Citation Nr: 21005029 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-01 990 DATE: January 28, 2021 ORDER A rating higher than 20 percent for degenerative disc disease (DDD) of the lumbar spine is denied. An initial rating higher than 10 percent for sciatica of the left lower extremity is denied. Prior to September 17, 2013, a 20 percent rating for arthritis and chondromalacia of the right knee is granted, subject to controlling regulations governing the payment of monetary awards. From November 1, 2014, a 60 percent rating for total right knee replacement is granted, subject to controlling regulations governing the payment of monetary awards. Since February 28, 2019, a rating higher than 30 percent for total left knee replacement, is denied REMANDED A rating higher than 20 percent for arthritis and chondromalacia of the right knee prior to September 17, 2013. A rating higher than 10 percent for instability of the right knee prior to September 17, 2013. A rating higher than 10 percent for arthritis and chondromalacia of the left knee prior to January 24, 2018. A total disability rating based on individual unemployability (TDIU). FINDINGS OF FACT 1. The Veteran’s DDD of the lumbar spine does not result in forward flexion of the thoracolumbar spine to 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine is not shown; and the Veteran has not been prescribed bed rest to treat her lumbar spine disability. 2. The Veteran’s sciatica of the left lower extremity has been manifested by, at worst, mild incomplete paralysis of the sciatic nerve. 3. Prior to September 17, 2013, the Veteran’s right knee disability is manifested by at least limitation of extension to 15 degrees. 4. From November 1, 2014, the Veteran’s total right knee replacement residuals are manifested by chronic severe painful motion or weakness of the right lower extremity. 5. Since February 28, 2019, the Veteran’s total left knee replacement residuals are not manifested by chronic severe painful motion or weakness of the left lower extremity; ankylosis, impairment of the tibia and fibula, and extension limited to 30 degrees or more is not shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for DDD of the lumbar spine are not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243. 2. The criteria for an initial rating in excess of 10 percent for radiculopathy of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8520. 3. The criteria for at least a 20 percent rating for arthritis and chondromalacia of the right knee prior to September 17, 2013 are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5261. 4. The criteria for a 60 percent rating for right total knee replacement residuals are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.1, 4.3, 4.7, 4.71a, DC 5055. 5. The criteria for a rating in excess of 30 percent for residuals of a total left knee replacement are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.1, 4.3, 4.7, 4.71a, DC 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1982 to May 1991. The case is on appeal from October 2011 and November 2013 rating decisions. In a June 2019 decision, the Board restored a 20 percent rating for degenerative disc disease (DDD) of the lumbar spine from May 31, 2011 and denied an effective date for sciatica of the left lower extremity prior to May 31, 2011. The Board remanded the higher rating claims for DDD of the lumbar spine, sciatica of the left lower extremity, arthritis and chondromalacia of the right knee and instability of the right knee prior to September 17, 2013, arthritis and chondromalacia of the left knee prior to January 24, 2018, total right and left knee replacements, along with a TDIU and special monthly compensation (SMC) at the housebound rate (other than from September 17, 2013 to November 1, 2014 and January 24, 2018 to March 1, 2019), for additional development and consideration. In June 2020, following issuance of an April 2020 statement of the case with respect to the issue of SMC at the housebound rate (other than from September 17, 2013 to November 1, 2014 and January 24, 2018 to March 1, 2019), the Veteran opted the claim into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement), thereby withdrawing the claim from the Legacy appeals process. Accordingly, the issue will be adjudicated in a separate Board decision under the AMA. The Board notes that the Veteran’s December 2020 submission is duplicative of a June 2020 submission. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The applicable rating schedule for diseases of the spine is set forth as follows: General Rating Formula for Diseases and Injuries of the Spine (For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease Unfavorable ankylosis of the entire spine: 100 percent Unfavorable ankylosis of the entire thoracolumbar spine: 50 percent Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine: 40 percent Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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: 20 percent. Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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: 10 percent. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable DC, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Painful motion is entitled to at least the minimum compensable rating. 38 C.F.R. § 4.59; Sowers v. McDonald, 27 Vet. App. 472 (2016); Burton v. Shinseki, 25 Vet. App. 1 (2011); see also Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). 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). Under DC 5257, a 10 percent rating is warranted for either slight recurrent subluxation or slight lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or moderate lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or severe lateral instability. Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. Normal range of motion of the knee is zero degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. Separate ratings may be assigned under DC 5260 and 5261 for disability of the same joint where there is both compensable limitation of flexion and extension). See VAOPGCPREC 9-2004. The evidence must show compensable limitation of flexion (limited to 45 degrees) or extension (limited to 5 degrees) to warrant separate compensable ratings for limitation of flexion and extension. Under DC 5055, pertaining to total knee replacement, a 100 percent rating is assigned for one year following implantation of prosthesis; a 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity; a 30 percent minimum rating is warranted for intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to DCs 5256, 5261, or 5262. Under the peripheral nerve impairment provisions of DC 8520, a 10 percent rating is warranted where there is mild incomplete paralysis; a 20 percent rating is warranted where there is moderate incomplete paralysis of the sciatic nerve; and a 40 percent rating is warranted where there is moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. A rating of 60 percent is warranted for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy; and complete paralysis of the sciatic nerve (where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or lost), warrants the highest rating of 80 percent. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury; the relative impairment in motor function; trophic changes; or sensory disturbances. 38 C.F.R. § 4.120. Analysis 1. A rating higher than 20 percent for DDD of the lumbar spine. The Veteran seeks a rating higher than 20 percent for her low back disability. Pursuant to the Board’s June 2019 remand, the Veteran was afforded a VA examination with respect to the severity of DDD of the lumbar spine in July 2020. The examination report reflects forward flexion to 90 degrees and extension to 15 degrees with no additional functional loss on repetitive use testing. Right and left lateral flexion were each to 20 degrees and right and left lateral rotation were each to 30 degrees. During flare ups, the examiner estimated forward flexion was 70 degrees, extension was 10 degrees, and no change in lateral flexion and rotation was indicated. No ankylosis was indicated. Other than service-connected lower extremity radiculopathy, the examiner reported that the Veteran had no associated neurologic abnormalities. Further, private treatment records in March 2018 reflect the impression of x-ray examination of the lumbar spine was mild DDD L3-L4. A higher rating is not warranted under the Formula for Rating IVDS. The Board notes that although the RO assigned the 20 percent rating under DC 5243 pertaining to IVDS, the July 2020 VA examiner reported that the Veteran did not have IVDS. Regardless, IVDS can be rated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In this case, the record does not contain any medical evidence showing the Veteran was prescribed bedrest by a physician for at least 4 weeks during the previous 12 months. Accordingly, a rating in excess of 20 percent is not warranted based on incapacitating episodes. After a complete review of the medical record, the evidence does not demonstrate that the Veteran has limitation of motion (flexion) more closely approximating the criteria for the next higher 40 percent rating, even considering additional limitation of motion during flare ups. The August 2011 and July 2013 VA examination reports reflect forward flexion of the thoracolumbar spine to 90 degrees, with painful motion beginning at 80 degrees. A higher rating is not warranted based on the additional limitation of flexion. The record does not reflect findings to support a rating higher than the 20 percent currently assigned. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating higher than 20 percent for DDD of the lumbar spine, and thus, there is no doubt to be resolved. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. A rating higher than 20 percent for DDD of the lumbar spine is not warranted. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). 2. An initial rating higher than 10 percent for sciatica of the left lower extremity. As noted in the June 2019 Board decision, the RO assigned a separate 10 percent rating for sciatica of the left lower extremity under DC 8520 as a part of the service-connected lumbar spine disability. The July 2020 VA back examiner reported that sciatica with involvement of L4/L5/S1/S2/S3 nerve roots of the left lower extremity was mild. No associated pain was noted. The Veteran retained normal 5/5 strength in her lower extremities with no muscle atrophy, and reflex examination was normal. As such, the disability picture due to radiculopathy of the left lower extremity does not more closely approximate the criteria for a 20 percent rating or higher. This is the most persuasive evidence as to the severity of the condition. The preponderance of the evidence is against the claim; the benefit of the doubt doctrine is not applicable; and a rating higher than 10 percent for sciatica of the left lower extremity is therefore not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). 3. A rating higher than 10 percent for arthritis and chondromalacia of the right knee prior to September 17, 2013. The Veteran contends that a higher rating is warranted for her service-connected arthritis and chondromalacia of the right knee prior to September 17, 2013, when she had a total right knee replacement. Prior to September 17, 2013, the Veteran’s right knee disability was assigned a 10 percent rating under DC 5003-5261 based on arthritis resulting in functional loss due to painful motion. 38 C.F.R. § 4.59. Although the July 2020 VA examiner stated that it would require speculation to estimate additional functional loss during flare ups based on examinations from years earlier, additional evidence associated with the claims file in April 2020 reflects that the Veteran was reduced to only sedentary employment in 2009, and limitations due to arthritis of the right knee were noted to result in chronic moderate right knee pain, for which strong pain medications were prescribed. See April 2020 Social Security Administration (SSA) records. When this evidence is viewed together June 2013 VA treatment records reflecting imaging of the right knee reflected patellofemoral and medial/lateral joint space narrowing, squaring of condyles, subchondral sclerosis and osteophyte formation; the July 2013 VA knee examination report reflecting painful extension beginning at five degrees with an estimated additional loss of 10 degrees of motion during flare-ups; and the August 2011 VA knee examination report noting flare ups of extreme knee pain as often as four times per day lasting up to four hours, resulting in difficulty standing, walking, or sitting for more than 10 minutes, at least a 20 percent rating for the right knee prior to September 17, 2013, is warranted under DC 5261. The issue of whether an even higher rating is warranted prior to September 17, 2013 is addressed in the remand section below. 4. A rating higher than 30 percent for total right knee replacement since November 1, 2014. The Veteran seeks a higher rating for a total right knee replacement since the date of the expiration of the 100 percent rating following the surgery. She maintains that the 30 percent rating currently assigned under DC 5055 does not reflect the severity of right knee pain and functional impairment. Pursuant to the Board’s June 2019 remand, the Veteran was afforded a VA examination in July 2020. The report of examination notes flare-ups of right knee pain and swelling, especially after weight bearing, as well as with prolonged sitting. The examiner reported painful right knee flexion, noting that in addition to the limited duration of the Veteran’s ability to walk/weight bear and sit, the Veteran had difficulty squatting and was not able to carry or lift a heavy load. Further, VA treatment records in August 2020 refect a right knee sprain in January 2020 and increased right knee pain as a result of a fall was noted in May 2020. Additionally, an August 20, 2019 record reflects increased right knee pain for three to four days, notably with weight bearing, and a right knee sprain was noted the following month. See September 2019 VA treatment records. The Board notes that, although only mild limitation of motion of the right knee was noted in November 2016, severe right knee pain was noted in March 2015. See February 2018 VA treatment records. In addition, in April 2015, the mechanical symptoms in her right knee were noted to be likely attributable to muscle imbalance and quadriceps weakness in April 2015. Further, and although no change in the position of the prosthesis, evidence of patellar instability, or effusion, was noted in in June 2015, a July 2015 computed tomography (CT) scan of the right knee was noted to show complex joint effusion and diffuse increased density with Hoffa’s fat pad. Resolving reasonable doubt in the Veteran’s favor, the Board finds that a 60 percent rating for the right knee disability since November 1, 2014 is warranted under DC 5055. See 38 U.S.C. § 5107(b);. A 60 percent rating is the maximum rating under DC 5055. 5. A rating higher than 30 percent for total left replacement since February 28, 2019. The Veteran seeks a higher rating for total left knee replacement residuals since the date of the expiration of the 100 percent rating following the surgery. She maintains that the 30 percent rating assigned following the one-year period after the knee replacement does not reflect the severity of the residuals. Pursuant to the Board’s June 2019 remand, the Veteran was afforded a VA examination in July 2020. The report of examination notes no pain on weight bearing or nonweight bearing. Strength in the left knee was 5/5. In addition, the examiner reported that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during any left knee flare ups. See also August 2020 opinion. The examiner stated that all of the Veteran’s problematic knee symptoms/functional impairment are attributable to the right total knee replacement residuals. VA treatment records in April 2018 reflect normal range of motion of the left knee, noting the Veteran’s report of full range of motion since completing physical therapy in 2017. In addition, and although the Veteran’s noted left knee swelling after a fall the day before, no swelling was noted on examination and the left knee was only mildly tender to palpation. In addition, full range of motion of the left knee with no effusion or warmth was reported in December 2019. See August 2020 CAPRI documents. Furthermore, higher ratings under DCs 5256, 5261 and 5262 are not available. The July 2020 examiner reported no ankylosis of the left knee. Limitation of motion was noted to be mild. Extension was zero degrees, and it was noted that flexion to 125 degrees was not atypical status post knee replacement. In addition, there is no evidence of impairment of the left tibia and fibula. As such, a rating in excess of 30 percent under DC 5055 have not been met. In sum, the preponderance of the evidence is against the claim; the benefit of the doubt doctrine is not applicable; and a rating higher than 30 percent for total left knee replacement residuals since February 28, 2019 is therefore not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d).   REASONS FOR REMAND 1. A rating higher than 20 percent for arthritis and chondromalacia of the right knee prior to September 17, 2013. 2. A rating higher than 10 percent for instability of the right knee prior to September 17, 2013. 3. A rating higher than 10 percent for arthritis and chondromalacia of the left knee prior to January 24, 2018. Pursuant to the Board’s June 2019 remand, the Veteran was afforded a VA examination in July 2020, and an addendum opinion was provided in August 2020. Although the addendum states that retroactive opinions as to the severity of the Veteran’s right and left knee disabilities, including flare ups, would be speculative due to length of time that elapsed since the prior VA examinations in August 2011 and July 2013, those same examinations were the basis for the negative opinion with respect to where the Veteran had instability of the left knee prior to January 24, 2018. As reflected in the prior remand, if an opinion in that respect was too speculative, an opinion to that effect should make clear that all relevant, procurable data had been considered, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. Moreover, the opinion does not sufficiently address the severity of right knee instability prior to September 17, 2013. As such, the opinions are not completely adequate. Thus, issues are remanded to obtain new opinions. 4. A TDIU. As reflected in the decision above, the Board granted a 20 percent rating for arthritis and chondromalacia of the right knee prior to September 17, 2013. In addition, the Board is remanding the issues of higher ratings for both right knee instability and right knee arthritis with chrondromalacia, prior to September 17, 2013, as well as the higher rating claim for arthritis and chondromalacia of the left knee prior to January 24, 2018. As such could significantly impact a decision on the issue of a TDIU, the issues are inextricably intertwined. Thus, a remand of the a TDIU is required. In addition, on remand, the RO should attempt to obtain employment records associated with the employer reported in the Veteran’s June 2020 submission. See June 2020 VA Form 21-4138 Statement in Support of Claim. The matters are REMANDED for the following action: 1. Attempt to obtain the employment information from the employer identified in June 2020. 2. Forward the claims file to an appropriate clinician, other than the July 2020 VA knee examiner, for an opinion. The need for another examination is left to the discretion of the clinician offering the opinion. The clinician should estimate the amount in degrees of range of motion lost due to right and left knee flare-ups experienced by the Veteran at the time of the examinations conducted in August 2011 and July 2013. The examiner should also provide an opinion as to the severity of service-connected instability of the right knee at the time of the examinations conducted in August 2011 and July 2013, and as to whether there was instability of the left knee prior to January 17, 2018. (Continued on the next page)   If the examiner cannot provide some or all such retrospective opinions, the examiner must make clear that he or she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. All opinions expressed should be accompanied by supporting rationale. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Taylor 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.