Citation Nr: 21005252 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 14-26 364 DATE: January 29, 2021 ORDER Entitlement to a rating in excess of 20 percent for a lumbar strain is denied. Entitlement to a separate 10 percent rating, but no higher, for right lower extremity radiculopathy is granted. Entitlement to a rating in excess of 10 percent for a right knee strain is denied. Entitlement to a separate 10 percent rating, but no higher, for right knee instability is granted. REMANDED Entitlement to a compensable rating for left ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s lumbar strain was not manifested by ankylosis, whether favorable or unfavorable, of the entire spine or thoracolumbar spine, or forward flexion of the thoracolumbar spine to 30 degrees or less. 2. The Veteran’s right lower extremity radiculopathy is manifested by mild incomplete paralysis. 3. The Veteran’s right knee strain is manifested by limitation of motion to no less than 120 degrees, with pain on movement. 4. The Veteran’s right knee instability is manifested by slight lateral instability. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 20 percent for a lumbar strain have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for a separate rating of 10 percent, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.124a, Diagnostic Code 8520. 3. The criteria for an evaluation greater than 10 percent for a right knee strain have not been met. 38 U.S.C. § § 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 4. The criteria for a separate rating of 10 percent, but no higher, for right knee instability have been met. 38 U.S.C. § § 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1996 to August 2000. The Veteran appealed August 2013 and June 2014 rating decisions by the Agency of Original Jurisdiction (AOJ). In June 2016, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claim to the AOJ for further action consistent with the Board’s remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives as to the issues regarding the back and right knee. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. For disabilities evaluated based on limitation of motion, the Department of Veterans Affairs (VA) is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Board notes that 38 C.F.R. § 4.59, entitled “Painful motion,” states, in pertinent part, “The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). When painful motion is present the minimum compensable rating for the joint should be assigned. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). 1. Back VA rated the Veteran’s lumbar condition under 38 C.F.R. § 4.71a, Diagnostic Code 5237. All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. If the Veteran has Intervertebral Disc Syndrome (IVDS), the Veteran may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Ultimately, the Veteran’s disability rating will depend on which diagnostic code results in the higher evaluation. Here, the Veteran does not have IVDS. Therefore, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not applicable. The pertinent criteria under the General Rating Formula for Diseases and Injuries of the Spine are as follows: Unfavorable ankylosis of the entire spine - 100 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine - 50 percent disabling. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine - 40 percent disabling. Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine - 30 percent disabling. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis - 20 percent disabling. Importantly, VA is to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5235 to 5237, Note (1). Here, the Veteran does not have objective neurologic abnormalities that rise to compensable levels. The Veteran’s service-connected back condition has associated radiculopathy; the Board will address that rating in a separate section below. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5235 to 5237, Note (2). The July 2013 VA examination report noted intense back pain, increased tightness, impact on prolonged standing and poor sitting posture, forward flexion to 80 degrees, and painful motion at 70 degrees. The October 2020 VA examination report noted muscle spasms, impact on standing, walking, and bending, no flare-ups, and forward flexion to 75 degrees. The evidence above notes forward flexion no less than 70 degrees and the Veteran has not been found to have ankylosis. This is congruent with a rating of 20 percent. The Veteran has not been found to require consistent use of an assistive device. Although the Veteran’s back condition impacts his ability to walk, sit, stand, lift, and bend, the range of motion measurements during the appellate period are greater than 30 degrees. The Veteran contends his back condition has worsened and warrants a higher rating, but the evidence of record during the appellate period does not amount to the criteria required for a higher rating. Overall, the evidence does not demonstration limitation of motion to 30 degrees or less, or the existence of ankylosis. Thus, the Veteran is not entitled to an increased rating for his back condition of 30 percent or higher. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Board has also considered whether higher ratings are warranted on the basis of functional loss due to pain, weakness, fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2018). Although the evidence does show that the Veteran may experience painful motion, it does not result in a higher rating unless it results in additional functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). The Board finds the evidence of record more closely approximates the criteria for a 20 percent rating for the entire period on appeal. A higher rating is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Radiculopathy When talking about his back condition, the Veteran stated he has numbness and tingling in the glutes and hips, and radiculopathy in the legs. See July 2014 Veteran statement. The Veteran emphasized his right side. Id. The October 2020 VA examination report noted right glute numbness. August 2014 VA treatment records regarding the back noted right buttock and thigh numbness which impacts his sleep. Right lower extremity radiculopathy is evaluated under Diagnostic Code 8520. Mild incomplete paralysis warrants a 10 percent disability rating, moderate incomplete paralysis warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent disability rating, and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating. An 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Descriptive words such as “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. 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. Based on the evidence, the Board finds that the Veteran is entitled to a separate disability rating of 10 percent throughout the appellate period for his right lower extremity radiculopathy symptoms. The Veteran suffers from numbness and tingling in his right lower extremity which impacts his sleep. Nevertheless, there is insufficient evidence to show the Veteran has incomplete, moderate, moderately severe, or complete paralysis. VA examination reports note normal muscle strength and no muscle atrophy. There is insufficient evidence to suggest the Veteran had paresthesias, dysesthesias. Additionally, the tingling and numbness is not noted to be constant. Thus, the Board finds that the criteria for a separate disability rating of 10 percent, but no higher, throughout the appellate period for right lower extremity radiculopathy are met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 2. Right Knee The right knee is currently rated as 10 percent disabled under Code 5260 based on a finding of painful motion under 38 C.F.R. § 4.59. However, multiple codes are potentially applicable to the knee, and the law permits simultaneous rating under various codes, so long as prohibited pyramiding is avoided. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98; 38 C.F.R. § 4.14. Knee disabilities are rated under Codes 5256 through 5263 of 38 C.F.R. § 4.71a. Code 5256 addresses ankylosis of the knee. Code 5257 addresses recurrent subluxation or lateral instability. Code 5258 addresses dislocated semilunar cartilage in the knee manifested by frequent episodes of “locking,” pain, and effusion into the joint. Code 5259 addresses symptomatic residuals related to removal of semilunar cartilage. As noted, Code 5260 addresses limitation of motion on flexion, while Code 5261 addresses limitation of motion on extension. Code 5262 addresses impairment of the tibia and fibula from malunion or nonunion. Code 5263 addresses genu recurvatum. 38 C.F.R. § 4.71a. A. Limitation of Motion Code 5260 provides ratings for limitation of flexion with the following ratings assigned: 0 percent for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and 30 percent for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Code 5260. Similarly, Code 5261 provides ratings for limitation of extension with the following ratings assigned: 10 percent for limitation of extension to 10 degrees, 20 percent for limitation of extension to 15 degrees, 30 percent for limitation of extension to 20 degrees, 40 percent for limitation of extension to 30 degrees, and 50 percent for limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, Code 5261. Normal knee flexion is to 140 degrees, and normal knee extension is to 0 degrees. See 38 C.F.R. § 4.71, Plate II. The July 2013 VA examination report noted flare-ups make it difficult to run and go up inclines and steps, flexion to 120 degrees, painful motion at 110 degrees, and extension at 0 degrees. The October 2020 VA examination report noted flexion to 130 degrees, extension to 0 degrees, no flare-ups, and flexion to 125 degrees after repetitive use. The Veteran’s right knee condition is rated as 10 percent disabling under Code 5260 for limitation of flexion due to painful motion under 38 C.F.R. § 4.59. This recognizes that the degree of limitation of motion is not compensable, but the painful motion did cause functional impairment and therefore requires compensation. Saunders v. Wilkie, 886 F. 3d (Fed. Cir. 2018). The measured range of motion remains noncompensable, and therefore no increased rating may be assigned under Code 5260. The Board has considered whether an additional rating might be assigned under Code 5261, for limitation of extension, or limitation of function in extension due to pain. However, as extension is measured as full and complete, even after extended use, the Board finds that the reported symptomatology—painful motion—is already compensated under Code 5260. No limitation of motion meeting the criteria for increased rating is shown by competent lay or medical evidence, and hence an increased rating is not warranted. B. Instability The Veteran stated that his right knee is unstable and causes it to give out and him to almost fall down. See August 2012 Veteran statement. The October 2020 VA examiner noted the Veteran’s right knee gives out at times. Code 5257 provides ratings for other knee impairments with the following ratings assigned: 10 percent for slight, 20 percent for moderate, and 30 percent for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257. The words “slight,” “moderate,” and “severe” as used in the various Codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Based on the evidence, the Board finds that the Veteran is entitled to a separate disability rating of 10 percent throughout the appellate period for his right knee instability. The Veteran’s right knee gives out at times. Nevertheless, there is insufficient evidence to show the Veteran warrants a higher rating. Treatment records do not note frequent falling and the Veteran has not provided specific details about his unstable right knee or falling. Thus, the Board finds that the criteria for a separate disability rating of 10 percent, but no higher, throughout the appellate period for right knee instability are met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 C. Other Codes The evidentiary record does not suggest impairment of the tibia and fibula, impairment or removal of the semilunar cartilage, genu recurvatum, or ankylosis of the right knee. As such, disability ratings under Codes 5256, 5258, 5259, 5262, and 5263 are not warranted. REASONS FOR REMAND Overall, the Veteran seeks a higher rating for his service-connected left ear hearing loss and stated that it has increased in severity. See August 2012 Veteran statement. However, the November 2020 VA examiner was unable to measure the Veteran’s hearing thresholds. The November 2020 VA examiner did not provide a detailed reason for not being able to do so. This is despite noting the Veteran’s left ear speech discrimination score was 40 percent and that this score was appropriate for the Veteran. There is not another audiological evaluation of record during the appellate period. Overall, the Board is unable to properly determine the current severity of the Veteran’s left ear hearing loss. Therefore, remand is required for a new VA examination. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for his service-connected left ear hearing loss that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Schedule the Veteran for an examination to determine the current severity of his service-connected left ear hearing loss. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. 3. After the above development has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.