any point during the appeal period has also been considered.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59.  Here, the VA examinations and treatment records note the left knee disability was characterized by pain and some limitation of flexion.  However, the rating schedule is intended to allow for compensation for painful motion of a joint.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). 

Moreover, while the Veteran argues that her currently assigned 10 percent rating does not consider functional loss due to pain, the evidence of record does not support this argument.  Specifically, the Board acknowledges that the multiple VA examinations of record note pain on motion.  However, as discussed above, her flexion has never been limited to more than 90 degrees (see again October 2019 VA examination), which is significantly greater than is required for a noncompensable evaluation pursuant to Diagnostic Code 5260.  In fact, her currently assigned 10 percent rating under Diagnostic Code 5257 specifically contemplates the noted presence of pain and any functional limitations resulting from this disability as she is not entitled to a compensable rating based on her range of motion findings at any point during the appeals period, or a higher rating under instability.  Thus, the probative evidence does not reflect functional loss that is not already contemplated by the assigned rating of 10 percent.  

As for the Correia and Sharp requirements, the Veteran is service-connected for instability and not a Diagnostic Code reliant on limitation of motion.  In fact, the Board has considered whether she is entitled to separate ratings based on limitation of motion and has concluded against such a finding.  Moreover, the Veteran only reported flare-ups in the June 2011 VA examination, at which time, flexion was noted to be to 120 degrees.  The Board also notes that at no point during the appeals period do the range of motion findings of the several VA examiners more nearly approximate the findings as required for a separate rating based on limitation of motion as her flexion was found to be 90 degrees at its most limiting following repeated use over a period time.  While pain has been consistently noted during the appeals period, there is simply no basis to assign a separate rating based on limitation of motion, even without consideration of pain on weight-bearing/ non weight-bearing.  Therefore, while the Board acknowledges the objective findings of pain on weight bearing with respect to the left knee in the claims file and the Veteran’s reported functional limitations during flare-ups as found in the June 2011 VA examination, the evidence of record does not support a finding that the Veteran’s left knee disability warrants a separate rating based on limitation of motion.   

In reaching the above conclusions, the Board has not overlooked the Veteran’s statements with regard to the severity of her left knee disability.  In this regard, the Veteran is competent to report on factual matters of which she has firsthand knowledge, e.g., experiencing chronic pain in her knee.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran has provided lay evidence through written statements and during her prior Board hearing throughout the course of this appeal with respect to the presence of pain and the severity of such during her VA examinations.  She is competent to provide such statements, and the Board finds that the Veteran’s statements are credible.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Nevertheless, the Board finds the Veteran’s statements are not indicative of symptomatology that is more severe than that observed at her VA examinations and do not describe symptoms that would warrant a higher rating than those currently assigned.  As such, the objective medical findings provided by the Veteran’s VA examination reports have been accorded greater probative weight.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  

Accordingly, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

5. Lumbar spine disability

The Veteran is seeking an initial rating in excess of 10 percent for a lumbar spine disability pursuant to Diagnostic Code 5237.  

Diagnostic Code 5237 directs VA to rate the Veteran under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes.  38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243 (2019).

Under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion.  Under these diagnostic codes, a 10 percent rating is assigned when rating forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only.  Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine.

As described above, the higher rating for 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71, Diagnostic Code 5242.  The Court, citing Dorland’s Illustrated Medical Dictionary (28th ed. 1994), has recognized that ankylosis is defined as “immobility and consolidation of a joint due to disease, injury or surgical procedure,” for VA compensation purposes.  See Colayong v. West, 12 Vet. App. 524, 528 (1999). 

The General Rating Formula for Diseases and Injuries of the Spine, provides further guidance in rating diseases or injuries of the spine.  In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code.  Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  See also Plate V, 38 C.F.R. § 4.71a.

In the June 2011 VA examination report, conducted in connection with her claim for service connection, the examiner noted the Veteran’s report that she is able to walk without limitation.  The Veteran reports stiffness and decreased motion, but denied fatigue, spasms, paresthesia, numbness, weakness, and bowel or bladder problems.  She reported constant, localized pain, moderate in level.  The Veteran stated it is exacerbated by physical activity and driving and sleeping.  The Veteran reported flare-ups, during which she experienced limitation of motion of the joint, described as difficulty bending over and getting out of bed.  Finally, the Veteran denied experiencing radiating symptoms.  

Upon physical examination, range of motion testing revealed flexion to 90 degrees; extension to 20 degrees; right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees, all with no evidence of pain.  The Veteran was able to perform repetitive use testing with no additional limitation in range of motion, incoordination, fatigue, or lack of endurance.   

The examiner noted tenderness, but no guarding or muscle spasms.  Spinal contour was preserved and there was no evidence of weakness.  Muscle tone and musculature were normal.  Straight leg raising tests were negative, bilaterally, as was Lasègue’s sign.  There was no atrophy present in the limbs.  The examiner did not find evidence of any neurological impairments, including radiculopathy and bowel or bladder impairments.  Finally, there was no evidence of ankylosis or IVDS. 

The Veteran was next examined by VA in August 2013, in connection with her appeal for a higher initial rating.  At that time, the Veteran denied experiencing flare-ups.  Range of motion testing revealed flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees, with no pain reported.  The examiner stated the Veteran was able to perform repetitive use testing with no additional limitation of function or change in range of motion.  There was no evidence of fatigue, weakness, or lack of endurance.  The examiner noted there was no evidence of tenderness, spasms, weakness, or muscle atrophy.  Muscle strength testing, deep tendon reflexes, and sensory examination were all normal.  The examiner did not find evidence of any neurological impairments, including radiculopathy and bowel or bladder impairments.  Finally, there was no evidence of ankylosis or IVDS. 

The Veteran was most recently examined by VA in October 2019.  The Veteran reported lumbar pain radiating to her left and right toes, a bilateral pinch in the low back, and needles to her feet.  She reported functional limitations in that she is only able to lift 50 percent or less, does not exercise, and has problems sleeping due to pain resulting from her orthopedic disabilities.  

Upon physical examination, range of motion testing revealed flexion to 90 degrees; extension to 20 degrees; right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees.  The examiner indicated that pain was noted on examination for left lateral flexion but did not result in/ cause functional loss.  The Veteran was able to perform repetitive use testing with no additional limitation in range of motion, incoordination, fatigue, or lack of endurance.  The examiner acknowledged that the examination was not conducted immediately after repetitive use over time, but was medically consistent with the Veteran's statements describing functional loss with repetitive use over time.  

However, concerning repeated use over a period of time, pain was noted to significantly limit functional ability and result in functional loss.  The examiner determined the functional loss could be measured in range of motion testing, which revealed flexion to 80 degrees; extension to 20 degrees; right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees.  Additionally, during a flare-up, the examiner found range of motion of the thoracolumbar spine was limited by pain and resulted in flexion to 80 degrees; extension to 20 degrees; right and left lateral flexion to 10 degrees, and right and left lateral rotation to 20 degrees.  The examiner acknowledged that the examination was not conducted during a flare-up, but was medically consistent with the Veteran’s statements describing functional loss during a flare-up.  

The examiner noted objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine, but no evidence of pain on weight-bearing, or non-weight bearing.  The examiner also noted that passive range of motion findings were the same as the active range of motion findings  There was no guarding or muscle spasms.  Straight leg raising tests were negative on the left and positive on the right.  The Veteran had decreased deep tendon reflexes on the right side.  The examiner determined the Veteran had severe radiculopathy of the sciatic nerve in the right lower extremity, characterized by severe constant pain, paresthesias and/or dysesthesias, and numbness.  There was no atrophy present in the limbs.  The examiner did not find evidence of any other neurological impairments, including radiculopathy in the left lower extremity and bowel or bladder impairments.  Finally, there was no evidence of ankylosis or IVDS. 

Additionally, the Veteran’s VA and private treatment records show her continuous complaints of pain associated with the low back disability throughout the pendency of the appeal.  However, there are no objective range of motion findings or clinical findings in these treatment records that are materially different from the objective findings noted in the VA examinations as discussed above.   

Based on the evidence as noted above, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for her service-connected low back disability.  In particular, the Board acknowledges the Veteran’s complaints of back pain, which the record clearly documents.  However, the Veteran’s flexion was limited, at most, to 80 degrees at the October 2019 VA examination.  Her combined range of motion was 230 degrees in June 2011, 240 degrees in August 2013, and 160 degrees in October 2019.  Additionally, while the Veteran reported flare-ups in both the June 2011 and October 2019 VA examinations, her range of motion was limited to 80 degrees at that time.  

The Board also notes that a Veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss, such as the inability . . . to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance, including as due to pain.  38 C.F.R. § 4.40 (2020); see Lyles v. Shulkin, 29 Vet. App. 107, 117 (2017).  A higher disability evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination.  38 C.F.R. § 4.45 (2020).  However, the veteran's functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45.  See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016).

Here, with respect to functional loss, both examinations noted pain, but no additional limitations on repetitive motion, or resulting in functional loss.  Regardless, the evidence shows that the Veteran’s range of motion for flexion was well in excess of 60 degrees, which is required for the next higher 20 percent rating for the entire period on appeal.  Therefore, the Board finds that even when considering the functional limitations of less movement than normal as identified in 38 C.F.R. §§ 4.40, 4.45 4.59 as well as the criteria in DeLuca v. Brown and Mitchell v Shinseki, the Veteran’s functional loss did not equate to the criteria required for a 20 percent rating when considering the cumulative picture of her low back disability.  8 Vet. App. 202 (1995), 25 Vet. App. 32 (2011).

Further, to the extent the VA examinations did not comply with the holdings in Correia or Sharp, either individually or collectively, such non-compliance is harmless error.  28 Vet. App. 158 (2016), 29 Vet. App. 26 (2017).  In this respect, while the Veteran reported flare-ups during the June 2011 and October 2019 examinations, the Veteran’s reported functional limitations resulted in difficulty lifting and engaging in strenuous activity (such as exercise).  Even considering the additional restrictions due to her flare-ups and the decrease in her range of motion, when combining all the numerical values of her ranges of motion, she is still able to move well in excess of the minimum required for the next higher rating (see again October 2019 VA examination).  Finally, there was no evidence of pain on weight-bearing at any point during the examinations.  

There is no other medical evidence, aside from what has been discussed in detail above, which would support the Veteran’s contentions that her lumbar spine disability has increased in severity beyond the currently assigned 10 percent rating at any point during the appeals period.  

Neurologic Impairments

In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code.

Here, the Regional Office (RO) granted the Veteran a separate rating for right lower extremity radiculopathy, effective from October 8, 2019 in a March 2020 rating decision.  This associated disability will be separately addressed below.  

However, as it pertains to other neurological manifestations, to include the left lower extremity or bowel and bladder impairment, the evidence below does not support the assignation of a separate rating.  

The Board notes the Veteran’s subjective complaints of needles in the left toes and needles to her feet.  See October 2019 Back Conditions DBQ.  However, the October 2019 VA examiner specifically determined that straight leg raising test was negative on the left and there was no other evidence of any other neurological impairments, including radiculopathy in the left lower extremity, bowel or bladder impairments, or IVDS.  

Moreover, the June 2011 and August 2013 VA examiners also determined there was no objective evidence of IVDS, left lower extremity radiculopathy, or bowel or bladder impairments.  See again June 2011 VA Examination, August 2013 Back Conditions DBQ, and October 2019 VA Back Conditions DBQ.  

Therefore separate ratings for any associated neurological impairments is not warranted.  

In reaching the above conclusions, the Board has not overlooked the Veteran’s statements with regard to the severity of her lumbar spine disability.  In this regard, the Veteran is competent to report on factual matters of which she has firsthand knowledge, e.g., experiencing chronic pain in her back.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran has provided lay evidence through written statements and during her prior Board hearing throughout the course of this appeal with respect to the presence of pain and the severity of such during her VA examinations.  She is competent to provide such statements, and the Board finds that the Veteran’s statements are credible.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Nevertheless, the Board finds the Veteran’s statements are not indicative of symptomatology that is more severe than that observed at her VA examinations and do not describe symptoms that would warrant a higher rating than those currently assigned.  As such, the objective medical findings provided by the Veteran’s VA examination reports have been accorded greater probative weight.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  

As a preponderance of the evidence is against the award of an initial rating in excess of 10 percent for the lumbar spine disability, the benefit-of-the-doubt doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).

6. Radiculopathy of the right lower extremity 

The Veteran is seeking an initial rating in excess of 40 percent for her service-connected radiculopathy of the right lower extremity.  

Again, by way of history, the RO granted service connection for radiculopathy of the right lower extremity in a March 2020 rating decision and assigned an initial rating of 40 percent, effective from October 8, 2019, the date of a VA examination showing the presence of this disability.

However, as the Court held in Hamilton v. Brown, a valid notice of disagreement filed to a particular claim extends to all subsequent RO and Board adjudications on the same claim until a final RO or Board decision has been rendered in that matter, or the appeal has been withdrawn by the claimant.  Hamilton v. Brown, 4 Vet. App. 528, 538 (1993) (en banc), aff'd, 39 F.3d 1574, 1582-85 (Fed. Cir. 1994).

Here, by filing her claim for an increased rating for the lumbar spine disability and perfecting her appeal to the Board, all manifestations of the lumbar spine disability must be considered, to include the neurological manifestations.  Even in light of the March 2020 rating decision granting the separate rating for the right lower extremity radiculopathy, the Board finds that this claim remains in appellate status until a final disposition of the claim is made, and no additional notice of disagreement is required in order to continue the appellate process.  See ibid.  Thus, the Board has jurisdiction over this claim and must consider whether she is entitled to a higher rating.  

The Veteran is currently rated at 40 percent under Diagnostic Code 8520.  Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve.  38 C.F.R. § 4.124a.  Under that code, a 40 percent rating is appropriate for moderately severe, incomplete paralysis.  Id.  A 60 percent rating is appropriate for severe, incomplete paralysis with muscular atrophy.  Id.  An 80 percent rating is appropriate for complete paralysis of the sciatic nerve, where the foot dangles and drops, no active movement is possible for muscles below the knee, and flexion of the knee is weakened or (very rarely) lost.  Id. 

Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as “mild,” “moderate,” “moderately severe,” and “severe.”  Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are “equitable and just.”  38 C.F.R. § 4.6 (2018).

The term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture 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 ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor.  See 38 C.F.R. § 4.124a, note at “Diseases of the Peripheral Nerves.” 

For the sake of brevity, the Board will refer to the evidence in the lumbar spine disability discussion above to address the claim of entitlement to an initial rating in excess of 40 percent for right lower extremity radiculopathy.

Turning to the evidence of record, VA examinations conducted in June 2011 and August 2013, along with the available post-service treatment records, prior to October 2019 failed to show a diagnosis of radiculopathy.  However, the subsequent October 2019 VA examiner noted the straight leg raising test was positive in the right leg.  The examiner diagnosed the Veteran with severe right lower extremity radiculopathy.  

The Board acknowledges the Veteran’s contentions that she suffers from constant radiating pain in her right lower extremity, which has been confirmed by the medical evidence of record.  Further, the findings of the trained VA examiner supports the Veteran’s contentions.  

Nevertheless, the Board does not find a rating in excess of 40 percent is warranted at any point during the appeals period.  Here, as evidenced by the findings of the October 2019 VA examiner, the Veteran’s disability may not be considered “wholly sensory” as it does result in the inability to move during flare-ups.  Further, there is no indication of muscle atrophy of the right lower extremity.  As such, the characterization of moderately severe is most appropriate.  Therefore, the Veteran is not entitled to the higher 60 or 80 percent ratings as the evidence does not show muscle atrophy or complete paralysis of the sciatic nerve, respectively.  

(Continued on the next page)

 

As a preponderance of the evidence is against the award of an initial rating in excess of 40 percent for radiculopathy of the right lower extremity, the benefit-of-the-doubt doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).

 

 

YVETTE R. WHITE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	T. Berry, 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.