Citation Nr: 21061737 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-03 881 DATE: October 5, 2021 ORDER An increased disability rating of 20 percent, and no higher, for the service-connected back disability from September 1, 2015 to April 15, 2021 is granted. An increased disability rating higher than 20 percent for the service-connected back disability from April 15, 2021, forward, is denied. An increased disability rating higher than 10 percent for the service-connected left knee disability, for the entire rating period from September 1, 2015, is denied. A separate 10 percent disability rating, and no higher, for left knee instability, for the entire rating period from September 1, 2015, is granted. FINDINGS OF FACT 1. For the entire rating period from September 1, 2015, the back disability was manifested by thoracolumbar forward flexion limited to 45 degrees during flare-ups, a combined range of motion of 125 degrees, and pain resulting in abnormal gait. 2. For the entire rating period from September 1, 2015, the left knee disability was manifested by left knee range of motion from 0 degrees in extension to 110 degrees in flexion or greater, including after consideration of functional loss due to repetitive use over time and during flare-ups. 3. For the entire rating period from September 1, 2015, the left knee disability is manifested by no more than slight lateral instability with subjective reports of instability, but no instability shown on objective testing. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an increased disability rating of 20 percent, and no higher, for the service-connected back disability have been met from September 1, 2015 to April 15, 2021. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for an increased disability rating of 20 percent for the service-connected back disability have not been met or approximated from April 15, 2021, forward. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. 3. The criteria for an increased disability rating higher than 10 percent for the service-connected left knee disability are not met or approximated for any period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5003. 4. Resolving reasonable doubt in the Veteran's favor, the criteria for a separate 10 percent disability rating, and no higher, for left knee instability are met for the entire rating period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from December 2000 to June 2003. This matter is on appeal from a December 2015 rating decision. The procedural history as detailed in the March 2021 Board decision are incorporated herein by reference. In March 2021, the Board remanded the issues on appeal for VA examinations for the left knee and back disabilities and directed the VA examiner to address reports of left knee instability and buckling and the nature of in-service back injuries and before post-service accidents. In April 2021, the Veteran was provided with VA back and knee examinations. The April 2021 VA examiner adequately addressed reports of left knee instability and buckling, as well as the nature of in-service back injuries and their relationship to current back symptoms. For these reasons, the Board finds that there was compliance with the prior remand directives. Disability Rating Legal Authority Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 1. An increased rating of 20 percent for the service-connected back disability from September 1, 2015 to April 15, 2021 is granted. 2. An increased rating higher than 20 percent for the service-connected back disability from April 15, 2021, forward, is denied. The service-connected back disability is rated at 10 percent from September 1, 2015 to April 15, 2021, and at 20 percent thereafter, under the criteria at 38 C.F.R. § 4.71a, DC 5237 for lumbosacral strain. Under the rating schedule, lumbosacral strain is to be rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is provided for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is provided for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is provided for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is 0 to 30 degrees; left and right lateral flexion and rotation are zero to 30 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 combined range of motion of the thoracolumbar spine is 240 degrees. 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, General Rating Formula for Diseases and Injuries of the Spine, Note 2. After review of the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the criteria for an increased rating of 20 percent for the back disability have been met from September 1, 2015 to April 15, 2021. At the October 2017 VA examination, the back disability was manifested by forward flexion limited to 70 degrees, a combined range of motion of 150 degrees, and muscle spasm and guarding not resulting in lumbar flattening and abnormal gait, which is consistent with the 10 percent rating criteria under General Rating Formula for spine disabilities; however, no thoracolumbar range of motion testing for pain was performed on passive motion, in weight-bearing, and in non-weight-bearing, and no explanation was provided as to why such range of motion testing was not accomplished. The October 2015 VA examination includes no range of motion findings for the back. For these reasons, the October 2015 and October 2017 VA examination reports are inadequate for rating purposes; thus, the only adequate VA examination report during the rating period is the one performed on April 15, 2021. At the April 2021 VA examination, the back disability was manifested by thoracolumbar forward flexion limited to 45 degrees during flare-ups as estimated based on information procured from relevant sources including lay statements of the Veteran, a combined range of motion of 125 degrees. Although the April 2021 VA examiner noted that there was back pain not resulting in abnormal gait or abnormal spinal contour, a July 2016 VA treatment record shows an antalgic gait related to the back disability. Because forward flexion limited to 45 degrees is a measured limitation of motion specifically contemplated by the 20 percent rating criteria, the Board resolves reasonable doubt in the Veteran's favor to find that a 20 percent rating under DC 5237 for the back disability for the entire rating period from September 1, 2015 to April 15, 2021 is warranted. An increased rating higher than 20 percent under DC 5237 for the back disability is not warranted for any period because the evidence shows no forward flexion of the thoracolumbar spine limited to 30 degrees or less, and no favorable ankylosis of the entire thoracolumbar spine. 3. An increased disability rating higher than 10 percent for the left knee disability for the entire rating period is denied. 4. A separate disability rating of 10 percent for left knee instability for the entire rating period is granted. For the entire increased rating period from September 1, 2015, the service-connected left knee disability is rated at 10 percent under the criteria at 38 C.F.R. § 4.71a, DC 5003 for degenerative arthritis. Although the assigned DC was 5260, the use of DC 5260 was an incorrect designation because the left knee disability did not actually manifest to a compensable (to 10 percent) degree of limitation of knee flexion. The 10 percent rating was assigned based on findings of pain and noncompensable limitation of motion, which is the substantive criteria for a 10 percent rating for arthritis of a major painful joint under DC 5003. Under DC 5003, degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 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. DC 5260 provides for a 0 percent rating when there is flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. DC 5261 provides for assignment of a 0 percent rating for extension limited to 5 degrees. A 10 percent rating for extension limited to 10 degrees. A 20 percent rating for extension limited to 15 degrees. A 30 percent rating for extension limited to 20 degrees. A 40 percent rating for extension limited to 30 degrees, and a 50 percent rating for extension limited to 45 degrees. 38 C.F.R. § 4.71a. Normal range of motion for the knee is from 140 degrees flexion to 0 degrees extension. 38 C.F.R. § 4.71, Plate II. After review of all the lay and medical evidence of record, the Board finds that the evidence weighs against finding that the criteria for an increased rating higher than 10 percent under DC 5003 for the left knee disability are met or approximated for any period. Throughout the increased rating period, the left knee disability was manifested by left knee range of motion from 0 degrees in extension to 110 degrees in flexion or greater, including after consideration of functional loss due to repetitive use over time and during flare-ups. Because the left knee disability was manifested by painful motion with limitation of forward flexion to a noncompensable degree under DC 5260, including after consideration of orthopedic limiting factors (38 C.F.R. §§ 4.40, 4.45, 4.59, Deluca), an increased rating higher than 10 percent under DC 5003 for the left knee disability is not warranted for any period. Additionally, because left knee extension is normal (i.e., to 0 degrees), there is no limitation of left knee extension to a compensable (10 percent) degree; therefore, a separate rating under DC 5261 for limitation of left knee extension is not warranted in this case (separate from a rating under DC 5260). See VAOPGCPREC 9-2004. The Board next finds that the evidence is in equipoise on the question of whether the criteria for a separate 10 percent rating under DC 5257 for other impairment of the knee are met for the entire rating period. DC 5257 provides for a 10 percent rating when there is evidence of slight impairment of the knee manifested by recurrent subluxation or lateral instability, a 20 percent rating for moderate impairment of the knee manifested by recurrent subluxation or lateral instability, and a 30 percent rating for severe impairment of the knee manifested by recurrent subluxation or lateral instability. 38 U.S.C. § 4.71a. Pursuant to the Board's remand directives, the April 2021 VA examiner considered the Veteran's account of left knee instability and buckling, as well as his report of pain, swelling, inability to stand more than ten minutes due to pain, and difficulty walking up stairs. The April 2021 VA examiner did not diagnose left knee instability on the basis that no instability was demonstrated on examination; however, the April 2021 VA examiner also noted that subjective reports of instability may be contributed to a loss of fascia and musculature in the left thigh, which caused the feeling of instability upon ambulation. The Veteran's competent report of left knee instability is sufficient evidence of lateral instability. See English v. Wilkie, 30 Vet. App. 347 (2018). Although the VA examinations performed in October 2015, October 2017, and April 2021 showed normal joint stability during objective testing, the April 2021 VA examiner acknowledged the Veteran's subjective reports of left knee instability and attributed the feeling of instability upon ambulation to a loss of fascia and musculature of the left thigh. In consideration of the foregoing, and given the history of normal joint stability testing, the Board finds that the left knee disability is manifested by no more than slight lateral instability; therefore, resolving reasonable doubt in favor of the Veteran, a separate rating of 10 percent for slight lateral instability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Board will next consider whether a higher or separate rating is warranted under other potentially applicable DCs used for rating knee disabilities. DC 5256 allows for higher potential ratings (with a maximum 60 percent rating) for ankylosis. The evidence shows no left knee ankylosis; therefore, DC 5256 does not apply. Also, the evidence shows no genu recurvatum, and the maximum disability rating under DC 5263 is 10 percent; therefore, a separate or higher rating under DC 5263 for genu recurvatum is not warranted. Under DC 5258, a maximum 20 percent rating is prescribed for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a. While the left knee disability has been manifested by painful motion and swelling (effusion) into the joint, it has not been manifested by dislocation of the meniscus (semilunar cartilage) or locking. The Veteran has not been diagnosed with a meniscus (semilunar cartilage) condition. The functional impairment caused by the pain on movement and swelling are factors already contemplated by the 10 percent rating currently assigned under DC 5003. See 38 C.F.R. §§ 4.40, 4.45, 4.59. Because the weight of the evidence reflects that the left knee disability does not involve a meniscus tear or dislocation of the semilunar cartilage, and the rating criteria under DC 5003 encompass the other left knee symptomatology of painful motion, swelling, and buckling (including by incorporation of rating principles at 38 C.F.R. §§ 4.40, 4.45, 4.59), the Board finds that a separate or alternate rating under DC 5258 is not warranted for any period. Under DC 5259, a maximum 10 percent rating is prescribed for removal of symptomatic semilunar cartilage. 38 C.F.R. § 4.71a. In this case, a higher rating is not warranted under DC 5259 because the evidence in this case shows no removal of symptomatic semilunar cartilage for the left knee; therefore, DC 5259 is not applicable. The Board finds that neither the Veteran nor the record has raised the issue of an extraschedular rating for the increase rating appeals. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Palmer, 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.