Citation Nr: 21005193
Decision Date: 01/29/21	Archive Date: 01/29/21

DOCKET NO. 09-23 210
DATE: January 29, 2021

ORDER

1. Entitlement to increases in the “staged” (10 percent prior to July 16, 2014, 20 percent from July 16, 2014 to March 27, 2015, and 40 percent from March 27, 2015) ratings assigned for the Veteran’s service-connected low back disability, is denied.

2. An increased (to 40 percent, combined) rating is granted throughout for the Veteran’s service-connected left knee disability, subject to regulations governing payment of monetary awards.

REMANDED

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 30, 2015, is remanded.

FINDINGS OF FACT

1. Prior to July 16, 2014, the Veteran’s low back disability is not shown to have been manifested by forward flexion of the thoracolumbar spine limited to 60 degrees or less, combined range of motion limited to 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, separately ratable neurological manifestations, or incapacitating episodes of disc disease.  

2. From July 16, 2014 to March 27, 2015, the Veteran’s low back disability is not shown to have been manifested by forward flexion limited to 30 degrees or less, ankylosis of the spine, separately ratable neurological manifestations, or incapacitating episodes of disc disease.

3. From March 27, 2015, the Veteran’s low back disability is not shown to have been manifested by unfavorable ankylosis of the entire thoracolumbar spine, separately ratable neurological manifestations, or incapacitating episodes of disc disease.

4. Prior to July 16, 2014, the Veteran’s left knee disability is reasonably shown to have been manifested by arthritis with painful limited motion, dislocated semilunar cartilage with frequent episodes of locking and effusion into the joint, and slight, but not greater, instability; it is not shown to have been manifested by compensable limitations of flexion or extension, ankylosis, nonunion or malunion of the tibia or fibula, or genu recurvatum.

5. From July 16, 2014 to August 4, 2015 the Veteran’s left knee disability is reasonably shown to have been manifested by extension limited at 15 degrees (during flareups), dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint, and slight, but not greater, instability; it is not shown to have been manifested by compensable limitation of flexion, ankylosis, nonunion or malunion of the tibia or fibula, or genu recurvatum.

6. From August 4, 2015 to December 3, 2019, the Veteran’s left knee disability is reasonably shown to have been manifested by arthritis with painful limited motion, dislocated semilunar cartilage with frequent episodes of locking and effusion into the joint, and slight, but not greater, instability; it is not shown to have been manifested by compensable limitations of flexion or extension, ankylosis, nonunion or malunion of the tibia or fibula, or genu recurvatum.

7. From December 3, 2019, the Veteran’s left knee disability is shown to have been manifested by extension limited at 15 degrees, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint, and slight, but not greater, instability; it is not shown to have been manifested by compensable limitation of flexion, ankylosis, nonunion or malunion of the tibia or fibula, or genu recurvatum. 

CONCLUSIONS OF LAW

1. Ratings for the Veteran’s low back disability in excess of 10 percent prior to July 16, 2014, in excess of 20 percent from July 16, 2014 to March 27, 2015, and in excess of 40 percent from March 27, 2015 are not warranted.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5235-5243

2. Prior to July 16, 2014, the Veteran’s left knee disability warrants a combined 40 percent, but no higher, rating (based on a formulation of 20 percent under Code 5258, 10 percent under Code 5257, and 10 percent under Code 5003).  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.25, 4.59, 4.71a; Codes 5003, 5010, 5256-5263.

3. From July 16, 2014 to August 4, 2015, the Veteran’s left knee disability warrants a combined 40 percent, but no higher, rating (based on a formulation of 20 percent under Code 5261, 20 percent under Code 5258, and 10 percent under Code 5257).  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.25, 4.59, 4.71a; Codes 5003, 5010, 5256-5263.

4. From August 4, 2015 to December 3, 2019, the Veteran’s left knee disability warrants a combined 40 percent, but no higher, rating (based on a formulation of 20 percent under Code 5258, 10 percent under Code 5257, and 10 percent under Code 5003).  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.25, 4.59, 4.71a; Codes 5003, 5010, 5256-5263.

5. From December 3, 2019, the Veteran’s left knee disability warrants a combined 40 percent, but no higher, rating (based on a formulation of 20 percent under Code 5261, 20 percent under Code 5258, and 10 percent under Code 5257).  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.25, 4.59, 4.71a; Codes 5003, 5010, 5256-5263.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant is a Veteran who served on active duty from July 1984 to April 1988 and from March 1995 to May 1997.  This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision that, in pertinent part, continued 10 percent ratings, each, for low back and left knee disabilities.  In April 2014, the case was remanded to reschedule the Veteran for a hearing before the Board.  In May 2015, a videoconference hearing was held before the undersigned; a transcript is associated with the record.  An interim (August 2015) rating decision, in pertinent part, increased the rating for the low back disability to 20 percent, effective March 27, 2015, and denied a TDIU rating.  In September 2015 and May 2017, the Board remanded the claims for additional development.  Another interim (March 2018) rating decision increased the rating for the left knee to 30 percent and the low back to 40 percent, effective March 27, 2015, each.

In August 2018, the Board issued a decision which, in relevant part: granted a 20 percent rating for the low back disability from July 16, 2014 to March 27, 2015; denied ratings for the low back disability in excess of 10 percent prior to July 16, 2014, in excess of 20 percent from July 16, 2014 to March 27, 2015, and in excess of 40 percent from March 27, 2015; and, remanded the matter of entitlement to increases in the staged (10 percent prior to March 27, 2015, and 30 percent from that date) ratings for a left knee disability.  [The Board found that the matter of entitlement to a TDIU rating had not been re-raised since a prior (August 2015) final rating decision in the context of the instant claims for increase.]

The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in an April 2019 Joint Motion for Partial Remand (JMPR) by the parties.  Initially, the parties agreed that the portion of the Board’s decision that granted a 20 percent rating for the low back disability from July 16, 2014 to March 27, 2015 “is favorable to [the Veteran] and is not before the Court.”  However, the parties agreed that the VA examinations of record are inadequate for rating purposes as the examiners did not opine on functional loss caused by pain on use or during flare-ups, and if possible, express the functional loss in terms of loss of range of motion, pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017).  Regarding the TDIU claim, the parties agreed that the Board erred when it declined to adjudicate the issue, finding that a Notice of Disagreement (NOD) to the August 2015 rating was not required considering the pending NODs in the instant claims for increase (in essence rendering the decision incapable of finality).  An April 2019 CAVC Order remanded the matters for compliance with JMPR instructions.

In November 2019, the Board a rating in excess of 10 percent for bilateral plantar fasciitis prior to March 27, 2015, and remanded the other matters (low back, left knee, and TDIU) for additional development.  [Accordingly, the matter of entitlement to a rating in excess of 10 percent for plantar fasciitis prior to March 27, 2015, is no longer before the Board.]  

An interim (August 2020) rating decision granted a TDIU rating effective June 30, 2015.  Accordingly, that matter is characterized (as listed above) as entitlement to a TDIU rating prior to that date.  Harper v. Wilkie, 30 Vet. App. 356 (2018).

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4. 

Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  “Staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 

In determining the degree of limitation of motion, the provisions of 38 U.S.C. §§ 4.10, 4.40, and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.

1. Entitlement to increases in the “staged” (10 percent prior to July 16, 2014, 20 percent from July 16, 2014 to March 27, 2015, and 40 percent from March 27, 2015) ratings assigned for a low back disability, is denied.

Legal Criteria

The criteria for rating spine disabilities are found at 38 C.F.R. § 4.71a, Codes 5235 – 5243.  A spine disability which includes disc pathology may be rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or based on Incapacitating Episodes of Disc Disease, whichever is more favorable.  Under the General Formula, the following ratings apply to disabilities of the thoracolumbar 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 (ROM) 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 when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or combined ROM of the thoracolumbar spine is not greater than 120 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited 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.  And a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  

Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a, Code 5243, Note (1).  

Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, the following ratings apply: A 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12 months.  A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks per year.  A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks per year.  A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks but less than twelve weeks per year.  An “incapacitating episode” is defined as “a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.”  38 C.F.R. § 4.71a, Code 5243, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1).

An increased rating may be assigned for up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period.  38 C.F.R. § 3.400(o)(2).  Consequently, the evaluation period for consideration here is from June 2006 (a year prior to the June 7, 2007 date of claim) to the present.

Factual Background

A September 2007 buddy statement (from G.G.) reports that the Veteran has ongoing lower and middle back pain and stiffness.  G.G. reported that sometimes the Veteran must lay down on the couch to relieve her back pain.  She also reported that when they go see a movie, the Veteran will bring her own pillow for back support and that she must stand up at times.  ROM estimates were not provided.

On December 2007 VA spine examination, the Veteran reported daily lower back pain, rated 5/10, and stiffness, precipitated by prolonged sitting/standing and repetitive bending at the waist, and relieved by stretching or lying down.  She denied additional limitation of motion or functional impairment during flare-ups.  She also denied numbness, weakness, bowel/bladder problems, and incapacitating episodes.  Her gait was steady.  Objective ROM testing showed forward flexion to 85 degrees, extension to 30 degrees, right and left lateral bending to 30 degrees, each, and right and left rotation to 30 degrees, each.  Repetitive use testing did not result in additional loss of ROM, weakness, fatigability, or lack of endurance.  Deep tendon reflexes were normal; lower extremities showed normal muscle tone and bulk.  X-rays showed no evidence of acute fracture or significant degenerative disease.  The diagnosis was lumbosacral strain.  The examiner noted that the Veteran’s spine does not cause functional limitation with regard to daily activities or her ability to attend school (noting that the Veteran had not worked since a 2000 (postservice) motor vehicle accident that resulted in a “brain injury”).    

On January 2009 VA spine examination, the Veteran reported that her back pain had worsened since her prior examination.  She described the pain as dull, rated 2-3/10, with radiation to her right leg and foot.  She endorsed having flare-ups once a month, lasting for a few days, with pain rated 8/10.  On examination, the spine did not show any deformity.  Objective ROM testing showed forward flexion to 65 degrees, extension to 20 degrees, right and left lateral bending to 25 degrees, each, and right and left rotation to 25 degrees, each; objective evidence of pain was noted at the end of each ROM.  Repetitive use testing “caused increased pain but no increase in weakness, fatigability or additional functional limitations.”  Tenderness to palpation was noted on the right sacroiliac joint.  X-rays were unremarkable.  Her gait was antalgic on the right.  Lower extremity muscle strength, sensory examination, and reflex examinations were all normal.  The diagnoses were lumbosacral sprain and right lumbosacral radiculopathy by history; notably, radiculopathy was not found on examination.  The examiner noted that functional limitations include difficulty bending, twisting, doing household chores, bathing, and dressing.  

April and July 2009 VA primary care records note complaints of back pain.  Examination showed tenderness to palpation on the right paraspinal muscles and pain with flexion and lateral flexion.  ROM was not noted.  

A November 2, 2010 clinical record notes complaints of back pain after a fall.  She reported that she was “barely able to bend down to tie shoes,” (suggesting she retained a significant amount of forward flexion).  X-rays were negative for acute fracture or dislocations.  Mild tenderness to palpation was noted.  ROM was noted as, “Minimal flexion, able to extend, unable to twist body to left.”  The assessment was a likely acute strain, “No red flags notes including urinary incontinence, worsening pain with lying down, history of cancer.”  

Physical therapy (PT) records from December 2010 to December 2011 note treatment for low back pain.  While many records do not contain ROM notations, several do, including those from December 2010, August 2011, and September 2011 which all note that lumbar ROM was “60% of norm.” 

A September 2011 clinical record notes complaints of low back pain.  She had discontinued PT after several months of regular visits; she reported that the exercised helped.  The impression was lower back pain; she was advised to continue PT exercises at home and include yoga. 

On February 2012 VA spine examination, the Veteran reported increased back pain, greater on the left.  She described the pain as “dull” and denied radiation of pain, numbness, tingling, weakness, and bower/bladder problems.  She endorsed having occasional flare-ups, caused by lifting, that last hours.  Objective ROM testing showed forward flexion to 80 degrees, extension to 20 degrees, right and left lateral bending to 25 degrees, each, and right and left rotation to 30 degrees, each; objective evidence of pain was noted at the end of each ROM.  Although repetitive use testing did not result in additional loss of ROM, functional loss was noted due to pain on movement and excess fatigability.  Tenderness to palpation was noted along the paraspinous muscles L1-L5.  Guarding and/or muscle spasm was noted, but did not result in abnormal gait or spinal contour.  Lower extremity muscle strength, sensory examination, and reflex examinations were all normal.  There was no muscle atrophy, radicular pain/symptoms, or neurological manifestations.  IVDS was not diagnosed.  The Veteran reported regular use of a cane.  X-rays showed mild bilateral sacroiliac joint osteoarthritis; there was no radiographic evidence of acute osseous abnormality.  The diagnoses were lumbosacral strain and DDD.  The examiner opined that the back condition precludes heavy lifting.   

A July 2012 PT record notes that lumbar ROM was “40% of norm.”  A September 1, 2012 PT record notes that lumbar flexion was decreased to “20% of norm.”  A September 21, 2012 PT record notes that lumbar ROM was “60% of norm.”  

Clinical records in November 2012 and December 2013 note that the Veteran’s gait was normal with good stability and coordination.  

On July 2013 orthopedic examination for Social Security Administration (SSA) disability claim purposes, the Veteran reported constant, sharp mid and lower back pain.  She reported that the pain is increased with walking or with sitting for more than 20 minutes / standing for more than 30 minutes.  On examination, it was noted that she used a cane; the orthopedic physician opined that she does not need it, as she walked “extremely well.”  ROM testing was normal.  There was diffuse tenderness over the dorsolumbar spine, but no swelling, erythema, or warmth.  Strength and reflex tests were normal.  The examiner opined that back pain would not limit activities, and that the Veteran “does not have a medically determinable impairment that would limit function.”  [A September 2015 SSA disability determination discontinued disability payments effective December 2013, based on a finding of improvement of chronic mental disorder (noting a 2000 motor vehicle accident with closed head injury).]    

A February 2014 back conditions Disability Benefits Questionnaire (DBQ), evaluation by a private physical therapist, notes complaints of back pain with flare-ups that result in impaired gait, decreased tolerance to prolonged positioning, and lower extremity endurance deficits.  Objective ROM testing showed forward flexion to 75 degrees (with evidence of painful motion at 43 degrees), extension to 20 degrees, right and left lateral bending to 20 degrees, each, right lateral rotation to 20 degrees, and left lateral rotation to 15 degrees.  Repetitive use testing showed flexion limited to 70 degrees, extension to 15 degrees, right flexion to 20 degrees, left flexion to 15 degrees, and right and left rotation to 20 degrees, each.  The examiner noted additional functional loss due to less movement than normal, weakened movement, excess fatigability, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, and/or weight bearing.  There was tenderness to palpation.  Guarding or muscle spasms were noted to result in abnormal gait.  Lower extremity muscle strength tests were all 3/5.  Muscle atrophy in the quadriceps and calf muscles was noted.  Deep tendon reflex testing was not completed.  Sensory examination was normal on the left and decreased on the right.  It was noted that the Veteran has bilateral intermittent lower extremity pain, severe right lower extremity paresthesias/dysesthesias, moderate left lower extremity paresthesias/dysesthesias, and moderate right lower extremity numbness (there was no finding regarding left lower extremity numbness).  The examiner indicated that the Veteran did not have IVDS, but also indicated that she has had incapacitating episodes lasting at least one week, but less than two weeks, due to IVDS.  She noted occasional use of a wheelchair and regular use of a brace, crutches, a cane, and a walker.  She did not examine or review any imaging studies of the spine, and wrote “N/A” as to the impact her spine has on her ability to work.  The diagnoses were lumbar pain, abnormality of gait, and bilateral radiculopathy.  

A May 2014 private MRI of the lumbar spine showed mild disc desiccation and loss of disc height in the lower lumbar spine; central canal stenosis and neuroforaminal narrowing were not shown.  

A July 16, 2014 back conditions DBQ, completed by a different private physical therapist, notes complaints of increased acute lumbar pain since April 2014 (when the Veteran reported being struck by a vehicle while standing beside her own vehicle).  She endorsed flare-ups 3 to 4 times per week which preclude housework and “general movement.”  Objective ROM testing showed forward flexion to 35 degrees (with objective evidence of painful motion at 35 degrees), extension to 15 degrees (with objective evidence of painful motion at 5 degrees) right lateral bending to 15 degrees (with objective evidence of painful motion at 5 degrees), left lateral bending to 10 degrees (with objective evidence of painful motion at 10 degrees), right lateral rotation to 15 degrees (with objective evidence of painful motion at 15 degrees), and left lateral rotation to 15 degrees (without evidence of painful motion).  The Veteran was unable to complete repetitive use testing due to “acute pain.”  Tenderness to palpation was noted.  The examiner indicated that guarding or muscle spasms resulted in abnormal gait but also indicated that guarding or muscle spasm do not result in abnormal gait or abnormal spinal contour.  Lower extremity muscle strength tests were 3/5 bilaterally for hip flexion and knee extension, and 5/5 bilaterally for ankle plantar flexion, ankle dorsiflexion, and great toe extension.  There was no muscle atrophy.  Deep tendon reflex testing was not completed due to acute bilateral knee and ankle pain.  Sensory examination was normal on the left and decreased on the right.  The examiner noted that the Veteran has constant lower extremity pain, intermittent lower extremity pain, lower extremity paresthesias/dysesthesias, and lower extremity numbness, each noted as moderate on the right and mild on the left.  No other neurologic abnormalities were noted.  The examiner indicated that the Veteran did not have IVDS, but also indicated that she has had incapacitating episodes lasting at least one week, but less than two weeks, due to IVDS.  She noted occasional use of a wheelchair and brace, and regular use of crutches, a cane, and a walker.  The diagnoses were lumbosacral pain, thoracic pain, and joint pain.  She opined that the Veteran’s back disability limits her ability to bend and lift, or engage in prolonged sitting, standing, or walking.  

On March 27, 2015, VA received the Veteran’s claim for a TDIU rating based on her service-connected disabilities.  

At the May 2015 Board hearing, the Veteran reported back stiffness and the use of assistive devices such as a cane, walker, crutches, and wheelchair.  She testified that she has “tweaked out” her back with simple tasks, such as moving groceries.  She also testified that she cannot sit for prolonged periods of time because her leg might fall asleep.  She reported taking medication including generic Vicodin, Tramadol, and Baclofen (for muscle spasms), and undergoing acupuncture for “maintenance” in place of medication.     

On August 2015 VA spine examination, the Veteran report back pain rated 2/10 that flares to 8/10 with cool weather.  Objective ROM testing showed forward flexion to 40 degrees, extension to 10 degrees, right and left lateral bending to 15 degrees, each, and right and left rotation to 20 degrees, each.  The examiner noted positive Waddell’s signs and “indications of lack of full effort.”  There was no evidence of pain with weight bearing.  Repetitive use testing showed no additional loss of ROM or functional loss.  Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time or with flare-ups.  There was no guarding or muscle spasm.  Lower extremity muscle strength, sensory examination, and reflex examinations were all normal.  There was no muscle atrophy, radicular pain/symptoms, or neurological manifestations.  The spine was not ankylosed.  IVDS was not diagnosed.  The Veteran reported occasional use of crutches.  Following examination and review of the May 2014 MRI, the examiner opined that the Veteran’s back condition does not impact her ability to work.  “Her examination findings and MRI results are discordant with her symptoms and limitations.  She has crutches but frequently carries them rather than using them for weightbearing.”  

A November 2016 PT record notes that lumbar ROM was “40% of norm.”  

A May 2017 MRI back showed disc desiccation and mild disc bulges from L3-L4 through L5-S1, resulting in mild bilateral neuroforaminal narrowing at those levels; spinal canal narrowing was not shown.  

An August 2017 PT record notes that lumbar ROM was “60% of norm.”

On October 2017 VA spine examination, the Veteran reported back pain, rated 2-5/10, and stiffness.  She endorsed flare-ups caused by twisting, sitting for long periods of time, and attempting house chores such as vacuuming.  Objective ROM testing showed forward flexion to 5 degrees, extension to 5 degrees, right and left lateral bending to 5 degrees, each, and right and left rotation to 5 degrees, each; pain was noted on examination, including with weight bearing.  Repetitive use testing showed no additional loss of ROM or functional loss.  Although not conducted immediately after repetitive use over time, the examination was medically consistent with the Veteran’s descriptions of functional loss with repetitive use over time and during flare-ups.  There was no guarding or muscle spasm.  Lower extremity muscle strength, sensory examination, and reflex examinations were all normal.  There was no muscle atrophy, radicular pain/symptoms, or neurological manifestations.  The spine was not ankylosed.  IVDS was not diagnosed.  The Veteran reported regular use of a back brace, and constant use of a wheelchair, walker, or crutches.  The diagnoses were lumbar strain and degenerative arthritis of the spine.  The examiner noted that the Veteran is unable to bend over to pick up items or ambulate without a walker.   

A January 2018 clinical record notes complaints of chronic back pain.  On examination, the lumbar spine was tender to light palpation; ROM was “limited.”  X-rays showed no acute osseous abnormality.  The impression was mild degenerative lumbar spine changes.  

A September 2018 VA clinical record notes the Veteran received a new soft back brace.  In late-2018 and early-2019, she received acupuncture treatment.  

On December 2019 VA back examination, degenerative arthritis of the spine was diagnosed.  The Veteran reported constant back pain, rated 1/10, and intermittent pain, rated 10/10, described as sharp and stabbing, worse with repetitive bending, twisting, and lifting.  She self-treated with ice/heat, stretching, rest, pain medication, and a TENS unit.  She endorsed flare-ups described as “My back pain has gotten worse.”  She reported that she is unable to reach behind her body while driving without “throwing out” her back.  Initial ROM testing showed forward flexion to 45 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, each, right lateral rotation to 10 degrees, and left lateral rotation to 5 degrees.  Pain was noted on examination (in all planes) but did not result in/cause functional loss.  There was evidence of pain with weight-bearing and on palpation.  Following repetitive use testing, there was no additional loss of function or ROM.  Although the examination was not conducted after repeated use over time or during a flare-up, the examiner (an orthopedic surgeon) opined that the Veteran experiences no additional functional loss or motion loss with repetitive use over a period of time and during flare-ups; he specifically opined that such ROM “is the same as the [ROM] noted in the initial range of motion section.”  He explained that he reached such conclusion after examining the Veteran, listening to her history and subjective complaints, and reviewing the record.  [He later explained that the ROM was consistent on active and passive testing, and with weight-bearing and non-weight-bearing.]  There was no guarding or muscle spasm; there was no muscle atrophy.  Strength tests were all 4/5; reflex and sensory tests were all normal.  The spine was not ankylosed.  There was no radiculopathy.  There were no other neurologic abnormalities.  IVDS was not diagnosed.  The Veteran reported regular use of a wheelchair and crutches, and occasional use of a cane for pain control (with partial, but not complete relief of symptoms).  The examiner noted September 2019 lumbar spine x-rays showed mild lower lumbar facet arthrosis.  He opined that the low back disability manifests in “moderate impairment in prolonged sitting, standing, repetitive bending, twisting, movements, and lifting.”     

Analysis

Prior to July 16, 2014

The record does not show that prior to July 16, 2014, the low back disability was manifested by symptoms and impairment of (or approximating) a severity warranting a rating in excess of 10 percent.  Notably, forward flexion was to 65 degrees or greater on VA examinations in December 2007, January 2009, and February 2012, and on a February 2014 private DBQ report.  The Board notes that a September 1, 2012 PT record notes flexion limited to 20% of normal, suggesting that flexion was limited to approximately 22 degrees (as normal forward flexion of the lumbar spine is 0 to 90 degrees.  See 38 C.F.R. § 4.71a, Plate V.)  However, 20 days later, a PT record notes that lumbar ROM was 60% of normal.  The Board finds this 20-day period too brief to constitute a distinct period of time when increased symptomatology warranting a “staged increase” was shown, particularly considering its inconsistency with clinical evidence immediately before and after that single visit.  The Board also notes that the Veteran’s gait was noted to be antalgic on January 2009 VA examination and in a February 2014 private DBQ report.  However, those findings do not identify a distinct period when manifestations and impairment warranting a staged increased rating were shown; the findings are inconsistent with overall findings of steady and normal gait (as noted on December 2007 and February 2012 VA examinations, and in November 2012 and December 2013 clinical records).  [The Board also notes that combined ROM of the thoracolumbar spine was greater than 120 degrees on all VA examinations during this period and on the February 2014 private DBQ report.]  

The Board has considered whether a rating in excess of 10 percent under the Formula for Rating IVDS based on incapacitating episodes was warranted.  The February 2014 private examiner indicated that the Veteran did not have IVDS, but also indicated that she has had incapacitating episodes lasting at least one week, but less than two weeks, due to IVDS (a duration which would warrant a 10 percent rating).  Inconsistency aside, review of the record does not show physician-prescribed bedrest.  Accordingly, a rating in excess of 10 percent is not warranted prior to July 16, 2014.  

July 16, 2014 to March 27, 2015

The Veteran’s low back disability has been assigned a 20 percent rating from July 16, 2014 to March 27, 2015.  The record does not show that at any time during that period the Veteran’s thoracolumbar spine disability was manifested by forward flexion limited to 30 degrees or less or ankylosis of the thoracolumbar spine (as required by the next higher (40 percent) rating).  Notably, the July 16, 2014 private DBQ notes that ROM testing showed forward flexion to 35 degrees (with objective evidence of painful motion at 35 degrees).  Although flare-ups were endorsed, the private examiner failed to provide estimated ROM during such flare-ups or describe their duration.  The Board has also considered whether a rating in excess of 20 percent under the Formula for Rating IVDS based on incapacitating episodes is warranted.  The July 2014 private examiner indicated that the Veteran did not have IVDS, but also indicated that she has had incapacitating episodes lasting at least one week, but less than two weeks, due to IVDS (a frequency which would warrant a 10 percent rating).  Inconsistency aside, review of the record does not show physician-prescribed bedrest.  Accordingly, a rating in excess of 20 percent is not warranted from July 16, 2014 to March 27, 2015.  

From March 27, 2015

The Veteran’s low back disability has been assigned a 40 percent rating from March 27, 2015.  The next higher rating (50 percent) under the General Formula requires unfavorable ankylosis of the entire thoracolumbar spine.  All evaluations and examinations during this period have shown that the Veteran retains some (albeit severely restricted on October 2017 VA examination) motion of the thoracolumbar spine (even with factors such as pain, repeated use over time, and flare-ups considered); no examiner or provider has opined that the spine was ankylosed, much less ankylosed in an unfavorable position.  Notably, August 2015 VA examination showed forward flexion to 40 degrees, and November 2016 and November 2017 PT records showed lumbar ROMs were 40 and 60 percent of normal, respectively.  January 2018 x-rays showed mild degenerative changes and September 2019 lumbar spine x-rays showed mild lower lumbar facet arthrosis.  Most recently, on December 2019 VA examination, forward flexion was to 45 degrees (including after repetitive use testing, and as estimated after repeated use over time or during a flare-up).  Finally, as incapacitating episodes requiring physician-prescribed bedrest are neither alleged nor shown, a rating in excess of 40 percent is not warranted for the period from March 27, 2015.

The Board has also considered whether a separate rating is warranted at any point during the appeal period for neurological manifestations of the low back disability.  February and July 2014 private DBQ reports note complaints and diagnoses of radiculopathies, but such complaints/findings are not shown to have been based on any complete neurological evaluation, and were either denied or not found on December 2007, January 2009, February 2012, August 2015, October 2017, and December 2019 VA examinations.  Therefore, they do not establish any distinct periods when neurological manifestations warranting separate compensable ratings were found.  

Based on the foregoing, increases in the staged ratings in excess of 10 percent prior to July 16, 2014, in excess of 20 percent from July 16, 2014 to March 27, 2015, and in excess of 40 percent from March 27, 2015 are not warranted.  The preponderance of the evidence is against this claim.  Therefore, the benefit of the doubt rule does not apply; the appeal in this matter must be denied.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

2. A combined 40 rating is granted throughout for the Veteran’s left knee disability.  

Legal Criteria

The criteria for rating knee disabilities are found at 38 C.F.R. § 4.71a, Codes 5256-5263.  Code 5256 applies when the knee is ankylosed.  Under Code 5257, other knee impairment manifested by recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent (the maximum) when severe.  Under Code 5258, a maximum 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint.  Under Code 5259, a 10 percent rating is assigned for symptomatic removal of semilunar cartilage.  Under Code 5260, limitation of flexion of the leg warrants a 0 percent rating when flexion is limited to 60 degrees; a 10 percent rating when limited to 45 degrees; a 20 percent rating when limited to 30 degrees; and a (maximum) 30 percent rating when limited to 15 degrees.  Under Code 5261, limitation of extension of the leg warrants a 0 percent rating when extension is limited at 5 degrees; a 10 percent rating when limited at 10 degrees; a 20 percent rating when limited at 15 degrees; a 30 percent rating when limited at 20 degrees; a 40 percent rating when limited at 30 degrees; and a (maximum) 50 percent rating when limited at 45 degrees.  Code 5262 applies when there is malunion or nonunion of the tibia and fibula.  Code 5263 applies when there is acquired, traumatic genua recurvatum.

Normal or full ROM of the knee is from 0 degrees of extension to 140 degrees of flexion. Plate II. 38 C.F.R. § 4.71.

Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Code(s) for the specific joint(s) involved.  When the limitation of motion is noncompensable under the appropriate Code(s), a 10 percent rating is for application for each such major joint affected by limitation of motion, to be combined, not added under Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Code 5003.

Under Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Code(s) for the specific joint(s) involved.  When the limitation of motion is noncompensable under the appropriate Code(s), a 10 percent rating is for application for each such major joint affected by limitation of motion, to be combined, not added under Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Code 5003.

Separate ratings may be assigned for separate symptoms, including for [compensable] limitations of flexion and extension, instability, and dislocation of semilunar cartilage or symptomatic removal of semilunar cartilage. VAOPGCPREC 9-2004 (September 17, 2004), 69 Fed. Reg. 59990 (2004).  

An increased rating may be assigned for up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period.  38 C.F.R. § 3.400(o)(2).  Consequently, the evaluation period for consideration here is from June 2006 (a year prior to the June 7, 2007 date of claim) to the present.

Factual Background

A December 2006 VA treatment record (for fibromyalgia) notes there was full ROM of the extremities.

An August 2007 VA treatment record notes complaints of bilateral knee pain, left greater than right.  The Veteran also reported “feeling like left knee is locking and ‘popping’ a lot.”  An October 2007 left knee MRI showed an oblique tear involving the body of the tibial articular surface of the posterior horn, present within the medial meniscus and superimposed on the medial meniscal degeneration; associated collagenous thinning of the medial femoral condyle; degenerative chondromalacia of the patellofemoral compartment predominantly at the old patella facet; tendinosis of the quadriceps and patellar tendons near their attachments of the patella; and thickened inferior plica of the femoral attachment.   

On December 2007 VA joints examination, the Veteran reported that since a prior (2002) examination she has been experiencing a “rub” causing irritation in the left knee with walking and negotiating stairs.  She reported 2-8/10 pain in the inferior aspect of the patella with walking since August 2007.  She denied prior surgery.  She reported weakness and stiffness; she denied swelling, heat, redness, instability, locking, dislocation, and recurrent subluxation.  She reported that she was attending school; she noted that she walks about a quarter mile a day with normal activities.  On examination, she had a slight limp favoring the right lower extremity.  There was no evidence of erythema, warmth, or swelling.  Pain to palpation was noted inferior to the left patella.  ROM was 0-140 degrees (full).  Instability tests were negative.  Repetitive use testing resulted in pain without weakness, fatigability, or lack of endurance.  The examiner diagnosed left knee medial meniscal tear and chondromalacia patellae.  The examiner noted that the Veteran was taking one class per semester since Spring 2006 and she had no functional limitation with regard to daily activities or in ability to attend school.   

A January 2008 VA clinical record notes complaints of left knee instability and locking.  Stability tests were normal.  A physical therapy referral was placed, and a medial unloading brace was ordered.  July 2008 left knee x-rays showed mild tricompartmental osteoarthritis.  A September 2008 clinical record notes that instability tests were negative.  ROM was full.  There was no effusion, but there was crepitus.  Strength tests were normal (5/5).  She received steroid injections in both knees.  

On January 2009 VA knee examination, the Veteran reported that her left knee disability has worsened since the prior examination.  She reported flare-ups with pain generally 7-8/10, approximately twice per month, and lasting about one week; she reported using crutches instead of her usual cane during those periods.  She denied current physical therapy and reported that the September 2008 injection did not help.  She reported that the left knee brace “helps a little.”  She also reported instability, weakness, swelling, and stiffness; the use of a grab bar in the shower; and difficulty with walking, bending, and getting in/out of a car.  On examination, ROM was 0-140 degrees (full).  Repetitive use testing increased pain, but did not result in additional functional limitation, weakness, or fatigability.  Instability tests were negative.  However, she “had a positive click and compression test.”  The diagnosis was left knee osteoarthritis.  The examiner opined that, with regard to her knees, the Veteran has functional limitations with showering, dressing, walking, bending, and getting in/out of vehicles.  

In February 2009, VA received buddy statements from G.G. and R.D. which report the Veteran has constant pain due to her back, knees, and feet disabilities; that such disabilities impact on her activities of daily living (ADLs), such as doing chores or going out shopping or to appointments; and that she uses a cane, crutches, or wheel chair to get around.

An April 2009 VA primary care record notes continued complaints of left knee pain.  The Veteran reported that she started riding a stationary bicycle (suggesting she maintained flexion to at least around 90 degrees in order to pedal). 

An October 2010 VA treatment record notes the Veteran’s report of a fall when her (unspecified) knee gave out one week prior.  On examination, knee ROM was “intact” bilaterally, and instability tests were negative bilaterally.

On February 2012 VA knee examination, left knee chondromalacia patella was diagnosed.  The Veteran reported increased knee pain, popping and clicking, and giving way.  She denied orthopedic treatment.  She endorsed flare-ups, described as “occasional with bending” that “last days” and manifest in increased pain.  Initial ROM testing showed flexion to 130 degrees (with objective evidence of painful motion at 110 degrees), and extension to 0 degrees (normal) (without objective evidence of painful motion).  Repetitive use testing showed flexion to 120 degrees and extension to 0 degrees.  The functional loss was due to less movement than normal, excess fatigability, pain on movement, and swelling.  Tenderness and pain to palpation were not noted.  Muscle strength testing was normal 5/5, joint stability testing was normal, and there was no evidence of recurrent patellar subluxation/dislocation.  There was no tibial or fibular impairment.  The examiner checked the box to indicate there were no meniscal conditions or prior meniscal surgeries.  The Veteran regularly used a brace and a cane for “improve[d] stability.”  There was not functional impairment such that no effective function remains other than that which would be equally served by an amputation with prosthesis.  The examiner opined that the Veteran’s left knee disability would limit her ability to bend, kneel, and climb.     

On April 2013 VA knee examination, left knee chondromalacia patella was diagnosed.  The Veteran reported bilateral knee pain, right greater than left, that can range from a 1/10 to 7-8/10 (precipitated by overuse with pivoting activities).  She endorsed flare-ups but denied additional functional impairment.  She denied use of assistive devices specifically for her knees; she reported using a walker or cane as needed for her back, feet, and knee discomfort.  She denied significant knee pain and stated that her knee ROM is limited secondary to “tweaking [her] back” the prior day.  The Veteran reported undergoing left knee arthroscopy in the 1990s (not during active duty service) and right knee arthroscopy twice (once in 2000 and once possibly during active duty service).  Initial ROM testing showed flexion to 80 degrees (with objective evidence of painful motion at 10 degrees), and extension to 0 degrees (normal) (without objective evidence of painful motion).  Repetitive use testing showed flexion to 80 degrees and extension to 0 degrees.  Functional loss was reported due to less movement than normal, weakened movement, excess fatigability, and pain on movement.  There was no tenderness or pain to palpation.  Muscle strength testing was normal 5/5, joint stability testing was normal, and there was no evidence of recurrent patellar subluxation/dislocation.  The Veteran reported a “shin splints” episode one year prior; no other tibia or fibula impairment was noted or reported.  The examiner checked the boxes to indicate there was no meniscal condition or prior meniscal knee surgery.  The Veteran reported that she uses a walker or cane as needed; she stated such use was not specifically for the knees, but rather for back, feet, and knee discomfort.  There was not functional impairment such that no effective function remains other than that which would be equally served by an amputation with prosthesis.  The examiner explained that the Veteran’s left and right knee ROMs are reduced on due to her back condition; she opined that the February 2012 examination report “might be a more accurate reflection of her typical range of motion.”  She opined that the left knee condition does not impact the Veteran’s ability to work.  [The examiner noted that after military service the Veteran attended college, obtained an associate degree, and worked in security until approximately 1999, when she reported a traumatic brain injury (TBI) after being hit by a semi-truck.  She also reported that she sustained a second TBI between 2002 and 2004 riding in a train that struck a truck.]  

On July 2013 orthopedic examination for SSA disability claim purposes, the Veteran reported bilateral knee pain which increased with squatting, walking, standing, and getting up and down from a chair.  She reported swelling in the knee, giving way, and occasional locking.  On examination, she used a cane; however, the orthopedic physician opined that she did not need, it as she walked “extremely well.”  ROM testing was normal.  There was no swelling, effusion, erythema, warmth, or deformity.  Strength and reflex tests were normal.  Knee x-rays were “within normal limits.”  The examining physician opined that knee pain would not limit activities, and that the Veteran “does not have a medically determinable impairment that would limit function.”  He wrote that the Veteran’s reported “symptoms are not substantiated by objective findings… There is no evidence of tenderness, warmth, or erythema.  There is no limitation of motion.”     

A February 2014 knee and lower leg conditions DBQ by a private physical therapist (received in October 2014) notes diagnoses of bilateral knee pain and osteoarthritis.  The Veteran endorsed flare-ups manifested by “impaired gait technique [and] tolerance (sic) of prolonged position as well as lower extremity balance [and] endurance deficits, contributing to limitations [with] ADL’s [and] history of falls.”  Initial ROM testing showed flexion to 80 degrees (with objective evidence of painful motion at 75 degrees), and extension to 0 degrees (normal) (without objective evidence of painful motion).  Repetitive use testing showed flexion to 85 degrees and extension to 0 degrees.  Functional loss was reported due to less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting, and standing, and/or weight-bearing.  There was tenderness or pain to palpation.  Muscle strength testing was noted as 3/5 bilaterally.  Posterior and medial-lateral instability tests were normal.  Regarding anterior instability, the examiner checked (and initialed) the boxes to indicate she was unable to test, and that there was 1+ (0-5 mm) in both knees.  There was no evidence of recurrent patellar subluxation/dislocation.  The examiner checked the box to indicate the Veteran has bilateral “shin splints” pain; there was no other noted or reported tibial or fibular impairment.  The examiner checked the boxes to indicate the Veteran’s right and left knees have meniscal tears, frequent episodes of joint “locking,” frequent episodes of joint pain, and frequent episodes of joint effusion.  She also checked the box to indicate the Veteran has had a meniscectomy in both knees, occasionally used a wheelchair, and regularly used a brace, crutches, cane, and walker; she explained that the Veteran uses wheelchair for long distances, crutches for short distances, a cane for household movement, and bilateral knee and ankle braces regularly.  There was not functional impairment such that no effective function remains other than that which would be equally served by an amputation with prosthesis.  She concluded by writing “[Veteran] does not work due to disabilities.”  [She did not identify the work-preventing disabilities, or provide rationale.]  

A July 16, 2014 knee and lower leg conditions DBQ by another private physical therapist (also received in October 2014), notes diagnoses of bilateral knee strain, bilateral knee joint osteoarthritis, left knee chondromalacia patella, and right knee meniscal tear.  The Veteran reported exacerbated pain status post motor vehicle accident in April 2014.  She endorsed flare-ups described as days when the knees “swell-up feeling like I have a bruise,” difficulty walking or bending, and that she “will sometimes use crutches.”  Initial ROM testing showed left knee flexion to 100 degrees and extension to 5 degrees.  Repetitive use testing showed flexion to 90 degrees and extension to 6 degrees due to increased pain.  Pain was noted on weight-bearing and non-weight-bearing.  There was tenderness and pain to palpation. The Veteran was slow to transfer from supine to sit, and sit to stand due to knee pain.  Functional loss was reported bilaterally due to more movement than normal, weakened movement, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, and interference with sitting and standing.  The examiner opined that during flare-ups or when the joint is used repeatedly over a period of time, left knee flexion would be 80 degrees and left knee extension would be limited at 15 degrees.  Muscle strength testing was 4/5 bilaterally; the examiner diagnosed muscle atrophy of the lower extremities due to deconditioning because of the bilateral knee disabilities.  Neither knee was ankylosed.  The examiner checked the boxes to indicate that there was no history of recurrent subluxation, but there was a history of slight lateral instability and effusion.  Anterior and posterior instability tests were normal; medial and lateral instability tests were each 1+ (0-5 mm).  The examiner checked the box to indicate the Veteran has never had recurrent patellar dislocation, “shin splints,” stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment.  She then proceeded to check the box to indicate the Veteran has bilateral “shin splints” that do not affect knee ROM.  The examiner checked the boxes to indicate the Veteran’s right and left knees have meniscal tears, frequent episodes of joint “locking,” frequent episodes of joint pain, and frequent episodes of joint effusion.  The Veteran occasionally uses a wheelchair and ankle brace, and regularly uses crutches, cane, or a walker; she explained that the Veteran uses the assistive devices for multiple disabilities including her thoracolumbar spine, bilateral knees, bilateral ankles, and bilateral feet.  There was not functional impairment such that no effective function remains other than that which would be equally served by an amputation with prosthesis.  She opined that the Veteran has “decreased full ROM” in both knees which causes difficulty bending and squatting, and manifests in decreased knee and hip flexion in the swing phase and heel strike of her gait.  She noted that bilateral knee hyperextension causes pain and decreased stability with prolonged weight-bearing.  She also reiterated the prior PT examiner’s notations regarding use of wheelchair, crutches, and cane.  

At the May 2015 Board hearing, the Veteran testified that her knee swells occasionally.  She reported that she has been prescribed knee braces, but they “kind of aggravate my patella more than they help, so I don’t use my knee braces as frequent because of that.”  As noted above, she reported taking medication including generic Vicodin, Tramadol, and Baclofen (for muscle spasms), and undergoing acupuncture for “maintenance” in place of medication.

On August 4, 2015 VA knee and lower leg conditions examination, the diagnoses were bilateral knee tendonitis, meniscal tear, and patellofemoral pain syndrome.  The Veteran reported chronic knee pain exacerbated by climbing stairs, occasional swelling, buckling, and locking.  She reported prior bilateral arthroscopic procedures for meniscal tears.  She denied having, flare-ups, but reported the knee disabilities inhibit running and climbing stairs.  Initial ROM testing showed left knee flexion to 140 degrees and extension to 0 degrees.  Repetitive use testing did not result in additional loss of function or ROM.  Pain was noted on palpation, but not with weight-bearing.  Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time.  The examiner noted that disturbance of locomotion was an additional factor contributing to disability.  Muscle strength testing was 5/5 bilaterally; there was no muscle atrophy.  Joint stability tests were normal; there was no history of recurrent subluxation, lateral instability, or recurrent effusion.  There were no “shin splints.”  The examiner checked the boxes to indicate that the Veteran had right and left meniscal repair surgeries, dates unknown.  He noted “3 faint scope scars on both knees.”  The Veteran reported regular use of knee braces for “knee pain.”  There was not functional impairment such that no effective function remains other than that which would be equally served by an amputation with prosthesis.  The examiner (a physician) opined that the Veteran’s left knee disability limits climbing stairs and inhibits running/sports activities.    

A September 2015 VA primary care record notes complaints of left knee pain (treated with lidocaine cream and brace).  Examination of the left knee showed mild swelling over the medial aspect of the joint; there was no effusion of joint line tenderness to palpation; instability tests were negative.  Sensory, strength, and deep tendon reflex tests were normal.  

A March 2016 VA primary care record notes complaints of chronic left knee pain (controlled with Vicodin and physical therapy).  The Veteran was concerned about recent weight gain, but reported that she started eating healthier and exercised as much as possible.  Examination of the left knee showed mild swelling over the medial aspect of the joint; there was no effusion of joint line tenderness to palpation; instability tests were negative.   

In a November 2016 statement, the Veteran’s representative reported that the Veteran’s left knee disability had worsened since the August 2015 examination

On October 2017 VA (fee basis) knee and lower leg conditions examination, a general practitioner physician diagnosed left knee meniscal tear and chondromalacia patella.  The Veteran reported that the condition has worsened in the “last few years.”  She used a walker to ambulate.  She endorsed flare-ups caused by overuse that manifest in difficulty bending, pivoting, and walking.  Initial ROM testing showed left knee flexion to 5 degrees and extension also to 0 degrees.  Repetitive use testing did not result in additional loss of function or ROM.  Pain was noted on flexion and extension, and with weight-bearing; there was no pain on palpation.  The examiner also found limited motion due to ankylosis and then found that there was not ankylosis.  There was full muscle strength on flexion testing.  The examiner opined that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over a period of time; he also opined that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups.  The examiner noted that additional factors contributing to disability include less movement than normal, disturbance of locomotion, and interference with standing.  Muscle strength testing was 5/5 bilaterally; there was no muscle atrophy.  Neither knee was ankylosed.  Joint stability tests were normal; there was no history of recurrent subluxation, lateral instability, or recurrent effusion.  There were no “shin splints” or any other tibial or fibular impairment.  The examiner checked the boxes to indicate the Veteran has a left knee meniscal tear with frequent episodes of joint “locking,” joint pain, and joint effusion.  The examiner wrote that the Veteran underwent a left knee arthroscopy in 1990 with residuals of pain and swelling.  He noted “no visible scars from surgery.”   The Veteran reported constant use of a wheelchair for her back, regular use of a brace for her back, knee, and ankles, constant use of crutches for her lower extremities, and constant use of a walker for her back (to reduce weight on her back).  There was not functional impairment such that no effective function remains other than that which would be equally served by an amputation with prosthesis.  The examiner opined that the Veteran’s left knee manifests in difficulty with standing and walking.   

A March 2018 rating decision granted an increased (to 30 percent) rating effective March 27, 2015, based on painful motion with flexion limited to 5 degrees.  [The AOJ assigned the March 27, 2015 effective date based on the date of receipt of a claim for TDIU.]

On December 3, 2019 VA knee and leg conditions examination, the diagnoses were left knee joint osteoarthritis and patellofemoral pain syndrome with chondromalacia patella and tendonitis status post meniscal tear.  The examiner (an orthopedic surgeon) noted that the Veteran’s history was significant for bilateral knee arthroscopies, and that treatment records since the August 2015 examination showed knee pain, activity modification, the use of non-steroidal anti-inflammatory drugs (NSAIDs), pain medications, topical analgesics, and bracing.  A September 2019 left knee MRI showed “Slight interval progression of patellofemoral cartilage loss and new fissuring of the posterior-central aspect of lateral tibial plateau.”  The Veteran reported constant pain rated 2/10, and intermittent pain up to 7/10, worse with standing, walking, pivoting, and high-impact activities.  She endorsed flare-ups, described as worsening knee pain.  She reported that during repeated use over time, she cannot climb more than one flight of stairs without severe knee pain, and that her knee will “lock out” if she climbs stairs.  Initial ROM testing showed left knee flexion to 90 degrees and extension to 15 degrees.  Repetitive use testing did not result in additional loss of function or ROM.  Pain was noted on flexion and extension, with weight-bearing, and on palpation.  The examiner opined that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over a period of time.  Although the examination was not conducted after repeated use over time or during a flare-up, the examiner opined that the Veteran experiences no additional ROM loss with repetitive use over a period of time and during flare-ups; he specifically opined that such ROM “is the same as the [ROM] noted in the initial range of motion section.”  He explained that he reached such conclusion after examining the Veteran, listening to her history and subjective complaints, and reviewing the record.  [He later explained that the ROM was consistent on active and passive testing, and with weight-bearing and non-weight-bearing.]  Muscle strength testing was 4/5 bilaterally; there was no muscle atrophy.  Neither knee was ankylosed.  Joint stability tests were normal; there was no history of recurrent subluxation, lateral instability, or recurrent effusion.  There were no “shin splints” or other tibial or fibula impairment.  The examiner checked the boxes to indicate the Veteran has bilateral knee meniscal tears, and that she had previously undergone bilateral arthroscopy.  The Veteran reported regular use of a wheelchair, brace, and crutches, and occasional use of a cane; the examiner explained that the Veteran wears bilateral knee braces and uses the wheelchair, crutches, and cane “for pain control, which provide partial but not complete relief of symptoms.”  There was not functional impairment such that no effective function remains other than that which would be equally served by an amputation with prosthesis.  The examiner opined that the Veteran’s left knee manifests in “moderate impairment in activities such as prolonged standing and walking, stair climbing, and high-impact activities.”  He specifically noted that the “current knee condition represents a progression of her service connected knee condition.”     

Analysis

The Veteran’s left knee disability has been assigned staged ratings of 10 percent prior to March 27, 2015, and 30 percent from that date, under Code 5260 (for limitation of flexion.)

Initially, the Board notes the applicability of Codes 5256, 5262, and 5263 has been considered throughout the appeal period.  However, as the evidence of record does not show that pathology or separate and distinct symptoms required for ratings under such codes (ankylosis, nonunion or malunion of the tibia or fibula, or genu recurvatum of the knee) was present during the evaluation period, those Codes do not have applicability in this matter (and will not be further discussed).  

Furthermore, the Board finds that retaining a 30 percent rating for the left knee disability under Code 5260 was inappropriate (as limitation of flexion warranting such rating is not shown), and that ratings under other applicable diagnostic codes should have been considered (and reflected on the rating codesheets), as they are more appropriate.  

The Board finds that a combined 40 percent rating is warranted for the left kee disability throughout.  As discussed below, such combined rating is based on a formulation of a 20 percent rating throughout under Codes 5258, a 10 percent rating throughout under Code 5257, and alternating (as detailed below) 10 percent (under Code 5003) and 20 percent (under Code 5261) staged ratings based on limitation of motion.   

The Board has considered the applicability of Code 5258 and finds that throughout, the Veteran’s left knee disability is reasonably shown to have been manifested by dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint.  The Board acknowledges her reports of locking throughout the appeal period (as detailed above).  The Board also notes that an October 2007 MRI showed an oblique tear involving the body of the tibial articular surface of the posterior horn, present within the medial meniscus and superimposed on the medial meniscal degeneration (competent, objective evidence of a meniscal condition), and that her left knee had a positive click and compression test on January 2009 VA examination.  Although several VA examiners (February 2012 and April 2013) found there were no meniscal conditions, left knee meniscal tear was diagnosed on December 2007, August 2015, October 2017, and December 2019 VA examinations (as well as on February 2014 and July 2014 private DBQs).  And frequent episodes of locking, joint pain, and effusion were noted on February 2014 and July 2014 private DBQs, and on October 2017 VA (fee basis) examination.  Accordingly, the Board finds that a 20 percent, but no higher, rating is warranted throughout for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint under Code 5258.  [As the record suggests she underwent left knee arthroscopy in 2000, the Board has also considered the applicability of a rating left knee meniscal symptomatology under Code 5259 (for symptomatic removal of semilunar cartilage).  However, the MRI evidence shows she has a current meniscus tear.  Furthermore, assignment of separate ratings under Codes 5258 and 5259 is prohibited by the rule against pyramiding, as the two ratings contemplate overlapping cartilage symptoms.  See 38 C.F.R. § 4.14.  As the maximum rating under Code 5259 is 10 percent, the Veteran is better served by the 20 percent rating assigned herein under Code 5258.]     

The analysis turns to consideration of Code 5257 (for recurrent subluxation or lateral instability).  The Board finds that, throughout, the Veteran’s left knee has been manifested by slight, but no greater, instability.  The Board acknowledges the Veteran’s numerous reports of left knee instability, buckling, and giving way throughout the appeal period.  Although VA examinations throughout have found no evidence of instability on examination, a February 2014 private DBQ report notes 1+ anterior instability and a July 2014 private DBQ report notes that medial and lateral instability was 1+.  The Board also notes that the Veteran was provided a medial unloading brace by a VA physician in January 2008 (upon her reports of left knee pain, instability, and locking).  On January 2009 VA knee examination, the Veteran reported that the brace “helps a little.”  [She also reported at her May 2015 hearing that she does not wear it frequently because it aggravates her patella.]  And the February 2012 VA examiner noted that the use of a brace and cane “improves stability.”  Acknowledging the CAVC’s holdings in English v. Wilkie, 30 Vet. App. 347 (2018), and Tedesco v. Wilkie, 31 Vet. App. 360 (2019), and applying the benefit of the doubt in the appeal, the Board finds that the brace was prescribed by VA, at least in part, to address the Veteran’s perceived instability.  As instability was not objectively found on December 2007, January 2009, February 2012, April 2013, August 2015, October 2017, and December 2019 examinations, the Board finds that more than slight instability is not shown at any time during the appeal period.  [No examination (VA or private) found 2+ (5-10 mm) or 3+ (10-15 mm) instability during the appeal period.]  Accordingly, the Board finds that a separate 10 percent, but no higher, rating is warranted throughout for instability of the left knee under Code 5257.

Finally, the analysis turns to the criteria for rating limitation of motion under Codes 5260 (for limitation of flexion), 5261 (for limitation of extension), and 5003 (for painful motion, but less than compensable limitations of flexion and extension).  Upon longitudinal review of the evidence, the Board finds that the Veteran’s left knee disability warrants a 10 percent rating under Code 5003 prior to July 16, 2014 (based on arthritis with painful motion); a 20 percent rating under Code 5261 from July 16, 2014 to August 4, 2015 (based on extension limited at 15 degrees (during periods of flare-up)); a 10 percent rating, again, (under Code 5003) from August 4, 2015 to December 3, 2019; and a 20 percent rating, again, (under Code 5261) from December 3, 2019.   

Prior to July 16, 2014, the Veteran’s left knee was not shown to be manifested by flexion limited to 45 degrees or less or extension limited at 10 degrees or more (to warrant a compensable rating based on limitation of flexion or extension).  Left knee flexion was to 80 degrees or more on three VA examinations, two private DBQ reports, and “normal” on SSA examination.  Extension was to 0 degrees (or normal) on three VA examinations, SSA examination, and on February 2014 private DQB.  The Board acknowledges the April 2013 VA examination report notation of objective evidence of pain at 10 degrees flexion; however, the Veteran specified that such limitation was due to tweaking her back the prior day (and thus not a probative measure of a chronic knee limitation), and the examiner explained that the February 2012 examination report is a more accurate representation of ROM.  On July 16, 2014 private DBQ, extension was noted as 5 degrees, 6 degrees on repetitive use, and an estimated 15 degrees during flare-ups.  Although the report does not specify the frequency or duration of such flare-ups/establish distinct periods when the symptoms warranted a compensable rating for limitation of extension, the Veteran had reported earlier that flare-ups occurred three times a week.  Under Code 5261, limitation of extension warrants a 20 percent rating, when it is limited at 15 degrees.  Consequently, the Board finds that a separate 20 percent rating under Code 5261 is reasonably shown from July 16, 2014 to August 4, 2015.  Examinations on that day and since up to December 3, 2019 have not found extension limited to compensable degree, and the Veteran has denied having extension-limiting flare-ups during that period.  On December 3, 2019 VA examination, the examiner found extension limited at 15 degrees, and a 20 percent rating under Code 5261 is again warranted from that date.

Compensable limitation of flexion warranting a separate rating under Code 5260 was not found on any examination other than one by a general practitioner in October 2017.  The Board finds that the findings on that examination are so inconsistent (both with all other examinations and internally) that they cannot be accepted at face value.  Significantly, no other examination during the evaluation period of record (either VA or private) found limitation of motion even limited to 60 degrees (for a 0 percent rating under Code 5260), much less to the 5 degrees that provider reported.  Furthermore, the same 0 to 5 degree finding (based on the same starting point for the testing, when flexion and extension should be measured from opposite ends of range of motion) were reported for flexion and extension (suggesting either confusion on the examiner’s part or an erroneous entry by the examiner).  The examiner also first noted that there was limitation of flexion due to ankylosis, then stated there was no ankylosis.  The examiner also noted that there was full (5/5) muscle strength for flexion (which appears facially inconsistent with the finding that there was virtually no (only 5 degrees) motion).  The Board finds that the inconsistencies noted render the examination inadequate for rating purposes, and not probative evidence in this matter.  The Board has considered whether development for a clarifying opinion is necessary, and finds it is not.  Multiple examinations prior, and subsequent, to the October 2017 examination have produced findings that establish that the findings by that examiner cannot plausibly be found to be accurate.

Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  However, the selection of diagnostic codes or applicable rating criteria is not protected and may be appropriately revised if the action does not result in the reduction of compensation payments.  See 38 C.F.R. §§ 3.951, 3.957; Butts, 5 Vet. App. 532.  As this decision increases (and does not reduce) the ratings assigned, and the reason for the changes in the diagnostic codes are explained in detail above, the regulatory and Caselaw guidance regarding change of diagnosis has not been violated.        

Under 38 C.F.R. § 4.25 combination of the various ratings under various Codes assigned for the separate periods during the period for consideration results in the ultimate finding that a 40 percent combined rating for the left knee disability is warranted throughout.   

REASONS FOR REMAND

3. Entitlement to a TDIU rating prior to June 30, 2015

As noted above, the parties agreed in the April 2019 JMPR that the matter of a TDIU remained on appeal considering the pending NODs in the instant claims for increase.  And an August 2020 rating decision granted a TDIU rating effective June 30, 2015.  Therefore, what remains for consideration is whether a TDIU rating is warranted prior to that date.  Harper v. Wilkie, 30 Vet. App. 356 (2018).

Further development of pertinent evidence is needed with respect to this claim.  On June 30, 2015, the Veteran submitted a VA Form 21-8940.  She reported that she has three years of college education, and that she began community college courses in 2002; she wrote “N/A” for the completion date.  A December 2007 VA examination report had noted she was attending one college class per semester.  An August 2010 VA treatment record notes, “For the past 2 years, she attempted to go back to school using her SSDI and VA disability.”  A January 2011 VA treatment record notes that she was attending community college, majoring in photography.  She subsequently (in June 2017) submitted a copy of her community college student identification card, suggesting that she was then attending college.  Furthermore, SSA discontinued her SSA disability benefits effective December 2013, based upon a finding of improvement in her (nonservice-connected) TBI/cognitive functioning.  The SSA judge found the Veteran “has made wildly inconsistent statements regarding matters relevant to the issue of disability” and that she “no longer has an impairment or combination of impairments that significantly limits her ability to perform basic work activities.”  See September 25, 2015 SSA Decision.]  

Based upon the conflicting reports noted above, the Veteran’s unclear educational history (and thereby, to an extent, her ability to maintain substantially gainful employment consistent with her work experience and education) remains unclear.  Clarification is needed for proper adjudication of the TDIU claim.  Remand for a complete, correct, and updated education history (and any further follow-up development indicated) is necessary.

The Board’s decision above also granted an increased rating for left knee disability.  Accordingly, the posture of the TDIU claim is changed, and due process requires that the AOJ be afforded initial opportunity to consider the TDIU claim considering the changed posture (as clarified by an updated VA Form 21-8940).  

The matter is REMANDED for the following:

1. Send the Veteran a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and ask her to complete the form fully and accurately, with the information sought updated to the present (particularly education history), and submit it.  She should be advised that the information therein is critical to proper adjudication of her TDIU claim.

2. When the development requested above is completed, review the record, arrange for any further development indicated (e.g., to reconcile any inconsistencies, by contacting employers/colleges identified, if necessary, and regarding the impact of service connected disabilities on employability prior to June 30, 2915) before readjudicating the claim for entitlement to a TDIU rating prior to June 30, 2015.

 

 

GEORGE R. SENYK

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Dupont, 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.