Citation Nr: 21003320
Decision Date: 01/21/21	Archive Date: 01/21/21

DOCKET NO. 12-16 226
DATE: January 21, 2021

ORDER

Entitlement to an evaluation in excess of 40 percent from September 18, 2009 to June 25, 2019 for radiculopathy in the right upper extremity is denied.

Entitlement to an evaluation of 70 percent from June 26, 2019 for radiculopathy in the right upper extremity is granted.

Entitlement to an evaluation in excess of 10 percent from May 22, 2009 to April 22, 2010 for right knee chondromalacia is denied.

Entitlement to an evaluation in excess of 20 percent from April 23, 2010 for right knee chondromalacia is denied.

Entitlement to a separate 20 percent rating for right knee limitation of extension since June 26, 2019 is granted. 

Entitlement to a separate evaluation of 10 percent effective May 22, 2009 for right knee instability is granted.

Entitlement to an evaluation in excess of 10 percent from May 22, 2009 to June 25, 2019 for left knee chondromalacia is denied.

Entitlement to an evaluation in excess of 20 percent from June 26, 2019 for left knee chondromalacia is denied.

Entitlement to a separate evaluation of 10 percent effective May 22, 2009 for left knee instability is granted.

Entitlement to an evaluation in excess of 20 percent from September 18, 2009 to June 25, 2019 for cervical strain with degenerative disc disease (hereinafter “neck condition”) is denied.

Entitlement to an evaluation in excess of 30 percent since June 26, 2019 for a neck condition is denied.

Entitlement to an evaluation in excess of 10 percent from May 22, 2009 to September 17, 2009 for degenerative arthritis, thoracic spine (hereinafter “back condition”) is denied.

Entitlement to an evaluation in excess of 20 percent from September 18, 2009 to June 25, 2019 for a back condition is denied.

Entitlement to an evaluation in excess of 40 percent from June 26, 2019 for a back condition is denied.

Entitlement to an earlier effective date for the 10 percent rating for the back condition prior to May 22, 2009, and for the 20 percent rating prior to September 18, 2009, is denied.

REMANDED

Entitlement to total disability rating based on individual unemployability (TDIU) prior to September 18, 2009 is remanded for extraschedular consideration.

FINDINGS OF FACT

1. Between September 18, 2009 and June 25, 2019, the Veteran’s right upper extremity cervical radiculopathy manifested by symptoms comparable to moderate incomplete paralysis of all upper radicular nerve groups.

2. Since June 26, 2019, the Veteran’s right upper extremity cervical radiculopathy manifested by symptoms comparable to severe incomplete paralysis of all upper radicular nerve groups.

3. For the entire period on appeal, the evidence shows there is instability in the Veteran’s left knee and right knee with the use of knee braces, and that he falls when not wearing the braces, which more nearly approximates slight instability.

4. For the period on appeal prior to April 23, 2010, the right knee condition had range of motion no worse than limitation of flexion to 90 degrees, with normal extension, complaints of painful motion.  

5. On April 23, 2010, the Veteran complained of locking and catching in the right knee and MRI showed a meniscus tear.

6. Since June 26, 2019, the right knee condition includes limitation of extension to approximately 15 degrees with pain, along with limitation of flexion to 90 degrees, pain, locking due to meniscus tear, and functional loss.

7. For the period on appeal prior to April 23, 2010, the left knee condition had range of motion no worse than limitation of flexion to 90 degrees, with normal extension, complaints of painful motion.  

8. Since June 26, 2019, the left knee condition includes limitation of extension to approximately 15 degrees with pain, along with limitation of flexion to 90 degrees, pain, and functional loss.

9. Prior to June 26, 2019, the Veteran’s neck condition resulted in complaints of chronic pain, limited motion with pain and spasms, with forward flexion limited to 20 degrees, with limitation to at worst 16 degrees after repetitive testing.  He does not have incapacitating episodes that required bed rest prescribed by a physician.

10. Since June 26, 2019, the Veteran’s neck condition resulted in forward flexion limited to 10 degrees, but there was no evidence of ankylosis of the spine, nor did he have incapacitating episodes that required bed rest prescribed by a physician. 

11. Prior to September 18, 2009, the Veteran’s back condition manifested as chronic pain, limited motion to flexion of 80 degrees with pain, and muscle spasms.  

12. Between September 18, 2009 and June 25, 2019, the Veteran’s back condition resulted in complaints of chronic pain and functional loss during flareups, and muscle spasms; but his forward flexion was no worse than limited to 45 degrees and there was no evidence of ankylosis of the spine, nor did he have incapacitating episodes with a duration of at least four weeks in 12 months with bed rest prescribed by a physician 

13. Since June 26, 2019, the Veteran’s back condition has been productive of limitation of motion, pain, and weakness, more nearly approximating limitation of flexion of the thoracolumbar spine to 30 degrees or less when accounting for additional pain during flare ups, with muscle spasms and guarding resulting in abnormal gait and spinal contour, and locking which makes him immobile and he has a regular use for a wheelchair.

14. The initial application requesting an increased evaluation for the back condition was received by VA on May 22, 2009.  Prior to May 22, 2009, there is no evidence of a formal or informal claim for an increased rating for the back condition.  

15. On September 18, 2009, the Veteran filed his TDIU claim.  The first medical evidence factually showing the back disability had worsened was dated in February 2010. 

CONCLUSIONS OF LAW

1. The criteria for an evaluation in excess of 40 percent for the service-connected right upper extremity cervical radiculopathy between September 18, 2009 and June 25, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8613.

2. The criteria for an evaluation of 70 percent for the service-connected right upper extremity cervical radiculopathy since June 26, 2019 have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.124a, DC 8613

3. The criteria for a rating in excess of 10 percent prior to April 23, 2010 for the right knee chondromalacia have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260.

4. The criteria for a rating in excess of 20 percent since April 23, 2010 for right knee chondromalacia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.27, 4.71a, DC 5258.

5. The criteria for a separate rating of 20 percent since June 26, 2019, for limitation of extension of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5261.

6. The criteria for a separate evaluation of 10 percent for right knee instability effective May 22, 2009 have been met. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.20, 4.71a, DC 5257.

7. The criteria for a rating in excess of 10 percent prior to June 26, 2019 for the left knee chondromalacia have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260.

8. The criteria for a rating in excess of 20 percent since June 26, 2019, for left knee chondromalacia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5261.

9. The criteria for a separate evaluation of 10 percent for left knee instability effective May 22, 2009 have been met. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.20, 4.71a, DC 5257.

10. The criteria for an evaluation in excess of 20 percent for the neck condition from September 18, 2009 through June 26, 2019; and in excess of 30 percent since June 26, 2019 were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5243.

11. The criteria for an evaluation in excess of 10 percent for the service-connected back condition prior to September 18, 2009; in excess of 20 percent from September 18, 2009 through June 25, 2019; and in excess of 40 percent from June 26, 2019 were not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242.

12. The criteria for an effective date prior to May 22, 2009, for the 10 percent evaluation and prior to September 18, 2009 for the 20 percent evaluation for the back condition have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1981 to October 2001.  This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA).  

These matters were before the Board in November 2016; they were remanded for additional development.  Thereafter, in October 2018 the claims were again remanded for additional evidentiary development for addendum opinions and updated VA examinations as the 2017 VA examinations were deemed insufficient and the Veteran argued they were inaccurate.  Having fully reviewed the electronic claims file, the Board finds that the RO substantially complied with the Board’s prior remand directives to the extent possible as to the issues decided herein only.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

Thereafter, in a July 2020 rating decision, the Veteran’s back condition was increased to 40 percent; neck condition increased to 30 percent; left knee increased to 20 percent; all effective June 26, 2019.  As this does not constitute a full grant, these issues remain on appeal.  AB v. Brown, 6 Vet. App. 35, 39 (1993).  He was also granted service connection for left lower extremity radiculopathy associated with the back condition at 40 percent and right lower extremity radiculopathy associated with the back condition granted at 40 percent, effective June 26, 2019; and left knee and right knee instability both granted at 10 percent, effective June 26, 2019.  As he has not appealed those decisions, they are not in front of the Board at this time. That notwithstanding, as there is evidence of instability prior to June 2019 in the bilateral knees, and the rating criteria for knee disabilities allows for certain pyramiding exceptions, to include instability, the bilateral knee instability issues are discussed below. 

The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence.  Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  Thus, the Board need not discuss any potential issues in this regard.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to active service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

VA should interpret reports of examination in light of the whole recorded history, reconciling the reports into a consistent picture so that the current rating may accurately reflect the elements of disability.  See 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  See 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating.  See 38 C.F.R. § 4.7.  In considering the severity of a disability, it is essential to trace the medical history of the Veteran. see 38 C.F.R. § § 4.1, 4.2, 4.41.  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 

Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Evidence obtained during, or leading up to, the appeal period may indicate that the degree of disability increased or decreased during the pendency of the appeal.  In such circumstances, VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the rating claim has been pending, and “staged” ratings may be assigned.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant.  See 38 U.S.C. § 5107(b).  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  See 38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert, 1 Vet. App. at 54.

The Board has reviewed all the evidence of record.  Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Board will summarize the relevant evidence, as deemed appropriate, and the Board’s analysis will focus on what the evidence shows, or fails to show, as to each claim.

1. Radiculopathy of the right upper extremity

The Veteran contends that he is entitled to a higher rating for his right upper extremity radiculopathy associated with cervical strain.

The Veteran’s right upper extremity radiculopathy is rated under Diagnostic Code (DC) 8613, 38 C.F.R. § 4.124a, for paralysis of all radicular groups. This diagnostic code provides ratings for both the major and the minor upper extremity. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. In this case, the record reflects that the Veteran is dominant in the right hand.  Diagnostic Code 8613 allows for a 20 percent rating for mild incomplete paralysis of both the major and minor upper extremity. Moderate incomplete paralysis warrants a 40 percent rating in the major upper extremity; severe incomplete paralysis of the median nerve is awarded a 70 percent rating for the major upper extremity; and complete paralysis of all radicular groups is assigned a 90 percent rating for the major upper extremity.  See 38 C.F.R. § 4.124a.

The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis of each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The words “mild,” “moderate,” and “severe” as used in the various DCs are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. See 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy.  See 38 C.F.R. §§ 4.123, 4.124.

Here, the Veteran is service connected for right upper extremity associated with his neck condition at 40 percent disabling, effective September 18, 2009, the date the claim for TDIU was received and he was afforded a VA examination for his neck condition as part of developing that claim. 

At the February 2010 VA examination, it was marked he had upper extremity abnormalities. Testing revealed pinprick testing was abnormal on the right fingers (and lateral left forearm, but he is already separately service connected for his left elbow condition). The examiner opined that “the most likely cause of neurological changes in the [upper extremity] is due to [degenerative disc disease] of the cervical spine.”  

However, the examiner failed to provide any diagnosis, so another examination was requested.  In the January 2012 VA examination, he reported that he continued to have neck pain, almost daily, and that the pain goes all the way down the right arm to the pinkie but rarely goes down the left arm.  He described the pain as being constant, dull in nature with periods of sharpness, with numbness and tingling in the right hand and wrist, occurring on a daily basis.  On testing, there was tenderness over the cervical spine and paraspinal muscles.  There was diminished sensation to light touch along the right medial upper arm, medial and lateral forearm, palm, and the ring and pinkie fingers; the left arm had normal sensation.  Vibratory and position sense were normal in both arms.  Muscle strength was 3/5 on the right and 5/5 on the left, with diminished pinch, grip, wrist extension, wrist flexion, and finger abduction on the right.  Assessment was radiculopathy in the right upper extremity that was moderate in severity.  The examiner noted that the Veteran is right-handed.

The Veteran’s 40 percent evaluation was based on the 2012 examination findings. 

The Veteran underwent a VA examination of the cervical spine in January 2017. Muscle strength testing in the bilateral elbows and fingers was 4 out of 5, and the right wrists were 3 out of 5. Reflex examination showed hypoactive reflexes bilaterally, and the sensory examination showed decreased sensation in the right hand and fingers. Regarding radiculopathies, the examiner found moderate paresthesias and mild numbness of the right upper extremity.  He marked that the C8/T1 nerve roots were involved on the right, and the severity was moderate. 

Following the 2018 Board remand, the Veteran underwent a VA examination in June 2019.  He was diagnosed with upper extremity radiculopathy with weakness and paresthesias of the fingers. Regarding radiculopathy symptoms, the Veteran was noted to have severe constant and intermittent pain and numbness, and moderate mild paresthesias of the right upper extremity. Muscle strength testing in the bilateral elbows, wrists, and fingers was 4 out of 5. Reflex examination showed hypoactive reflexes in the right biceps and triceps, and the sensory examination showed decreased sensation in the right hand and fingers.  The examiner marked that the Veteran had incomplete paralysis of the median nerves on the right, and the severity was noted to be severe in nature. 

Upon review of the evidence, the Board finds that prior to June 26, 2019, the evidence showed moderate incomplete paralysis of all radicular groups of the upper right extremity.  Specifically, the 2010 and 2012 VA examiners noted weakness of the hand and forearm, decreased sensation, and moderate pain, paresthesias, and numbness. Therefore, as noted in the 2013 rating decision, the rating of 40 percent under DC 8613 is appropriate. As the evidence does not show severe symptoms, a higher rating is not warranted. 

Since June 26, 2019, the Board finds that a higher 70 percent rating is warranted. The evidence showed severe constant and intermittent pain and numbness, decreased muscle movement upon strength testing, decreased sensation under sensory testing, and severe pain. The totality of these symptoms shows a severe incomplete paralysis of all radicular nerve groups. A higher rating is not warranted as the Veteran did not have complete paralysis.

The Board has also considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted.  

As such, the current ratings consider his functional loss, along with the severity of his pain, and the preponderance of the evidence is against ratings in excess of those assigned herein.  Therefore, an evaluation in excess of 40 percent between September 18, 2009 to June 25, 2019 is denied; but a rating of 70 percent since June 26, 2019 is granted. 

2. Right Knee Disability 

The Veteran is seeking higher disability ratings for his service-connected right knee.  The Veteran’s claim arises from a procedural history with various diagnostic codes, rating periods, and ratings assigned.  As a matter of clarification, the Board will briefly summarize this history.

The Veteran was granted service connection and a 10 percent rating for right knee chondromalacia under DC 5260 effective November 1, 2001, with a 20 percent rating under DC 5258 since April 23, 2010.  He is also in receipt of a separate 10 percent evaluation for instability of the right knee under DC 5257 since June 26, 2019 (see below discussion on instability).  

The pertinent regulations for rating a knee condition were provided to the Veteran in the Statement of the Case and will not be repeated.

Upon review of the evidence of record, the Board finds the following:

•	Prior to April 23, 2010, the Veteran’s right knee condition was not more than 10 percent disabling due to painful limitation of motion;

•	On April 23, 2010, the medical evidence showed the Veteran’s right knee condition manifested with symptoms of a cartilage condition with locking, pain, and effusion in the joint; from April 23, 2010, the Veteran’s right knee condition was not more than 20 percent disabling; 

•	From June 26, 2019 to present, the Veteran’s right knee condition warrants a separate 20 percent disability rating for limited extension; and

•	Since May 22, 2009, the Veteran has had slight instability of the right knee.

The reasons for each of these determinations is discussed below.

Prior to April 23, 2010

As noted above, prior to April 2010, the Veteran’s right knee condition was not more than 10 percent disabling due to painful limitation of motion.  The probative evidence includes VA examination reports from June 2009 and February 2010.  The Veteran’s VA treatment records were also considered.

Considering the pertinent evidence in light of the governing legal authority, the Board finds the preponderance of the evidence is against the assignment of a higher rating for the right knee condition prior to April 2010.  The condition was rated under Diagnostic Code 5260 for limited flexion.

As to limited extension, a separate rating requires evidence of extension limited to at least 10 degrees. This has not been shown by the record.  38 C.F.R. § 4.71a, DC 5261.

First, in the June 2009 VA examination, he reported pain and stiffness, and flareups were noted as moderate every 2-3 weeks for 1-2 days. There were no incapacitating episodes due to arthritis, and his gait was noted as antalgic but no evidence of abnormality with weight bearing.  His right knee flexion was limited to 90 degrees with normal extension, and he had no ankylosis. 

In the February 2010 VA examination, it was noted he had an antalgic gait with use of a cane and knee braces. He attributed his unsteadiness to his knees and that his knees were weak.  He had constant pain, stiffness, and decreased speed of the joint motion but no incoordination or deformity.  The range of motion showed that flexion was limited to 102 degrees, with no further limitation after repetitive motion testing.  Extension was normal at 0 degrees.  April 2009 X-rays were considered, and it was noted that joint space was maintained, and his right knee was normal.  Finally, he reported he had problems with squatting, kneeling, crawling, and climbing. 

His VA treatment records also do not show symptoms warranting a rating higher than 10 percent for the period prior to April 2010.  For example, in April 2009, he had a referral for a cane and in May 2009, he was referred to physical therapy for knee support after reporting ongoing right knee pain rated as 7/10 with tenderness to palpation.  He was issued knee braces. In January 2010 it was noted he had a stiff gait with normal station and no swelling with normal joint motion with some crepitus.  In April 2010, he had crepitus with full range of motion.

While the Veteran clearly experienced pain and functional loss, the Board cannot find that it approximated the level of severity as described by the next higher rating with flexion limited to 45 degrees and/or extension limited to 10 degrees. On each of the VA examinations, repetitive motion did not cause any additional loss of motion. While he has reported severe pain at times, the additional loss of motion caused during these episodes has not been quantified.  The Board thus finds that pain and functional loss has already been considered in awarding the current rating. The 10 percent rating contemplated some limitations in flexion, that were not otherwise compensable, painful motion, and some functional impairment due to that pain.

As such, the Veteran’s right knee condition based on painful motion was properly rated 10 percent disabling prior to April 2010 under DC 5260.

The Board has also considered all other diagnostic codes pertaining to the knee. As ankylosis was not shown on any examination, DC 5256 is not applicable. DC 5261 is not applicable as extension was within normal limits at the June 2009 and February 2010 examinations, even after repetitive motion and considering pain.  Because the file contains no indication of a meniscal condition in the right knee prior to April 2010, malunion or nonunion of the tibia or fibula, or genu recurvatum, DCs 5258, 5259, 5262 and 5263, respectively, are not applicable.

For all the foregoing reasons, the Board finds that the preponderance of the evidence is against a higher rating for the Veteran’s right knee condition prior to April 2010 based on painful, limited motion.  The preponderance of the evidence is also against the assignment of any further separate ratings for the right knee disability other than that assigned herein and below.  As such, an evaluation in excess of 10 percent for right knee chondromalacia prior to April 2010 is denied.

April 2010 to June 2019 

On April 23, 2010, the Veteran’s VA medical treatment reports showed he was seen for complaints of right knee pain, with occasional locking and catching.  He stated that walking, kneeling, and squatting aggravated the pain, and lying down improved the pain, and that he experienced these symptoms on a daily basis.  Upon examination, there was minimal instability, minimal crepitus, active range of motion was full, and neurovascular was intact.  There was no deformity, discoloration, edema, effusion, or atrophy noted.  He was referred for an MRI.  In July 2010, it was revealed that the MRI results requested by the April 23, 2010 doctor found that he had a tear in the posterior horn of the medial meniscus in his right knee with small joint effusion, and he was diagnosed with small medial meniscus tear post horn right knee.  He continued to complain of right knee pain, with some instability and giving out of the knee, and he was provided a knee brace and injections.

Based on this review, in the August 2013 rating decision, the evaluation of chondromalacia, right knee, was increased to 20 percent disabling under Diagnostic Code 5258, effective April 23, 2010, the earliest date the evidence shows factually ascertainable worsening of the disability, with the disability meeting the criteria for that evaluation, including consideration for functional loss.  An evaluation of 20 percent is granted whenever the semilunar cartilage is dislocated with frequent episodes of "locking," pain, and effusion into the joint.  

A higher evaluation is not warranted unless the evidence demonstrates more restricted ranges of motion and/or additional disability, such as leg flexion limited to 45 degrees and/or extension limited to 10 degrees.  As discussed in more detail below, the Veteran is being granted a separate 10 percent rating for his knee instability effective May 22, 2009, and beginning June 2019, a separate 20 percent rating for limited extension to 15 degrees (see below).  As such, for the period on appeal between April 23, 2010 and June 25, 2019, a rating in excess of 20 percent for the right knee chondromalacia is not warranted. That rating is based on additional complaints such as locking and the MRI evidence of a meniscal tear.

Since June 2019

As noted above, the Veteran is in receipt of a 20 percent evaluation based on his meniscal tear.  However, beginning June 26, 2019, the medical evidence indicates that a separate 20 percent evaluation based on limited extension is also warranted.  The next higher rating of 30 percent requires evidence of extension limited to 20 degrees. This has not been shown by the record.  

Specifically, in the June 2019 VA examination, the Veteran was diagnosed with internal derangement, knee instability, medial meniscus of the right knee, chondromalacia in both, abnormality of gait, and knee weakness and stiffness and pain bilaterally.  He reported aching, throbbing, burning, dull, grinding, popping, sharp and sore pain.  He stated he was unable to walk more than 1-2 feet or stand more than 5 minutes, and he could not drive/sit in a car for more than 15 minutes without needing to change positions.  He also reported not being able to squat or kneel and avoiding climbing stairs.  His flexion was limited to 90 degrees and extension was limited to 15 degrees with pain on weight bearing and evidence of tenderness and pain on palpation.  The examiner noted that he had a reduction in muscle strength as active against gravity; but he did not have muscle atrophy or ankylosis.   It was also noted he had crepitus, a right meniscal tear with joint pain, and joint effusion, and that activities of daily living resulted in pain, instability and weakness with frequent episodes of spontaneous giving away (see below).  Finally, it was noted he uses a wheelchair, knee braces, and a cane. 

The Veteran’s VA medical treatment records also indicated that he consistently reported chronic right knee pain and that he needs to wear a knee brace and use a cane as well as a wheelchair.  However, his medical records since June 2019 do not reveal any further complaints or testing, but rather only show ongoing chronic knee pain listed on his medical problems list. 

The currently assigned 20 percent rating under Diagnostic Code 5258 remains warranted based on these findings.  However, the Board also considered the possibility of separate ratings under DC 5260 or DC 5261.  In Lyles v. Shulkin, 29 Vet. App. 107 (2017) the Court held that the evaluation of a knee disability under Diagnostic Codes 5257 or 5261 or both did not, as a matter of law, preclude a separate evaluation of a meniscal disability of the same knee pursuant to DC 5258 or 5259. The Court explained that entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC.  The Court held that where a certain manifestation of a disability has not been compensated via an assigned evaluation under a particular DC, evaluation of that manifestation under another DC would not constitute pyramiding.

The evidence shows that the Veteran has consistently reported right knee swelling, locking, and giving away.  The medical evidence shows that the Veteran has had a meniscus tear and that he exhibited frequent episodes of joint locking and joint pain with effusion.  The 2019 examination further showed limited extension in the right knee to 15 degrees, which is ratable under DC 5261.  Therefore, in addition to the 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint under DC 5258, a separate 10 percent rating under DC 5261 for limited extension to 15 degrees is also warranted. 

With regard to granting a separate rating under DC 5261, when the Veteran is already receiving a rating under DC 5258, VA must avoid pyramiding, i.e., evaluating the same disability under different diagnostic codes or evaluating the same manifestation under different diagnostic codes.  See 38 C.F.R. § 4.14.  The Board finds that under the facts of this case, the symptoms from the Veteran’s meniscus tear, including pain, locking, and effusion, are sufficiently distinct from those causing painful limitation of extension to warrant a separate rating.  

The Board has considered whether separate or higher ratings would be warranted.   As ankylosis was not shown on any examination, DC 5256 is not applicable. DC 5260 is not applicable for a compensable rating as flexion was limited to 90 degrees at the June 2019 VA examination, even in considering pain and functional loss.  Because the file contains no indication of malunion or nonunion of the tibia or fibula, or genu recurvatum, DCs 5262, and 5263, respectively, are not applicable. With respect to DC 5259, he has not had removal of semilunar cartilage. 

For all the foregoing reasons, the Board finds that the preponderance of the evidence is against a higher rating than 20 percent for the Veteran’s right knee chondromalacia based on evidence of a meniscus tear with symptoms such as locking, pain and swelling.  The preponderance of the evidence is also against the assignment of any further separate ratings for the right knee disability than that assigned herein or as discussed below.  However, a separate rating for the Veteran’s right knee condition based on limited extension is granted at 20 percent, but no higher, since June 2019 under DC 5261 based on extension of the right knee limited to 15 degrees with pain. 

3. Left Knee Disability

As to the left knee, the Veteran was granted service connection and a 10 percent rating for left knee chondromalacia under DC 5260 as of November 1, 2001.  He has a 20 percent rating under DC 5261 since June 26, 2019 for limited extension.  He is also in receipt of a separate 10 percent evaluation for instability of the left knee under DC 5257 since June 26, 2019 (see below discussion on instability). Upon review of the evidence of record, the Board finds the following:

•	Prior to June 26, 2019, the Veteran’s left knee condition was not more than 10 percent disabling due to painful limitation of motion;

•	From June 26, 2019 to present, the Veteran’s left knee condition warrants a 20 percent disability rating for limited extension; and

•	Since May 22, 2009, the Veteran has had slight instability of the left knee.

The reasons for each of these determinations is discussed below.

Prior to June 2019 

As noted above, prior to June 2019, the Veteran’s left knee condition was not more than 10 percent disabling due to painful motion.  The probative evidence includes VA examination reports from June 2009 and February 2010.  The Veteran’s VA treatment records were also considered.

Considering the pertinent evidence in light of the governing legal authority, the Board finds the preponderance of the evidence is against the assignment of higher ratings for the left knee condition based on painful motion.  The condition was rated under Diagnostic Code 5260 for limited flexion.

As to limited extension, a separate rating requires evidence of extension limited to at least 10 degrees. This has not been shown by the record.  38 C.F.R. § 4.71a, DC 5261.

First, in the June 2009 VA examination, he reported pain and stiffness, and flareups were noted as moderate every 2-3 weeks for 1-2 days. There were no incapacitating episodes due to arthritis, and his gait was noted as antalgic but no evidence of abnormality with weight bearing.  His left knee flexion was limited to 90 degrees with normal extension, and he had no ankylosis. 

In the March 2010 VA examination, it was noted he had an antalgic gait with use of a cane and knee braces. He attributed his unsteadiness to his knees and that his knees were weak.  He had constant pain, stiffness, and decreased speed of the joint motion but no incoordination or deformity.  The range of motion showed that flexion was limited to 120 degrees, and further limited to 102 degrees after repetitive motion testing. Extension was normal. January 2010 X-rays were considered, and it was noted that joint space was maintained, and his left knee was normal.  Finally, he reported he had problems with squatting, kneeling, crawling, and climbing. 

His VA treatment records also do not indicate a rating higher than 10 percent for the period prior to June 2019 was warranted.  For example, in April 2010, he had minimal instability and crepitus with full range of motion. In June 2010, he reported constant dull non-radiating achy pain in his knees.  In July 2010 he reported bilateral knee pain with tenderness behind the left knee and instability and giving out of the right knee.  In August 2011, he reported his knees were weak and unstable. His gait was noted to be antalgic with a limp greater on the right and that he used a cane. In October 2011 it was noted that he had OA/DJD of the right knee with complaints of instability and medial compartment pain. He was issued a knee brace for the right knee and that he already has a left knee brace.  In December 2016, he reported knee pain and was told to continue to wear his knee braces.  In March 2017, he reported ongoing knee pain, and that he uses a cane and wears bilateral knee braces. 

While the Veteran clearly experienced pain and functional loss, the Board cannot find that it approximated the level of severity as described by the next higher rating with flexion limited to 45 degrees and/or extension limited to 10 degrees. On each of the VA examinations, repetitive motion did not cause any additional loss of motion. While he has reported severe pain at times, the additional loss of motion caused during these episodes has not been quantified.  The Board thus finds that pain and functional loss has already been considered in awarding the current rating. The 10 percent rating contemplated some limitations in flexion, that were not otherwise compensable, painful motion, and some functional impairment due to that pain.

As such, the Veteran’s left knee condition based on painful motion was properly rated 10 percent disabling prior to June 2019 under DC 5260.

The Board has also considered all other diagnostic codes pertaining to the knee. As ankylosis was not shown on any examination, DC 5256 is not applicable. DC 5261 is not applicable as extension was within normal limits at the June 2009 and February 2010 examinations, even after repetitive motion and considering pain.  Because the file contains no indication of a meniscal condition in the left knee, malunion or nonunion of the tibia or fibula, or genu recurvatum, DCs 5258, 5259, 5262 and 5263, respectively, are not applicable.

For all the foregoing reasons, the Board finds that the preponderance of the evidence is against a higher rating for the Veteran’s left knee condition prior to June 2019 based on painful limitation of motion.  The preponderance of the evidence is also against the assignment of any further separate ratings for the left knee disability than that assigned herein and below.  As such, an evaluation in excess of 10 percent prior to June 2019 is denied.

Since June 2019

Beginning June 26, 2019, the Veteran is in receipt of a 20 percent evaluation based on limited extension.  The next higher rating of 30 percent requires evidence of extension limited to 20 degrees. This has not been shown by the record.  

Specifically, in the June 2019 VA examination, the Veteran was diagnosed with internal derangement, knee instability, chondromalacia in both knees, abnormality of gait, and knee weakness and stiffness and pain bilaterally.  He reported aching, throbbing, burning, dull, grinding, popping, sharp and sore pain.  He stated he was unable to walk more than 1-2 feet or stand more than 5 minutes, and he could not drive/sit in a car for more than 15 minutes without needing to change positions.  He also reported not being able to squat or kneel and avoiding climbing stairs.  His flexion was limited to 90 degrees and extension was limited to 13 degrees with pain on weight bearing and evidence of tenderness and pain on palpation.  The examiner noted that he had a reduction in muscle strength as active against gravity; but he did not have muscle atrophy or ankylosis.   It was also noted he had crepitus, joint pain, and joint effusion, and that activities of daily living resulted in pain, instability and weakness with frequent episodes of spontaneous giving away (see below).  Finally, it was noted he uses a wheelchair, knee braces, and a cane. 

The Veteran’s VA medical treatment records also show that he consistently reported chronic knee pain and that he needs to wear a brace and use a cane.  However, his medical records since June 2019 do not reveal any further complaints or testing, but rather only show ongoing chronic knee pain listed on his medical problems list. 

While the Veteran clearly experiences pain and functional loss, the Board cannot find that it approximates the level of severity as described by the next higher rating.  His extension has been limited to 13 degrees, at worst. On VA examination, repetitive motion did not cause any additional loss of motion, though the pain on testing was considered in granting him the 20 percent for limitation approximating 15 degrees. While he has reported severe pain at times, the additional loss of motion caused during these episodes was considered to grant the higher rating.  The Board thus finds that pain and functional loss has already been considered in awarding the current rating.

The Board has considered whether separate or higher ratings would be warranted.   As ankylosis was not shown on any examination, DC 5256 is not applicable. DC 5260 is not applicable for a compensable rating as flexion was limited to 90 degrees at the June 2019 VA examination, even in considering pain and functional loss.  Because the file contains no indication of a meniscal condition in the left knee, malunion or nonunion of the tibia or fibula, or genu recurvatum, DCs 5258, 5259, 5262, and 5263, respectively, are not applicable.

For all the foregoing reasons, the Board finds that the preponderance of the evidence is against a higher rating for the Veteran’s left knee disability based on limited extension.  The preponderance of the evidence is also against the assignment of any further separate ratings for the left knee disability than that assigned herein or as discussed below.  As such, an evaluation in excess of 20 percent for the left knee chondromalacia since June 2019 is denied. 

4. Right knee and Left Knee Instability

As to the bilateral knee instability, the Veteran is currently assigned a 10 percent disability rating for each knee effective June 2019.  Under DC 5257, a separate rating is warranted for a showing of recurrent subluxation or lateral instability; the code states that slight recurrent subluxation or lateral instability, is rated as 10 percent disabling.  Moderate recurrent subluxation or lateral instability warrants a 20 percent rating, and severe recurrent subluxation or lateral instability warrants a 30 percent rating.  See 38 C.F.R. § 4.71a, DC 5257.

Here, the Board notes that the evidence indicates that there was instability in both the left knee and right knee for the entire period on appeal.  However, at no time during the appellate time period has the Veteran’s bilateral knee instability resulted in greater than slight impairment. The Board reaches this conclusion based on the objective testing results of record.  The Board has considered the Veteran’s lay reports of falls due to the knees giving out and that he has regularly worn knee braces and finds that the ratings being granted herein contemplate such symptoms.  As such, a 10 percent rating, but no higher, for the right knee and 10 percent rating, but no higher, for the left knee effective May 22, 2009 is warranted.

Specifically, in the June 2009 VA examination, the Veteran reported giving away in both knees with instability and pain and stiffness.  The examiner marked “yes” to instability and giving away, but “no” to subluxation or locking. 

Next, in the February 2010 VA examination, it was noted that the Veteran uses knee braces on both knees and uses a cane, and it was noted that he has had a few falls.  He attributes unsteadiness to his knee conditions and that both knees are weak. He also reported that he has a history of falls and unsteadiness and that he has fallen a few times.  The examiner also marked “yes” to giving away for the knees with pain, stiffness, and weakness.  However, the examiner marked “no” to instability or subluxation. 

That notwithstanding, the Board acknowledges that the Veteran is competent to report knee instability as this is within the realm of his personal perception.  Layno v. Brown, 6 Vet. App. 465, 469; see also English v. Wilkie, 30 Vet. App. 347 (2018) (suggesting that lay evidence of knee instability is generally competent).  The Board is cognizant that objective medical evidence is not categorically more probative than lay evidence when it comes to determining the degree of knee instability the Veteran has experienced during the appellate period.  English, supra.  

Further, the Veteran’s VA medical records also revealed reports of instability, giving away, and falls.  In May 2009 he was referred for physical therapy for knee support and reported ongoing knee pain rated as 7/10 pain with tenderness to palpation and mild laxity noted.  He was then issued a knee brace.  In April 2010, he had minimal instability and crepitus with full range of motion.  In July 2010 he reported bilateral knee pain with tenderness behind the left knee and instability and giving out of the right knee.  In August 2011, he reported his knees were weak and unstable. His gait was noted to be antalgic with a limp greater on the right and that he uses a cane. The goal noted was to reduce the left knee pain and increase the stability.  In October 2011 it was noted that he had complaints of instability and medial compartment pain. He was issued a knee brace for the right knee – it was noted that he already had a left knee brace – which was issued to promote stability.  In August 2012, he reported to the emergency room after a fall and he bumped into a wood table.  In January 2014 he reported he had been falling recently due to his knees and back. He stated that his knees give out if he is not wearing his braces and he will lose his balance and fall to the floor/ground.  In July 2014, a fall risk was added to his chart.  In December 2016, he reported knee pain and was told to continue to wear his knee braces.  In March 2017, he reported ongoing knee pain, and that he uses a cane and wears bilateral knee braces. 

As discussed above, the Board as considered that the Veteran’s VA medical records show he has instability and that he wears knee braces and uses a cane at all times.  His VA medical records showed he was rated as having a risk for falls; VA doctors all noted his constant use of wearing braces and need for a cane in order to ambulate and balance; he reported falling on several occasions, including the August 2012 and the January 2014 falls which caused laceration to his face, and he then needed physical therapy and intermittent use of a wheelchair.  

However, any assertion that more severe right knee and left knee instability than as currently rated are contradicted by the medical evidence.  This is not an instance where the Board is negating the probative value of the Veteran’s lay statements simply because they are unaccompanied by supporting contemporaneous medical evidence, which would be in contravention of Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  To the contrary; the medical evidence of record, to include all VA examinations, are inconsistent with and contradict the severity of the Veteran’s knee instability as presented in his lay statements issued during the course of these proceedings. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (finding the Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence).  DC 5257 expressly refers to lateral instability, a specific type of joint instability demonstrated by clinical test for ligament laxity, such as Lachman’s and drawer tests.  As discussed above, the 2009, 2010, and 2017 examiners marked “no” to history of instability or recurrent subluxation after the Veteran underwent instability and laxity testing.  Although the Veteran is competent to report his symptoms, the qualified medical evidence indicates that three different VA examinations (2009, 2010, and 2017) indicated that after testing, the Veteran’s test results did not reveal a showing of instability or subluxation of the bilateral knees.  Accordingly, these statements are afforded less evidentiary weight in this determination.  

As such, the Board ultimately finds that the preponderance of the evidence of record, lay or medical, simply does not demonstrate that his service-connected right knee and left knee disabilities manifested with recurrent subluxation or lateral instability that is at least moderate in severity during this period of time.  The Board notes that the benefit of the doubt has been applied, where applicable, and acknowledges that the Veteran believes his bilateral knee instability to be of greater severity.  However, the Board finds that his statements are most supportive of a 10 percent rating.  The Veteran primarily has described his symptoms as feeling unstable and needing to wear a brace at all times, that he has the potential for falls, and that he has fallen on several occasions.  Such symptomatology is consistent with 10 percent evaluations for both knees, and some of his reported symptoms were considered as part of the separate 20 percent evaluations discussed above. 

In sum, the evidence indicates that a separate rating of 10 percent, but no higher, for right knee instability and a separate rating of 10 percent, but no higher, for left knee instability for the entire period on appeal is warranted.  Gilbert, 1 Vet. App. 49, 55.

5. Neck Condition 

By way of history, the Veteran filed a claim for TDIU based on his service-connected disabilities, including the neck condition, in September 2009, and was afforded VA examinations as part of that claim.  In the March 2010 rating decision, his evaluation was increased from 10 percent disabling to 20 percent, effective September 18, 2009.  Following the Board remand, as noted above, in a July 2020 rating decision, the neck was evaluated at 30 percent disabling, effective June 26, 2019.  The Veteran requests higher evaluations for the entire period on appeal.  The Veteran asserts, generally, that his neck disorder is worse than has been evaluated.  

The Veteran’s service-connected neck condition is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, under DC 5010-5243, for degenerative arthritis and IVDS.  The pertinent regulations for rating a neck condition were provided to the Veteran in the Statement of the Case and will not be repeated.

Upon review of the evidence of record, the Board finds the following:

•	Between September 18, 2009 and June 25, 2019, the Veteran’s neck condition was not more than 20 percent disabling; and

•	From June 26, 2019 to present, the Veteran’s neck condition warranted a 30 percent disability rating. 

The reasons for each of these determinations is discussed below.

Prior to June 2019

From September 18, 2009 to June 25, 2019, the Veteran's cervical spine disability is rated 20 percent.  After a review of the evidence, the Board finds that at no point during this period was the Veteran’s forward flexion of the cervical spine shown to have been limited to 15 degrees or less, and favorable ankylosis of the entire cervical spine was also not shown.  Significantly, flare-ups when there is greater impairment were considered.  The Veteran's own reports of manifestations do not show the neck disability resulted in any impairment warranting a rating in excess of 20 percent until he was afforded an examination in June 2019. Accordingly, a rating in excess of 20 percent for the neck disability between September 18, 2009 and June 26, 2019 is not warranted.

Specifically, in the February 2010 VA examination, his neck pain was described as dull and aching, the severity mild to severe, and the durations being hours to days, 3-4 times a week. The pain limited his mobility and range of motion and he stated the pain was alleviated with medications and lying flat. It was noted that there were no incapacitating episodes though he did use a cane and wore a brace (but for the knees not for the back/neck). It was marked "no" to spasms in the neck during the examination. There was no ankylosis; no atrophy; no guarding; and no weakness, but there was pain and tenderness noted. The examiner indicated any abnormal gait was due to the knees, not the spine conditions.  Upon testing, it was revealed his range of motion was forward flexion limited to 20 degrees; extension to 18 degrees; left lateral flexion to 14 degrees; left rotation to 30 degrees; right flexion to 16 degrees; and right rotation to 40 degrees. His range of motion in flexion was further limited to 16 degrees after repetitive motion testing.

Based on the findings in this examination, the Veteran was granted an increased rating of 20 percent, effective September 18, 2009.  

In the January 2012 VA examination, he reported that he continued to have neck pain, almost daily, and described the pain as being constant, dull in nature with periods of sharpness, with numbness and tingling in the right hand and wrist, occurring on a daily basis.  On testing, there was tenderness over the cervical spine and paraspinal muscles.  

In the January 2017 VA examination, he reported his neck ached and he has trouble looking over his shoulders.  The range of motion testing revealed his forward flexion was limited to 25 degrees.  It was noted he does not have guarding or muscle spasms of the cervical spine, and no ankylosis or muscle atrophy. 

Although the Veteran reported that the 2017 examiner was rude and pushed his neck and knees further beyond pain during testing, the Veteran was afforded the June 2019 examination for an accurate examination (see below); further, while the Board considered the Veteran’s statements, the preponderance of the evidence is against finding a higher rating was warranted prior to June 2019.  For example, the VA medical records also do not indicate a higher, 30 percent rating was warranted prior to June 2019.  In October 2009 he reported chronic back pain with increased cervical pain rated as 4-5/10.  In November 2009 he reported decreased scapular pain with pain rated 4/10.  In December 2009 he reported decreased pain and pain was intermittent in nature with the pain rated a 3/10.  In February 2010, he reported shoulder pain and crepitus at the base of the neck and his neck range of motion was noted to be limited.  In May 2010 he reported shoulder pain/crepitus at the base of the neck that had gradually worsened for one week.  In March 2011, it was noted his neck had full range of motion.  He continued to report chronic pain and receive treatment.  In November 2017 he reported a history of chronic neck pain and spasm and requested a neck collar to be prescribed so he could use it at home.  His range of motion of the neck was limited secondary to pain, but the examiner noted that otherwise motor evaluation of the cervical spine was intact, 5/5, and his sensation was also intact.

The Board has considered whether an evaluation in excess of 20 percent for the neck condition was warranted for any period between September 2009 and June 2019.  However, the Board finds there was no medical evidence reflecting the Veteran’s neck condition manifested with forward flexion of 15 degrees or less, or unfavorable or favorable ankylosis of the cervical spine.  With respect to the possibility of assigning a higher rating under 38 C.F.R. §§ 4.40, 4.45, there is no indication in the medical evidence of record that any subjective complaints, such as pain, fatigue, incoordination, or weakness, resulted in additional limitation of function, and the Veteran’s evaluation was already increased to 20 percent based on his subjective reports of pain, stiffness, and functional loss.  There is no indication in the claims file that any subjective factors resulted in ankylosis of any kind or forward flexion of 15 degrees or less, as needed for an increased rating under the General Formula.  As such, an evaluation in excess of 20 percent is not warranted during this period on appeal.  

Further, in order to receive a rating for IVDS Based on Incapacitating Episodes, the neck disability would have to result in incapacitating episodes having a duration of at least 4 but less than 6 weeks during a 12-month period.  However, there is simply no evidence documenting physician-prescribed bedrest.  Specifically, as part of the 2016 and 2018 Board remand directives, an addendum opinion was requested to consolidate the finding in the 2009 VA examination report and the 2010 examination report regarding whether the Veteran had IVDS that required bed rest.  The 2009 examination report marked he had incapacitation of 60 days, which would warrant a higher rating under DC 5243.  In the June 2019 examination, the examiner considered the 2009 report, as well as the entire medical record, and opined that “while the Veteran has had reoccurring severe incapacitating flare-up episodes from his multiple disabilities…but no physician has needed to prescribe the mandatory medical necessity of bed rest at any point during the appeal period.”  The examiner also explicitly pointed out that he directly questioned the Veteran, and that the Veteran himself “denied ever [being] required mandatory bedrest prescribed as a treatment by a physician [rather], this bedrest was self-directed and voluntary.” As such, while he may voluntarily restrict his physical activities or rest in bed during periods of increased symptoms, VA’s rating schedule defines an incapacitating episode as prescribed bed rest from a physician.  However, with no medical evidence of record documenting physician-prescribed bedrest, an evaluation is not warranted for IVDS Based on Incapacitating Episodes.

In summary, as the preponderance of the evidence is against the claim for a rating in excess of 20 percent, between September 18, 2009 through June 25, 2019, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 

Since June 26, 2019

In a February 2017 correspondence, the Veteran argued as to the validity of the examination in January 2017, stating the examiner was argumentative and coerced him to answer questions that were false. Specifically, he stated the examiner moved his neck beyond where he experienced pain. He also stated he reported experiencing pain every day in the neck, but the examiner marked he only had pain 2-3 days/week.

Therefore, following the 2018 Board remand, the Veteran was scheduled for an updated examination based on his assertions of worsening.  In the June 2019 VA examination, the Veteran was diagnosed with IVDS and neck strain, with stiffness of the neck with decreased/limitation of motion.  He reported continuing to experience progressive increasing pain and loss of function of the cervical spine with associated right radicular upper extremity pain and associated referred occipital pain.  Upon testing, his forward flexion was limited to 10 degrees and 67 combined degrees with pain noted on all motions. There was objective evidence of pain on palpation and tenderness, as well as evidence of pain on weight bearing. There no was additional loss after repetitive testing and he had guarding and muscle spasms but not resulting in abnormal gait or spinal contour.  Weakened movement, fatigability, incoordination, and pain on movement after repetitive testing and during flareups were indicated by the examiner, but no additional loss of limitation. He also had limited muscle strength but no muscle atrophy or ankylosis of the spine.  While he does have IVDS, he did not have any episodes of acute symptoms that required best rest prescribed by a physician.  

As noted above, the June 2019 examiner opined that “while the Veteran has had reoccurring severe incapacitating flare-up episodes from his multiple disabilities…no physician has needed to prescribe the mandatory medical necessity of bed rest at any point during the appeal period.”  The examiner also explicitly pointed out that he directly questioned the Veteran, and that the Veteran himself “denied ever [being] required mandatory bedrest prescribed as a treatment by a physician [rather], this bedrest was self-directed and voluntary.” As such, while he may voluntarily restrict his physical activities or rest in bed during periods of increased symptoms, VA’s rating schedule defines an incapacitating episode as prescribed bed rest from a physician.  However, with no medical evidence of record documenting physician-prescribed bedrest, an evaluation is not warranted for IVDS based on incapacitating episodes.

Further, the evidence of record does not demonstrate that the Veteran has unfavorable ankylosis of the entire cervical spine.  The lay statements and noted functional impairment have been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms, to include the pain and additional functional loss. However, the Veteran’s disability does not result in symptoms that more nearly approximate unfavorable ankylosis of the entire cervical spine or entire spine.

Finally, the VA medical records showed ongoing chronic neck pain and treatment, as well as wearing a neck brace, but no subjective or objective symptoms were reported that has not already been contemplated by DC 5243, and no additional range of motion testing was performed.  

In sum, the Board finds that a 40 percent rating for the cervical spine is not warranted because the Veteran does not have ankylosis of the cervical spine. Indeed, the June 2019 VA examiner specifically note that there is no ankylosis of the cervical spine. As a higher rating requires a showing of ankylosis, additional opinions and testing for range of motion would not assist in establishing entitlement to a higher rating for the cervical spine disability for the period beginning.  Therefore, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and a rating in excess of 30 percent is not warranted, and the claim is denied.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 

6. Back Condition

By way of history, the Veteran filed a claim for an increased rating for his back condition in May 2009, and, in a July 2009 rating decision, was evaluated as 10 percent disabling effective May 22, 2009.  He then filed a TDIU claim on September 18, 2009.  In a March 2010 rating decision, the evaluation was increased to 20 percent, effective September 18, 2009.  Following the Board remand, as noted above, in a July 2020 rating decision, the back was evaluated at 40 percent disabling, effective June 26, 2019.  The Veteran has disagreed with the decisions, requesting higher evaluations for the entire period on appeal.  The Veteran asserts, generally, that his back disorder is worse than has been evaluated.  As such, he argues higher evaluations are warranted.  

The Veteran’s service-connected chronic back condition is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, under DC 5242, for degenerative arthritis of the spine.  The pertinent regulations for rating a back condition were provided to the Veteran in the Statement of the Case and will not be repeated.

Upon review of the evidence of record, the Board finds the following:

•	Prior to September 18, 2009, the Veteran’s back condition was not more than 10 percent disabling;

•	The medical evidence that showed worsening of the Veteran’s back condition was from the February 2010 VA examination.  However, he had filed a TDIU claim on September 18, 2009, and from that date to June 25, 2019, the Veteran’s back condition was not more than 20 percent disabling; and

•	From June 26, 2019 to present, the Veteran’s back condition warrants a 40 percent disability rating. 

The reasons for each of these determinations is discussed below.

Prior to September 2009 

The Veteran’s back condition did not warrant a higher rating than 10 percent for the period on appeal prior to September 2009.  VA outpatient treatment records as well as other evidence within the file demonstrated ongoing treatment and complaints of a back condition.  However, there were no range of motion findings showing less than 60 degrees of flexion, nor was there evidence of spasms resulting in an abnormal gait due to the back.  Additionally, there was no evidence documenting any incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months.

For example, in the June 2009 VA examination, the Veteran reported a gradual onset of back pain with bone spurs, muscle spasms and arthritis that have all progressively worsened.  He described the pain as locking up, sharp, and stabbing with moderate severity.  The examiner marked that he had incapacitating episodes that were about 60 days in the last year (but did not mark this was physician prescribed).  The examiner marked an antalgic gait, but no kyphosis, lumbar flattening, lumbar lordosis, reverse lordosis, scoliosis, or thoracolumbar spine ankylosis.  He also noted the Veteran’s muscle spasms or guarding were not severe enough to be responsible for the abnormal gait or spinal contour.  His range of motion testing revealed forward flexion limited to 80 degrees (combined total was 180) with no objective pain following repetitive motion testing and no additional functional loss. 

The Veteran’s VA medical treatment records prior to September 2009 also do not indicate a higher rating than 10 percent is warranted.  In April 2009, he was issued a cane; in May 2009 he reported he had no change in his symptoms, and in June 2009, he had palpable muscle spasms in the upper back, and rated the pain to be 7/10. 

As such, the Board finds the assigned 10 percent evaluation was appropriate for the Veteran’s thoracolumbar spine prior to September 18, 2009, as the treatment records showed chronic residual back pain with degenerative disc disease with forward flexion limited to 80 degrees at worst.  Therefore, based on the preponderance of the evidence, a 10 percent evaluation, but no higher, prior to September 18, 2009 is continued and the claim for a higher evaluation is denied. 

September 2009 to June 2019

Thereafter, a March 2010 rating decision increased the Veteran’s back condition to a 20 percent evaluation.  This was based on a February 2010 VA examination after the Veteran filed a claim for TDIU on September 18, 2009 based, in part, on the back condition, and he was afforded an examination to evaluate that claim. 

The 2010 examination revealed worsening symptoms, such as back pain that was described as dull and aching, the severity mild to severe, and the duration being hours to days, 3-4 times a week.  He stated the pain limited his mobility and range of motion and was alleviated with medications and lying flat. There were no incapacitating episodes though he did use a cane.  It was noted his back may lock up due to muscle spasms – but the examiner then marked “no” to spasms in the neck or back during the examination. There was no lumbar lordosis or ankylosis; no atrophy; no guarding; and no weakness, but there was pain and tenderness noted. The physical examination also revealed a normal posture with an abnormal gait, and kyphosis and lumbar flattening was noted. Pain and tenderness on both sides of the thoraco-lumbar spine were also noted.  Further, upon testing, his back range of motion was forward flexion limited to 60 degrees with objective evidence of pain following repetitive motion noted, but there were no additional limitations of motion following repetitive motion testing.  The effects of this condition on the activities of daily living were noted to range from mild to severe. 

Based on this examination the Veteran was awarded a 20 percent evaluation due to forward flexion of the thoracolumbar spine being not greater than 60 degrees.

In a January 2017 examination, it was noted that the Veteran’s forward flexion was limited to 45 degrees, with no muscle atrophy, ankylosis, or radiculopathy of the lumbar spine.  He reported that after repetitive use, he has to stay in his bed or recliner.  

The VA medical treatment records prior to June 2019 also do not indicate a rating higher than 20 percent disabling is warranted.  For example, in June 2010, the lower back pain was noted to be intermittent dull and non-radiating.  In March 2012, he reported the severity of the pain in his back was rated as an 8/10 and described it as aching and worse after activity.  In January 2014, he was diagnosed with a back sprain.  In February 2014, he reported chronic back pain; and in July 2014 he reported the pain was rated as an 8/10.  In December 2015, it was noted he had chronic back pain, but no significant changes and he had continuously refused physical therapy treatment.  In December 2016, his X-ray findings were not remarkable.  In March 2017, it was noted he had a history of chronic back pain and that he uses a cane.  In November 2017, he rated the severity of his back pain to be a 7/10.  In May 2018, he continued to report back pain, but it was noted as “stable.”

The Board has considered whether an evaluation in excess of 20 percent for the back condition is warranted for any period between September 2009 and June 2019.  However, the Board finds there was no medical evidence reflecting the Veteran’s back condition manifested with forward flexion of 30 degrees or less, or unfavorable or favorable ankylosis of the lumbar spine.  With respect to the possibility of assigning a higher rating under 38 C.F.R. §§ 4.40, 4.45, there is no indication in the medical evidence of record that any subjective complaints, such as pain, fatigue, incoordination, or weakness, resulted in additional limitation of function, and the Veteran’s evaluation was already increased to 20 percent based on his subjective reports of pain, stiffness, and functional loss.  There is no indication in the claims file that any subjective factors resulted in ankylosis of any kind or forward flexion of 30 degrees or less, as needed for an increased rating under the General Formula.  As such, an evaluation in excess of 20 percent is not warranted during this period on appeal.  

The February 2010 VA examination was the first medical evidence showing symptoms warranting a 20 percent rating.  The rating could have been assigned from the date of that examination.  Instead, since the Veteran had filed a claim for TDIU in September 2009, the RO assigned that as the effective date.  There was, however, no medical evidence between the May 2009 claim for an increase – and the effective date of the 10 percent rating – and the February 2010 VA examination showing a higher rating was warranted.  The RO assigned an effective date in his favor (see more below), rather than date of the examination. 

Further, in order to receive a rating for IVDS Based on Incapacitating Episodes, the back disability would have to result in incapacitating episodes having a duration of at least 4 but less than 6 weeks during a 12-month period.  However, there is simply no evidence documenting physician-prescribed bedrest.  Specifically, as part of the 2016 and 2018 Board remand directives, an addendum opinion was requested to consolidate the finding in the 2009 VA examination report and the 2010 examination report regarding whether the Veteran had IVDS that required bed rest.  The 2009 examination report marked he had incapacitation of 60 days, which would warrant a higher rating under DC 5243.  In the June 2019 examination, the examiner considered the 2009 report, as well as the entire medical record, and opined that “while the Veteran has had reoccurring severe incapacitating flare-up episodes from his multiple disabilities…but no physician has needed to prescribe the mandatory medical necessity of bed rest at any point during the appeal period.”  The examiner also explicitly pointed out that he directly questioned the Veteran, and that the Veteran himself “denied ever [being] required mandatory bedrest prescribed as a treatment by a physician [rather], this bedrest was self-directed and voluntary.” As such, while he may voluntarily restrict his physical activities or rest in bed during periods of increased symptoms, VA’s rating schedule defines an incapacitating episode as prescribed bed rest from a physician.  However, with no medical evidence of record documenting physician-prescribed bedrest, an evaluation is not warranted for IVDS based on incapacitating episodes.

In sum, the Board concludes the preponderance of the evidence is against assignment of a rating in excess of 20 percent from September 18, 2009 to June 25, 2019 for the service-connected back condition and the claim is denied. 

Since June 26, 2019

Following the 2018 Board remand, the Veteran was afforded an updated VA examination in June 2019, where he was then granted the current 40 percent evaluation based on the findings of the examination.

Specifically, the 2019 examination revealed diagnoses for degenerative arthritis of the spine, intervertebral disc syndrome (IVDS), thoracic degenerative joint disease (DJD) and thoracic degenerative disc disease (DDD).  He was unable to perform any of the range of motion testing due to severe back pain secondary to a flareup.  The examiner marked he had guarding and muscle spasms resulting in abnormal gait or spinal contour; his muscle strength testing was limited in hip, knee, ankle and toe extensions and flexions, but he did not have muscle atrophy or ankylosis.  He had decreased sensation in his bilateral foot/toes and straight leg testing was positive with radicular pain that was rated as severe in the bilateral lower extremities (he was granted service connection in July 2020 for these issues).  It was noted he had IVDS, but he had not been prescribed bedrest by a physician, and that he regular use of a wheelchair and brace, and constant use for a cane.  Finally, it was noted he had locking of the back that made him immobile. 

His VA medical records showed that in June 2019, he reported his biggest complaint at present is his low back and that he has a constant “sharp” pain averaging a rating of a 7-8/10 that worsens when he walks or does anything active.  He was issued a back brace.  Thereafter, he reported back pain to be rated as 9/10 and described it as aching, sharp, shooting, stabbing, tender, throbbing, tightness, and tingling pain. 

The Board finds the medical evidence supports the assignment of a 40 percent evaluation, but no higher, for his disability beginning June 2019.  Given the demonstrated complaints of and treatment for back pain, coupled with the painful motion, the immobility, and the prescribed medication, the Board finds the Veteran’s service-connected chronic back condition warrants a higher 40 percent evaluation, even though his demonstrated flexion has been greater than 30 degrees – though consideration was given due to his inability to perform any range of motion testing due to severity of pain/flareups.  See 38 C.F.R. §§ 4. 40, 4.45, 4.59; DeLuca, 8 Vet. App. 202.

However, the required manifestations for an evaluation greater than 40 percent are not present.  VA treatment records and VA examinations do not show that the Veteran’s spine has been found to be ankylosed, or that he has experienced incapacitating episodes of IVDS having a total duration of at least six weeks with prescribed bed rest from a physician at any time during the period under appeal. While he may voluntarily restrict his physical activities or rest in bed during periods of increased symptoms, VA’s rating schedule defines an incapacitating episode as prescribed bed rest from a physician.

First, the Board has carefully reviewed and considered the Veteran’s statements regarding the severity of his thoracolumbar spine disability. To that end, the Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. The Board is likewise aware of the Veteran’s contentions that his back disability impacts his work and daily activities. Moreover, the Board notes that the Veteran is competent to report observable symptoms such as pain and limitation of motion. See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, considering the Veteran’s lay statements and noted functional impairment, the Veteran’s disability does not result in symptoms that more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine or entire spine on or after June 26, 2019. 

Further, the Veteran’s evaluation was already increased to 40 percent based on his subjective reports of pain, stiffness, immobility, and functional loss, as well as his diagnosis of DJD, DDD, and IVDS.  There is no indication in the claims file that any subjective factors resulted in ankylosis of any kind, as needed for an increased rating under the General Formula.  Thus, the Board finds that the effect of the pain in the Veteran’s back is contemplated in the currently assigned 40 percent evaluation and that he does not more nearly approximate the criteria for a higher evaluation.  The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The current 40 percent rating is based on evidence showing that the Veteran’s spine disability is manifested by symptoms of functional loss and the worsening pain with activity, the frequency and length of his flare-ups, and the use of a wheelchair.

Further, as under Note (1), the General Rating Formula directs that any associated objective neurologic abnormalities including but not limited to bowel or bladder impairment are to be separately evaluated under an appropriate DC.  However, the Veteran is already receiving a separate evaluation to compensate him for his left lower radiculopathy and right lower radiculopathy as secondary to his back condition as granted in the July 2020 rating decision.  He has not appealed those issues, and they are not in front of the Board at this time. 

In summary, the medical evidence supports an evaluation of 40 percent for service-connected chronic back condition since June 26, 2019.  However, the preponderance of the evidence is against an evaluation greater than 40 percent. 

Earlier Effective Date

The effective date for an award of disability compensation based on an original claim for direct service connection, if the claim is received within one year after separation from service, shall be the day following separation from active service or the date entitlement arose; otherwise, and for reopened claims, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later.  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 

The terms “claim” and “application” mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  See 38 C.F.R. § 3.1(p).  Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA.   See 38 C.F.R. § 3.1(r).  A sympathetic reading as to all potential claims raised by the evidence is required.  Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004).

A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA.  See 38 U.S.C. § 5101(a).  Regulations defining a “claim” were revised, effective March 24, 2015.  See 79 Fed. Reg. 57,660 (Sept. 25, 2014).  The revision eliminated informal claims and required claims on specific forms.  

Prior to March 24, 2015, a claim was defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  See 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  Thus, for the period prior to March 24, 2015, any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought.  See 38 C.F.R. § 3.155(a).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

In this case, the RO assigned an effective date of May 22, 2009, for the award of the increased rating of 10 percent disabling for the back condition; this date corresponds with the date the RO received the Veteran’s initial claim seeking a higher evaluation for the back condition.

The Board has reviewed all relevant evidence and finds no basis under the law to award an effective date earlier than May 22, 2009, for the grant of the 10 percent evaluation for the back condition.  There is nothing in the record prior to that date which could be construed as a claim for a higher rating for the back condition, even under the broadest definition of a claim.  As such, the RO has already assigned the earliest possible effective date for its grant of the 10 percent rating, which was determined to be May 22, 2009.  

As for an earlier effective date for the 20 percent evaluation earlier than September 18, 2009, as discussed in great detail above, a March 2010 rating decision increased the Veteran’s back condition to a 20 percent evaluation.  This was based on a February 2010 VA examination after the Veteran filed a claim for TDIU on September 18, 2009 based, in part, on the back condition, and he was afforded an examination to evaluate that claim. The medical evidence did not show worsening of the Veteran’s back condition until the VA examination was done in February 2010.  The above discussion for the back condition provided for staged ratings of the back claim for the entire period on appeal, and considered the evidence of record for any earlier effective dates for all applicable ratings as staged throughout the appeal period, and will not be repeated here. The RO assigned an earlier effective date of September 2009 based on his TDIU claim, even though the medical evidence did not show the condition had worsened until the February 2010 VA examination.

Consequently, there is no legal basis upon which to grant an effective date prior to May 22, 2009 for the grant of a 10 percent evaluation or for an earlier effective date prior to September 18, 2009 for the grant of a 20 percent evaluation for the back condition.  The Board is bound by the law governing the assignment of effective dates in its determination in this case.  See 38 U.S.C. § 7104(c).  The claim of entitlement to an effective date earlier than May 22, 2009, for the award of a 10 percent rating and earlier than September 18, 2009 for the award of a 20 percent rating for the back condition must be denied.

REASONS FOR REMAND

Total disability is considered to exist when there is any impairment, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  See 38 C.F.R. § 3.340(a)(1).  A total disability rating for compensation purposes may be assigned based on individual unemployability: that is when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more.  See 38 C.F.R. § 4.16(a).  

In this case, with the above grant of service connection for instability in the left knee and in the right knee, both rated at 10 percent, effective May 22, 2009, the Veteran has a combined evaluation of 60 percent beginning May 22, 2009, and 80 percent beginning September 18, 2009.  Therefore, he did not meet the schedular criteria until September 18, 2009.  Although the Veteran argued that the TDIU should be granted earlier than September 2009, the Veteran’s combined evaluation of 60 percent does not meet the schedular criteria.  

However, the Board notes that while the August 2013 rating decision granted TDIU effective September 18, 2009 based on the date of receipt of the TDIU application, once the issue of a TDIU has been raised in the context of an appeal for an increased rating, it is not bifurcated by the grant of TDIU for a portion of the applicable period on appeal.  Harper v. Wilkie, 30 Vet. App. 356 (2018).  Here, the issue of TDIU became part of the underlying claims for increased ratings for the back and bilateral knee conditions that the Veteran filed in May 2009, when he specifically stated in a June 2009 statement that he was unable to work due to his service-connected disabilities.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  As such, though the August 2013 rating decision granted TDIU beginning September 18, 2009, this was not a full grant of the claim since an informal claim was part of the increased rating claims received in May 2009.  

Therefore, the appeal period extends to his May 2009 claims for increased ratings, but, as noted above, he did not meet the schedular threshold for TDIU prior to September 2009.  As such, when percentage requirements are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities.  See 38 C.F.R. § 4.16(b).  

However, the Board cannot consider entitlement to a TDIU on an extraschedular basis in the first instance.  Instead, the Board is required to refer all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), to the Director for extraschedular consideration.  See 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001).  Thereafter, the Board has jurisdiction to review the Director’s determination.  Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining that “the Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU”).  

There is sufficient evidence of record to suggest the Veteran’s service-connected conditions impaired his ability to obtain or maintain gainful employment.  See disability determination from the Social Security Administration.  Therefore, the Board is remanding this portion of the TDIU claim, so that referral for extraschedular consideration can take place.

The matters are REMANDED for the following action:

Refer the Veteran’s claim for TDIU prior to September 18, 2009, to VA’s Director of Compensation Service, or his/her designee, for extraschedular consideration. 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	G.Hoy, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.