Citation Nr: 21063783 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-43 170 DATE: October 15, 2021 ORDER An initial rating higher than 10 percent for a right knee disability is denied. A separate 10 percent rating for right knee instability is granted. An initial rating higher than 10 percent for a lumbar spine disability is denied. REMANDED An initial compensable rating for lichen planus chronicus, from April 13, 2005 to January 21, 2014, is remanded. A rating higher than 30 percent for lichen planus chronicus, from January 22, 2014, is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's right knee disability causes painful motion, but it does not limit flexion to 30 degrees or limit extension to 15 degrees. 2. The Veteran's right knee disability also causes no more than slight instability. 3. The Veteran's lumbar spine disability causes painful motion, but it does not limit forward flexion to 60 degrees, limit combined range of motion to 120 degrees, or result in muscle spasm or guarding severe enough to cause abnormal gait or spinal contour. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260-5261. 2. The criteria for a separate 10 percent rating, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 3. The criteria for an initial rating higher than 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1964 to June 1970. In July 2019, the Board of Veterans' Appeals (Board) remanded his increased rating claims to the agency of original jurisdiction (AOJ) for additional development. As explained below, the AOJ substantially complied with the Board's remand instructions, except with respect to the lichen planus chronicus increased rating claim. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board recognizes that the Veteran "contends that the AOJ assigned the wrong effective dates for the grant of service connection for the disabilities associated with this appeal." See April 2021 Post-Remand Brief. However, the Board already decided his earlier effective date claims in its July 2019 decision. The earlier effective date claims are no longer on appeal here. Increased Ratings The Veteran seeks increased initial ratings for service-connected right knee and lumbar spine disabilities. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. VA must evaluate all of the evidence so that its decisions are equitable and just. 38 C.F.R. § 4.6. Where there is a question as to which of two evaluations shall be applied, a higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, VA must consider functional loss caused by pain or other factors that could occur during flare-ups or after repeated use which may not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.45, VA must also consider less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Under 38 C.F.R. § 4.59, painful motion associated with joint or periarticular pathology typically warrants at least the minimum compensable rating for the affected joint. Id. at 36; see also Burton v. Shinseki, 25 Vet. App. 1 (2011). During the course of this appeal, VA amended the rating criteria for evaluating musculoskeletal disabilities, effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). These amendments revised certain diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by the effective date of the amendment. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Id. Therefore, where applicable, the Board will consider the Veteran's claims 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. 1. An initial rating higher than 10 percent for a right knee disability The AOJ assigned the Veteran a 10 percent rating for painful motion of the right knee. This is the minimum compensable rating for the knee, as provided by 38 C.F.R. § 4.59. After careful review, the Board finds that an increased rating for limitation of motion is not warranted. In general, knee disabilities are rated based on limitation of flexion or extension of the leg. Normal range of motion of the leg is from 140 degrees on flexion to 0 degrees on extension. 38 C.F.R. § 4.71a, Plate II. The recent amendments to the rating schedule for musculoskeletal disabilities did not affect Diagnostic Codes 5260 and 5261, which are applicable here. 85 Fed. Reg. at 76463. Under Diagnostic Code 5260, a 10 percent rating is assigned where flexion is limited to 45 degrees, a 20 percent rating is assigned where flexion is limited to 30 degrees, and a maximum 30 percent rating is assigned where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a 10 percent rating is assigned where extension is limited to 10 degrees, a 20 percent rating is assigned where extension is limited to 15 degrees, a 30 percent rating is assigned where extension is limited to 20 degrees, a 40 percent rating is assigned where extension is limited to 30 degrees, and a maximum 50 percent rating is assigned where extension is limited to 45 degrees. Id. VA can assign separate ratings for limitation of extension and flexion without violating the rule against "pyramiding." This rule prohibits VA from paying compensation twice (or more) for the same symptoms or functional impairment. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107, 113 (2017). However, only one compensable rating can be assigned where there is painful but otherwise noncompensable limitation of movement. 38 C.F.R. § 4.59 does not permit separate compensable ratings for each joint movement that results in painful motion. Rather, it provides that painful motion warrants at least the minimum compensable evaluation for the joint. See Mitchell, 25 Vet. App. at 39. In other words, the rule against pyramiding prohibits separate compensable ratings based solely on painful motion. Diagnostic Code 5256, which evaluates ankylosis of the knee, did not change with the recent amendments to 38 C.F.R. § 4.71a either. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). In this case, there is no evidence of ankylosis of the knee during the period on appeal. The Veteran does not argue otherwise. As such, Diagnostic Code 5256 is not applicable. Similarly, there is no evidence that the Veteran has ever been diagnosed with or treated for a meniscal (semilunar cartilage) condition, a tibial or fibular impairment, or genu recurvatum. He does not argue otherwise. Thus, Diagnostic Codes 5258, 5259, 5262, and 5263 are not applicable here either. In the 2019 remand, the Board found that the Veteran's previous knee and back examinations from July 2010 did not comply with the joint testing requirements of Correia v. McDonald, 28 Vet. App.158, 168 (2016). The Board remanded for new examinations. The Veteran received a new knee examination in December 2020. The 2020 examiner complied with the Board's remand instructions, and included pertinent clinical findings on the extent of the knee disability. The Board finds this examination highly probative. At the 2020 examination, the Veteran stated that his knee disability had worsened over time. He reported localized pain in his knee but no other symptoms. He stated he is not able to stand for prolonged periods or walk long distances. He denied any current treatment other than the regular use of a knee brace. He denied having any flare-ups. The Veteran demonstrated full range of motion of the right knee, with pain on both flexion and extension. There was no additional loss in function or range of motion after three repetitions. There was no objective evidence of localized tenderness or pain on palpation. The 2020 examiner indicated that pain and other factors do not significantly limit functional ability with repeated use over a period of time or during flare-ups. The 2020 examination revealed no ankylosis of the knee, meniscal conditions, or tibial or fibular impairment. There was no objective evidence of joint instability. The findings above are generally consistent with the other evidence on file, including the Veteran's medical records and lay statements. For example, a June 2006 Social Security Administration (SSA) disability examination revealed normal range of motion in the right knee. A February 2010 VA physical therapy consultation note also indicates that right knee range of motion was within normal limits on both active and passive testing. A February 2012 VA orthopedic surgery consultation note shows that the Veteran had active range of motion from 0 to 120 degrees. In short, there are no range of motion measurements on file that would support a rating higher than 10 percent under any appropriate diagnostic code. Overall, the preponderance of evidence is against finding that the Veteran's right knee disability limits flexion to 30 degrees or limits extension to 15 degrees. This is the case even when considering his lay statements regarding functional loss with repeated use over a period of time or during flare-ups. There is no reasonable doubt to resolve in the Veteran's favor in this instance. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A rating higher than 10 percent based on limitation of motion is denied. 2. A separate 10 percent rating for right knee instability The Board finds that the Veteran is entitled to a separate 10 percent rating, but no higher, for right knee instability under Diagnostic Code 5257. VA amended Diagnostic Code 5257, effective February 7, 2021. 85 Fed. Reg. at 76463. Under the previous version of this diagnostic code, a 10 percent rating is assigned for slight lateral instability of the knee, a 20 percent rating is assigned for moderate lateral instability, and a maximum 30 percent rating is assigned for severe lateral instability. 38 C.F.R. § 4.71a. Objective medical evidence is not required to establish instability under this version of the diagnostic code. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Nor is objective medical evidence categorically more probative than lay evidence. Id. In applying the prior version of Diagnostic Code 5257, the Board must rely on the ordinary, dictionary definitions of the terms "slight," "moderate," and "severe" because those terms are not defined in the regulations. According to Merriam Webster's Collegiate Dictionary (11th Ed. 2007), "slight" means small in amount, "moderate" means limited in scope or effect, and "severe" means very painful or harmful or of a great degree. Under the amended diagnostic code, a 10 percent rating is assigned where a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causes persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Alternatively, a 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. 85 Fed. Reg. at 76463. A 20 percent rating is assigned where: (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causes persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) an unrepaired or failed repair of a complete ligament tear causes persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. Alternatively, a 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. Id. A maximum 30 percent rating is assigned where an unrepaired or failed repair of a complete ligament tear causes persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. Alternatively, a 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. In this case, the Veteran reported instability symptoms to multiple healthcare providers throughout the period on appeal. For example, he told the SSA examiner in 2006 that he wears a right knee brace because "occasionally it gives way and he has fallen because of this problem." He made a similar statement to a non-VA neurologist during a consultation a few months later in November 2006. The February 2010 VA physical therapy note reflects that the Veteran's right knee "pops, catches, grates, or gives way" when he moves it. However, various joint stability tests were negative at that time. At the July 2010 VA examination, the Veteran again reported "feelings of giving way that will cause him to fall." He stated that he most recently fell approximately 2 years earlier. He also reported using a VA-prescribed hinged knee brace and cane. Joint stability tests were negative. The Veteran did not report instability symptoms during his most recent VA examination in December 2020. As noted above, there was no objective evidence of joint instability either. However, he did report the regular use of a knee brace to assist with walking. As a layperson, the Veteran is competent to report subjective knee symptoms like "giving way." He is also competent to report a history of falls due to those symptoms. The Board finds his lay statements to this effect credible. Indeed, medical records confirm that he used a VA-prescribed right knee brace throughout the appeal period. On the other hand, joint stability tests were consistently negative during the same period. Nevertheless, the Veteran's competent, credible lay statements are sufficient to establish instability under the former version of Diagnostic Code 5257. English, 30 Vet. App. at 352-53. Based on the reported frequency of these symptoms, the Board finds that his instability is best characterized as "slight" under the ordinary, dictionary definition of the term. Accordingly, resolving any reasonable doubt in his favor, a 10 percent rating for right knee instability is granted. Gilbert, 1 Vet. App. at 53. 3. An initial rating higher than 10 percent for a lumbar spine disability The Veteran's low back disability is rated at 10 percent under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). After careful review, the Board finds than an increased rating is not warranted. Back disabilities are rated under either the General Formula or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in a higher evaluation. 38 C.F.R. § 4.71a. The recent amendments to the rating schedule for musculoskeletal disabilities did not affect the applicable rating criteria here. 85 Fed. Reg. at 76463. Under the General Formula, a 10 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; where combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or for vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where 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 where forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Any associated objective neurological abnormalities, including but not limited to bowel or bladder impairment, are rated separately under an appropriate diagnostic code. Id., General Formula at Note 1. For VA purposes, "unfavorable ankylosis" means that the entire cervical spine, the entire thoracolumbar spine, or the entire 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 of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id., General Formula at Note 5. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. An "incapacitating episode" is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., at Note 1. In this case, there is no evidence that the Veteran has experienced incapacitating episodes of IVDS as defined above. He does not argue otherwise. The Board will therefore apply the General Formula. The most probative evidence here comes from a December 2020 VA examination. The 2020 examiner complied with the Board's 2019 remand instructions, and included pertinent clinical findings on the extent of the Veteran's back disability. These findings do not support a rating higher than 10 percent. The Veteran told the 2020 examiner that his back pain had worsened since onset. He reported that intermittent back pain impacts his ability to walk long distances or stand for long periods of time. He denied any current treatment and denied any flare-ups. The Veteran demonstrated full range of motion of the thoracolumbar spine. There was no evidence of painful motion, and no additional loss of function or range of motion after three repetitions. The examiner noted localized "dull," "6/10" pain at the L1 level on palpation. The examiner indicated that pain, fatigue, and lack of endurance would significantly limit functional ability with repeated use over a period of time. The examiner estimated a 5-degree loss in range of motion on extension, lateral flexion and lateral rotation, but no loss in forward flexion. In other words, the examiner estimated that the Veteran's combined range of motion with repeated use over a period of time is 215 degrees. The examination revealed no guarding or muscle spasm, no radiculopathy or other neurological abnormalities, and no ankylosis of the spine. The Board finds no other medical or lay evidence in the record that would support a rating higher than 10 percent under the General Formula. Medical records show complaints of back pain, tenderness, and lumbar muscle spasm. However, these records do not show decreased forward flexion at 60 degrees or less, or decreased combined range of motion at 120 degrees or less. Likewise, there is no evidence that he had abnormal gait or spinal contour due to muscle spasm. In sum, the preponderance of evidence is against finding that the Veteran's lumbar spine disability limits forward flexion to 60 degrees, limits combined range of motion to 120 degrees, or results in muscle spasm or guarding severe enough to cause abnormal gait or spinal contour. This is the case even when considering his lay statements regarding functional loss with repeated use over a period of time or during flare-ups. There is no reasonable doubt to resolve in the Veteran's favor in this instance. Gilbert, 1 Vet. App. at 53 (1990). A rating higher than 10 percent is denied. REASONS FOR REMAND 1. An initial compensable rating for lichen planus chronicus, from April 13, 2005 to January 21, 2014, is remanded. 2. A rating higher than 30 percent for lichen planus chronicus, from January 22, 2014, is remanded. The Veteran also seeks an increased rating for service-connected lichen planus chronicus. This skin disability is rated as noncompensable from April 13, 2005 to January 21, 2014, and at 30 percent thereafter under Diagnostic Code 7822. 38 C.F.R. § 4.118. In its July 2019 remand, the Board instructed the AOJ to schedule the Veteran for a new skin examination. The Board also instructed the AOJ to obtain a medical opinion on whether his use of topical medications, since April 2005, amounts to "constant or near-constant systemic therapy" within the meaning of VA's skin regulations. See Remand at 10 (citing Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017) and Burton v. Wilkie, 30 Vet. App. 286 (2018)). The Board provided detailed instructions for the AOJ and the examiner regarding this opinion. Id. at 13-14. The Veteran received a new skin examination in December 2020. However, the 2020 examiner did not provide the medical opinion requested by the Board. The AOJ has not obtained one since then. Because the AOJ failed to comply with the Board's instructions, another remand is necessary. Stegall, 11 Vet. App. at 271. 3. A TDIU is remanded. The Board determined in July 2019 that the issue of entitlement to a TDIU had been raised in connection with the claims on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Because the Board is again remanding the Veteran's lichen planus chronicus increased rating claim, the "inextricably intertwined" TDIU issue is remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician on whether the Veteran's use of topical medications, since April 2005, amounts to "constant or near-constant systemic therapy" for his service-connected skin disability. See 38 C.F.R. § 4.118, Diagnostic Code 7822. Following a review of the Veteran's claims file, the examiner must identify the medications the Veteran has used to treat his lichen planus chronicus since April 2005 and the duration of such treatment, to include but not limited to, aquaphor ointment, triamcinolone 0.1% ointment, benzoyl peroxide 10% gel, erythromycin base 2% gel, miconazole nitrate 2% topical cream, mupirocin 2%, hebiclens, doxycycline 100 mg, desonide 0.1%, hydroxyzine 10mg, cordran tape, fluocinonide 0.05% cream, and cetaphil. For each medication, the examiner must indicate whether the medication is a topical, corticosteroid, or immunosuppressive drug. For each medication, the examiner must indicate whether such treatment constitutes systemic therapy, i.e., affecting the body as a whole, or is like or similar to corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs. If the examiner determines that a medication is topical, the examiner should also address whether it was (1) administered on a large enough scale such that it affected the body as a whole; (2) the method by which the treatment works; and (3) its side effects in determining whether the medication could be considered systemic therapy. 2. Review the medical opinion above to ensure substantial compliance with the Board's directives. Take any necessary corrective action. 3. Readjudicate the claims in a supplemental statement of the case, and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.