Citation Nr: 21003911 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 12-32 528 DATE: January 25, 2021 ORDER Entitlement to a rating in excess of 10 percent from February 17, 2011 to May 20, 2013, and in excess of 20 percent from May 20, 2013, for a service-connected thoracolumbar spine disability is denied. Entitlement to a rating in excess of 10 percent for limited range of motion due to a service-connected left knee disability is denied. Entitlement to a rating in excess of 10 percent for limited range of motion due to a service-connected right knee disability is denied. Entitlement to a rating of 10 percent, but not more, for slight instability of the left knee is granted. Entitlement to a rating of 10 percent, but not more, for slight instability of the right knee is granted. REMANDED Entitlement to a rating in excess of 20 percent for service-connected right lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. From February 17, 2011 to May 20, 2013, the Veteran’s thoracolumbar spine disability did not manifest as forward flexion less than 60 degrees; a combined range of motion less than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. From May 20, 2013, the Veteran’s thoracolumbar spine disability did not manifest as forward flexion of 30 degrees or less. 3. For the duration of the period on appeal, the Veteran’s left knee disability manifested as non-compensable limited range of motion on flexion accompanied by objective evidence of painful motion and slight instability. 4. For the duration of the period on appeal, the Veteran’s right knee disability manifested as non-compensable limited range of motion on flexion accompanied by objective evidence of painful motion and slight instability. CONCLUSIONS OF LAW 1. From February 17, 2011 to May 20, 2013, the criteria for a rating in excess of 10 percent for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. From May 20, 2013, the criteria for a rating in excess of 20 percent for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 3. The criteria for a rating in excess of 10 percent based on limited range of motion for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 4. The criteria for a rating in excess of 10 percent based on limited range of motion for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 5. For the duration of the period on appeal, the criteria for a rating of 10 percent, but not more, for slight instability of the Veteran’s left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 6. For the duration of the period on appeal, the criteria for a rating of 10 percent, but not more, for slight instability of the Veteran’s right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1997 to November 2000. The Veteran testified before the undersigned Veterans Law Judge in Travel Board hearing in May 2016. A transcript of that hearing is of record. The Veteran’s appeal was most recently before the Board of Veterans’ Appeals (the Board) in March 2020. In its decision, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) because January 2018 VA examinations for her service-connected bilateral knee and thoracolumbar disabilities did not comply with the U.S. Court of Appeals for Veterans Claims’ (the Court) holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Veteran received new VA examinations in October 2020. The Board concludes that the examinations are adequate to adjudicate her claims. The examiners completed thorough reviews of the Veteran’s claims file and performed thorough examinations. The VA examinations also comply with the Court’s holdings in Sharp and Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the Board concludes that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating 1. Entitlement to a Rating in Excess of 10 Percent from February 17, 2011 to May 20, 2013 and in Excess of 20 Percent from May 20, 2013 for a Service-Connected Thoracolumbar Spine Disability The Veteran contends that the rating for her thoracolumbar spine disability did not reflect the severity of her disability during the period on appeal. The Veteran’s service-connected thoracolumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine 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 warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. As discussed more fully below, the Veteran has not perfected her appeal of a 20 percent rating for right lower extremity radiculopathy, and that issue is herein remanded to the AOJ for issuance of a statement of the case and instructions on how the Veteran can perfect her appeal should she opt to do so. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.] The Veteran’s thoracolumbar spine disability is evaluated as 10 percent disabling from February 17, 2011 to May 20, 2013, and 20 percent disabling from May 20, 2013. Each period will be addressed in turn. A. From February 17, 2011 to May 20, 2013 The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for a thoracolumbar spine disability from February 17, 2011 to May 20, 2013. VA treatment records document chronic low back pain but do not show the severity of symptoms warranting a rating in excess of 10 percent. Notably, the treatment records for this period do not show that the Veteran’s forward flexion was limited to 60 degrees or less, her combined range of motion was greater than 120 degrees; and she did not experience muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. May 2011 VA treatment records document the Veteran’s spine was straight, and no tenderness was evident on palpation. The Veteran was also noted to have full range of motion. July 2011 VA treatment records similarly reported full range of motion and that her spine was straight and not tender on palpation. October 2011 and February 2012 VA treatment records do not document her range of motion; however, her spine was described as straight, and no tenderness was noted on palpation. A June 2011 VA examination does not show symptoms warranting a rating in excess of 10 percent. The Veteran’s forward flexion was from 0 degrees to 90 degrees without pain with three repetitions. Flare-ups were denied. Extension was from 0 degrees to 20 degrees with evidence of pain with three repetitions. Her range of motion on lateral flexion was from 0 degrees to 25 degrees both to the right and to the left. There was evidence of pain on motion. Her combined range of motion was 180 degrees, exceeding the 120 degrees warranting a 20 percent rating. The Board acknowledges the Veteran’s reports of symptoms. In December 2011, February 2012, and November 2012 statements, she reported constant pain in her low back that is aggravated by prolonged activities, to include walking long distances and standing for long periods of time. Lifting objects and certain sleep positions also intensified her low back pain. The Veteran also reported that her back would ache when she was sitting still. However, even considering the Veteran’s reports of symptoms and functional loss, the degree of additional limitation and functional impairment described in her statements would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Additionally, prior to May 20, 2013, the evidence does not show muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The November 2012 statement includes the Veteran’s reports of weakness and stiffness, which she described as ankylosis. The Board notes that the Veteran is a medical professional, working as a licensed practical nurse. However, the probative weight of her VA examination and VA treatment records noting chronic back pain and pain on motion in her thoracolumbar spine outweigh the November 2012 statement. That evidence shows that the Veteran retained range of motion in her thoracolumbar spine, and at times she had full range of motion. The Board notes that flare-ups and repetitive use over time impair the Veteran’s range of motion and strength; however, those symptoms are contemplated in her 10 percent rating. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. The June 2011 VA examination notes hospitalization for three days in March 2010, and it notes that the Veteran did not work for two weeks after her discharge due to low back pain. While the Veteran was prescribed bed rest, it was for a period of time shorter than a week. Thus, she was not prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim, and the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A rating in excess of 10 percent for her thoracolumbar spine disability is not warranted from February 17, 2011 to May 20, 2013. B. From May 20, 2013 In a September 2013 rating decision, the AOJ assigned a 20 percent rating from May 20, 2013. A May 2013 VA examination showed muscle spasm resulting in abnormal spinal contour, the basis of the increase for the Veteran’s rating to 20 percent in the September 2013 rating decision. A rating in excess of 20 percent is not warranted, however, as the evidence does not show that the Veteran’s thoracolumbar spine disability manifested as forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The Veteran’s initial range of motion in the May 2013 VA examination was normal in all ranges of motion, and repetitive use testing did not result in loss in her range of motion. The examiner did note that the Veteran had incoordination, pain on movement, and swelling. The Veteran’s strength was 5-out-of-5 for all muscle strength testing. Painful motion and incoordination are encompassed with the Veteran’s 20 percent rating, and the limitations in range of motion necessary for a 40 percent rating are not shown in the May 2013 VA examination. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. The October 2020 VA examination similarly does not show symptoms warranting a 40 percent evaluation. The Veteran’s forward flexion—at its worst with repetitive use and during flare-ups—was 65 degrees. The October 2020 VA examination showed that the Veteran’s thoracolumbar spine was not ankylosed. The Veteran described flare-ups that ranged from moderate to severe, lasted a few minutes, hours, or overnight, and were brought on by walking, bending, sitting longer than 20 minutes, and working as a licensed practical nurse. She alleviated her flare-ups by applying heat, laying completely still, or wearing a brace. The examiner estimated her forward flexion to be from 0 degrees to 65 degrees, extension from 0 degrees to 15 degrees, and normal range of motion from 0 degrees to 30 degrees on lateral flexion and lateral rotation during flare-ups. The Veteran’s estimated range of motion during flare-ups does not support a rating in excess of her current 20 percent rating. See id. The Veteran’s VA treatment records similarly do not show symptoms warranting a 40 percent rating. May 2017 VA treatment records note a history of chronic low back pain without otherwise addressing the Veteran’s symptoms. November 2014, August 2014, May 2014, December 2013, November 2013, and August 2013 VA treatment records notes chronic low back pain and normal range of motion at all joints. The Board notes the Veteran’s statements of record and her hearing testimony. In May 2016, the Veteran reported that her back would seize up when bending over to pick something up or when helping her sister with her children. It would eventually release, and she could stand up. Again, this description of limited range of motion in her back does not rise to the level of ankylosis needed for a 40 percent rating. In addition, the Board notes that the evidence or record documenting the Veteran’s range of motion on flexion and extension and noting no ankylosis is more probative than the Veteran’s May 2016 hearing testimony. Her hearing testimony also included reports of twinges and pains with motion in her back. Pain on motion is embraced by the Veteran’s current 20 percent rating. In light of the foregoing, the Veteran’s claim for a rating in excess of 10 percent from February 17, 2011 to May 20, 2013, and in excess of 20 percent from May 20, 2013 is denied. 2. Entitlement to a Rating in Excess of 10 Percent for Service-Connected Bilateral Knee Disabilities The Veteran contends that she is entitled to ratings in excess of 10 percent for both her left knee and right knee disabilities. A. Evaluations Based on Limited Range of Motion The Veteran’s current 10 percent evaluations are based on limited range of motion on flexion that is not compensable and accompanied by objective evidence of pain on motion. See 38 C.F.R. §§ 4.59; 4.71a, Diagnostic Code 5260. Diagnostic Code 5260 provides a 10 percent evaluation for flexion limited to 45 degrees. A 20 percent rating is proper where flexion is limited to 30 degrees. A 30 percent evaluation is assigned where flexion is limited to 15 degrees. The preponderance of the evidences shows that the Veteran’s range of motion on flexion of both the right knee and left knee is not restricted to 30 degrees. The Veteran received three adequate VA examinations during the period on appeal: July 2011, May 2013, and October 2020. The May 2013 VA examination showed the worst flexion in both knees: flexion from 0 degrees to 125 degrees in her right knee and from 0 degrees to 105 degrees in her left knee. In addition to less movement than normal, repetitive use over time also resulted in incoordination and pain on movement. Her muscle strength was 5-out-of-5 for all ranges of motion. The evidence shows that the Veteran’s flexion exceeded 30 degrees, the level of impairment necessary for a 20 percent rating under Diagnostic Code 5260. In the October 2020 VA examination report, the Veteran described flare-ups as moderate to severe, lasting for minutes or hours, and brought on by walking too long, sitting too long, light jogging, bending at the knees, flexing back, driving long distances, and weather. She alleviates flare-ups by staying off her feet, ice wraps, hot soaks, laying down, and letting time pass. The examiner estimated that her range of motion on flexion in both knees during flare-ups was from 0 degrees to 135 degrees. This does not support a rating in excess of 10 percent under Diagnostic Codes 5260. The Veteran’s VA treatment records likewise show that the Veteran’s range of motion on flexion of the left knee was not limited to 30 degrees. March 2014 VA treatment records note that the Veteran could tolerate active range of motion from 0 degrees to 100 on flexion bilaterally. In addition, November 2014, August 2014, May 2014, December 2013, November 2013, and August 2013 VA treatment records note normal range of motion at all joints. Thus, ratings in excess of 10 percent for her bilateral knee disabilities are not warranted. A separate rating under Diagnostic Code 5261 for limited range of motion on extension is not warranted. Diagnostic Code 5261 provides a 0 percent rating where extension is limited to 5 degrees, and a 10 percent evaluation for extension limited to 10 degrees. A 20 percent evaluation is assigned for extension limited to 15 degrees, and a 30 percent rating is assigned where extension is limited to 20 degrees. A 40 percent evaluation is assigned where extension is limited to 30 degrees, and 50 percent rating is assigned where extension is limited to 45 degrees. As the evidence discussed above shows, the Veteran had full range of motion on extension of both her right and left knee for the duration of the period on appeal. Accordingly, a separate rating under Diagnostic Code 5261 is not warranted here. B. Evaluations Under Diagnostic Code 5257 for Instability Diagnostic Code 5257 provides 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. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Severe” means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). In her hearing testimony, the Veteran reported that her knees give out on her, particularly when she is going up or down stairs. In a March 2017 statement, the Veteran stated that she can sometimes lose her balance and stumble. She noted that it is embarrassing for her because people who do not know her believe she is drunk. She addressed this in her hearing testimony as well, noting that she did not know if it was due to her service-connected knee disabilities or her service-connected back disability. Medical evidence of record shows that the Veteran’s knees are stable bilaterally. The July 2011, May 2013, and October 2020 VA examinations uniformly show no history of recurrent subluxation or lateral instability. On physical examination in all three examinations, joint stability for both knees has consistently been normal, and ligament laxity testing has been negative for the entire period on appeal. VA treatment records document complaints of knee pain; however, they do not document any complaints of knee laxity or objective medical evidence of recurrent subluxation or lateral instability in either knee. March 2014 VA treatment records document negative stability testing; however, pain was noted during testing. In light of the foregoing—and taking consideration of the fact that the Veteran is a nurse—the Board resolves reasonable doubt in her favor and grants a 10 percent rating for slight instability in both her right knee and left knee. Given the objective evidence of record documenting stability in both knees, a rating in excess of 10 percent is not warranted, however. C. Additional Diagnostic Codes Applicable to the Knee and Leg The Board has also considered the other diagnostic codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. The Veteran does not contend, and the record does not show ankylosis of the knee, thus a rating under Diagnostic Code 5256 is not warranted. Genu recurvatum is likewise not shown in the evidence of record, and a rating under Diagnostic Code 5263 is not warranted here. The Veteran does not contend that she is entitled to a rating under Diagnostic Code 5258, and the Board concludes that one is not warranted based on the preponderance of the evidence of record. The evidence shows no injury to the Veteran’s semilunar cartilage, and she has not undergone surgery to remove semilunar cartilage. Accordingly, an evaluation under Diagnostic Code 5258 is not warranted. Finally, no malunion of the tibia and fibula is noted, thus rating under Diagnostic Code 5262 is not warranted. REASONS FOR REMAND 1. Entitlement to a Rating in Excess of 20 percent for Service-Connected Radiculopathy Affecting the Right Lower Extremity In a March 2017 rating decision, the AOJ increased the Veteran’s rating for right lower extremity radiculopathy from 10 percent to 20 percent effective November 15, 2016. In March 2017, the Veteran filed a notice of disagreement appealing the assignment of a 20 percent rating. To date, the AOJ has not issued a statement of the case (SOC) addressing the Veteran’s entitlement to a higher rating following the March 2017 notice of disagreement. The Board will therefore assume jurisdiction over the issue of the rating assigned for radiculopathy of the right lower extremity in the May 2018 rating decision for the sole purpose of remanding it for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: Furnish the Veteran with a statement of the case regarding his entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy. Provide the Veteran with written instructions on perfecting his appeal to the Board. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, 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.