Citation Nr: 21062220 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 15-45 846 DATE: October 6, 2021 ORDER Entitlement to a 40 percent rating, but no higher, for degenerative disk disease of the lumbar spine (back disability) is granted from July 28, 2010 to July 24, 2020. Entitlement to a rating in excess of 40 percent for back disability from July 24, 2020 is denied. Entitlement to a rating in excess 10 percent for left patellofemoral pain syndrome (left knee disability) is denied. Entitlement to a rating in excess 10 percent for right patellofemoral pain syndrome (right knee disability) based on limitation of motion is denied. Entitlement to a separate 10 percent rating, but no higher, for right knee instability is granted from July 28, 2010. FINDINGS OF FACT 1. From July 28, 2010 to July 24, 2020, when considering pain, flare-ups, and corresponding functional impairment, the Veteran's back disability has more nearly approximated forward flexion to 20 degrees. 2. The Veteran's back disability has not been manifested by ankylosis or incapacitating episodes of intervertebral disc syndrome (IVDS) at any point during the appeal period. 3. The Veteran's left knee disability has been manifested by painful flexion but noncompensable limitation of motion throughout the appeal period. 4. The Veteran's right knee disability has been manifested by painful flexion but noncompensable limitation of motion and no more than slight instability throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 40 percent rating, but no higher, for back disability are met from July 28, 2010 to July 24, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for entitlement to a rating in excess of 40 percent for back disability from July 24, 2020 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5242. 3. The criteria for entitlement to a rating in excess of 10 percent for left knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5260. 4. The criteria for entitlement to a rating in excess of 10 percent for right knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5260. 5. The criteria for entitlement to a separate 10 percent rating, but no higher, for right knee instability are met from July 28, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5257 (as in effect prior to February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1999 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board remanded the claims for further development in March 2019 and March 2021. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020). VA's General Counsel held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Thus, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. As a preliminary matter, the Board notes that although the Veteran presented for VA examinations in November 2010, January 2015, and December 2017, the most recent July 2020 VA examination is the only examination that is compliant with the requirements set forth by Correia v. McDonald, 28 Vet. App. 158 (2016) and only the May 2021 VA opinion is compliant with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Accordingly, only the July 2020 VA examination report and May 2021 VA opinion will be utilized for evaluation of the Veteran's back and knee disabilities based on range of motion. In this regard, the Board emphasizes that the prior non-compliant examinations show range of motion findings similar or less favorable to the Veteran than those in the July 2020 VA examination report and May 2021 VA opinion. Thus, there is no prejudice to the Veteran in not considering the prior examination reports to rate his disabilities based on limitation of motion and DeLuca factors. The current appeal period before the Board begins on July 28, 2010, the date VA received the Veteran's increased rating claim, plus the one-year "look back" period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). 1. Entitlement to a 40 percent rating, but no higher, for back disability is granted from July 28, 2010 to July 24, 2020. 2. Entitlement to a rating in excess of 40 percent for back disability from July 24, 2020 is denied. The Veteran's back disability is evaluated pursuant to DC 5242, which is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Pursuant to that formula, as relevant here, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. The Board notes that the General Rating Formula rating criteria was not affected by the February 7, 2021 amendments. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. Id., Note (1). Unfavorable ankylosis is defined by VA regulation as a condition in which the spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure on the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Id., Note (5). Fixation in the neutral position of zero degrees always represents favorable ankylosis. Id. By way of background, a September 2004 rating decision awarded service connection for a back disability and assigned a 10 percent rating, effective July 20, 2004. The rating was increased to 20 percent, effective January 23, 2015, and to 40 percent, effective July 24, 2020. See November 2015 and June 2021 rating decisions. The period on appeal is from the Veteran's July 28, 2010 increased claim, plus the one-year lookback period. At the July 2020 VA examination, the Veteran endorsed dull low back pain that was worse in the morning. Physical examination revealed forward flexion to 40 degrees with no additional loss of motion upon repetition. Objective evidence of localized tenderness or pain on palpation of the joint was noted but there was no indication of guarding, muscle spasms, muscle atrophy, or ankylosis. In a May 2021 VA opinion, the examiner indicated that pain would additionally limit the Veteran's lumbar range of motion to 30 degrees of forward flexion with repetitive use over time and to 20 degrees of forward flexion during a flare-up, after review and consideration of the symptoms described by the Veteran during the appeal. Here, when considering the competent and credible reports of limited lumbar spine motion and pain during flare-ups, coupled with the May 2021 examiner's assessment of additional decrease in mobility of forward flexion to 20 degrees due to painful flare-ups, a 40 percent rating is warranted throughout the appeal period beginning July 28, 2010. There is no pertinent evidence demonstrating an ascertainable increase in disability to allow for assignment of the 40 percent rating within the one-year look-back period. A rating in excess of 40 percent is not warranted at any point during the appeal period, as the Veteran does not assert that he has ankylosis of the thoracolumbar spine, even when considering flare-ups and repetitive use, and the evidence does not indicate otherwise. See November 2010, January 2015, December 2017, and July 2020 VA examination reports. Therefore, because there is no evidence of ankylosis, a rating higher than 40 percent is precluded. Additionally, the Board has considered whether evaluating the Veteran's back disability under the Formula for Rating IVDS (IVDS Formula) would be more beneficial to him. However, there is no evidence of record of IVDS or any incapacitating episodes as contemplated within the applicable rating criteria, let alone 6 weeks over a period of 12 months of such episodes, to allow for assignment of a 60 percent rating. See 38 C.F.R. § 4.71a, IVDS Formula, Note (1). While an April 2013 VA treatment record shows the Veteran was on bed rest at the emergency department while waiting for his pain prescription refill request, he was discharged in less than 2 hours. Furthermore, the Veteran testified that he had incapacitating episodes "every day," stating that by the end of the day he "tend[s] to go immediately back home and all [he] want[s] to do is just sleep." See Board Hearing Transcript (Tr.) at 5. He also reported incapacitating episodes due to flare-ups "about two to three times during the year" since 2006. Id at 7. Despite the Veteran's reports, the record does not demonstrate that his back disability required bed rest prescribed by a physician, as mandated by the rating criteria noted above. Thus, an increased rating is not available under the IVDS Formula. As a final matter, the Board notes that the record does not demonstrate any neurological manifestations associated with the Veteran's back disability. In this regard, VA examination reports reflect that muscle strength, reflex, sensory, and straight leg raise testing were normal, except one time in 2017 straight leg testing was positive in the right leg. See November 2010, January 2015, December 2017, and July 2020 VA examination reports. Moreover, the Veteran denied any radicular pain, numbness, paresthesia or other signs or symptoms due to radiculopathy at each VA examination and no other neurologic abnormalities or findings were noted. Id. As a preponderance of the competent evidence indicates no neurological manifestations associated with the Veteran's back disability, a separate neurological rating is not warranted. 3. Entitlement to a rating in excess 10 percent for left knee disability is denied. 4. Entitlement to a rating in excess 10 percent for right knee disability is denied. 5. Entitlement to a separate 10 percent rating, but no higher, for right knee instability is granted from July 28, 2010. The Veteran's bilateral knee disability is rated pursuant to DC 5260. Under DC 5260, a 10 percent rating is assigned for flexion limited to 45 degrees, a 20 percent rating is assigned for flexion limited to 30 degrees, and a maximum 30 percent rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Also, under DC 5261, a 10 percent rating is warranted for limitation of extension to 10 degrees, with higher ratings available for more severe limitation. 38 C.F.R. § 4.71a, DC 5261. The Board notes that the rating criteria for DCs 5260 and 5261 were not affected by the February 7, 2021 amendments. By way of background, a September 2004 rating decision awarded service connection for a bilateral knee disability and assigned separate10 percent ratings, effective July 20, 2004. On VA examination in July 2020, the Veteran endorsed sharp bilateral knee pain that prevented him from running. Physical examination showed bilateral knee flexion to 90 degrees and extension to zero degrees, with pain on flexion but no additional loss of motion upon repetition in either knee. The examiner noted bilateral anterior knee tenderness and pain to palpation. Muscle strength and joint stability testing were normal bilaterally and there was no evidence of muscle atrophy, ankylosis, recurrent subluxation or effusion, or lateral instability. In a May 2021 VA opinion, the examiner indicated that pain would additionally limit the Veteran's knee range of motion, noting flexion would be limited to 80 degrees and extension to zero degrees bilaterally after repetitive use over time, whereas flexion would be limited to 70 degrees and extension to zero degrees bilaterally during a flare-up, after review and consideration of the symptoms described by the Veteran during the appeal. The Board finds that, when considering DeLuca factors, the Veteran's left and right knee disabilities have been productive of painful flexion, but noncompensable limitation of motion, thereby precluding ratings in excess of 10 percent under DC 5260 or a separate rating under DC 5261. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202; VAOPGCPREC 9-2004. Indeed, the May 2021 VA opinion shows bilateral knee flexion limited to no less than 70 degrees during a flare-up and 80 degrees following repetitive motion, and there is no evidence of painful extension. Therefore, a rating higher than 10 percent is not warranted for either knee at any point during the appeal period. However, the Board finds that a separate 10 percent rating is warranted for the right knee under former DC 5257, effective May 13, 2014. As the old rating criteria for DC 5257 is more favorable to the Veteran, only that version will be considered herein. DC 5257 evaluates recurrent subluxation or lateral instability of a knee, and provides a 10 percent rating for slight impairment, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, DC 5257. In this regard, the record shows the Veteran's use of a right knee brace for stability, as well as a cane. See May 2014 (reports right knee buckled a few times and requests a knee brace); October 2014 (knee brace is helpful but interested in a stronger one); and April 2019 (requests a brace for right knee) VA treatment records; January 2015 VA examination report (constant use of a cane). While objective knee joint stability testing was normal, based on evidence reflective of right knee instability and the Veteran's intermittent use of a right knee brace during the appeal, the Board finds that the record supports a finding of slight instability of the right knee so as to warrant a 10 percent rating under former DC 5257 from July 28, 2010. A higher rating is not warranted, as the Board finds that a "moderate" or "severe" instability rating would necessitate objective evidence of instability on physical examination. Here, there is no objective evidence of knee joint instability shown in the contemporaneous examination reports and treatment records, and thus his right knee instability does not more closely approximate moderate or severe instability under DC 5257. Additionally, the Board has considered whether higher or separate ratings are warranted under alternate diagnostic codes. However, there is no indication of ankylosis, dislocation or removal of semilunar cartilage, tibia and fibula impairment, or genu recurvatum in either knee during the appeal period. See November 2010, January 2015, and July 2020 VA examination reports. As such, ratings under DCs 5256, 5258, 5259, 5262, and 5263 are precluded. Furthermore, there is no evidence of left knee instability and the Veteran does not assert otherwise, as he reported symptoms of instability with regards to his right knee only. See Board Hearing Tr. 9. Therefore, a separate rating for left knee instability under DC 5257 is not warranted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.