Citation Nr: 21064151 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-12 319 DATE: October 19, 2021 ORDER Entitlement to a disability rating in excess of 20 percent, prior to January 8, 2014, for degenerative disc disease of the lumbar spine is denied. Entitlement to a disability rating of 40 percent, but not higher, as of January 8, 2014, for degenerative disc disease of the lumbar spine is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an initial compensable disability rating for a right knee scar is denied. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the left lower extremity is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left knee is remanded. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee is remanded. FINDINGS OF FACT 1. Prior to January 8, 2014, the Veteran's thoracolumbar spine disability is manifested by a limitation to range of motion that was not limited to more than 30 degrees of flexion, with pain on motion. 2. At worst, since January 8, 2014, the Veteran's thoracolumbar spine disability is manifested by flexion limited to 25 degrees. 3. The Veteran's right knee scar is not shown to be painful, measures less than 144 sq. in. (929 sq. cm.) and does not limit function. 4. For the entire period remaining on appeal, the Veteran's left lower extremity was primarily manifested by, at worst, a moderate neurological impairment involving the Veteran's sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 20 percent, prior to January 8, 2014, for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5243. 2. The criteria for a disability rating of 40 percent, as of January 8, 2014, for degenerative disc disease of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5243. 3. The criteria for an initial compensable disability rating for a right knee scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.118, Diagnostic Code 7805. 4. The criteria for a disability rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to April 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. A transcript of his testimony is associated with the claims file. In February 2020, the Board remanded these appeals for further development. The Board also notes that, in August 2021, the RO granted a 40 percent rating for the Veteran's lumbar spine disability effective from January 7, 2021. Increased Rating Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth 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. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In general, when 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). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 specifically 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). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court has 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 (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. 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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). 1. Entitlement to a disability rating in excess of 20 percent, prior to January 7, 2021, for degenerative disc disease of the lumbar spine, and in excess of 40 percent thereafter The Veteran and his agent claim that he is entitled to a higher rating for his service-connected lumbar spine disability. The disability is rated at 20 percent disabling, prior to January 7, 2021, and 40 percent thereafter under the General Rating Formula for Diseases and Injuries of the Spine. During the course of the appeal, the Veteran has been afforded three VA examinations in April 2014, August 2015, and January 2021. The April 2014 VA examiner diagnosed the Veteran with degenerative arthritis of the spine, intervertebral disc syndrome, spinal fusion, spinal stenosis, degenerative disc disease, and lumbar laminectomy. The Veteran reported experiencing flare-ups during the VA examination, noting an impact to sitting, standing, and lifting. The Veteran's range of motion is limited, and he experienced pain on motion--specifically the Veteran's flexion was limited to 65 degrees (normal is 90), the extension was limited to 20 degrees (normal is 30), the right lateral flexion is limited to 25 degrees (normal at 30), the left lateral flexion is limited to 20 degrees (normal at 30), right rotation is limited to 20 degrees (normal at 30), and left rotation is limited to 15 degrees (normal is 30). There is additional limitation to range of motion after observed repetitive use testing, with flexion being limited to 60 degrees and left rotation being limited to 10 degrees. The examiner determined that the Veteran's disability causes additional functional loss, notably resulting in weakened movement; pain on movement; and interference with sitting, standing, and weight-bearing. Testing revealed localized tenderness on the left side lower lumbar area, and there is some guarding of the lumbar spine, that does not result in an abnormal gait or abnormal spinal contour. Testing also received normal muscle strength, except for left hip flexion and left knee extension which have active movement against some resistance, normal reflex and sensory examinations. The examination revealed negative results for bilateral straight leg raising test. No ankylosis was noted. The examination also revealed that the Veteran had intervertebral disc syndrome, with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. There was no noted use of an assistive device. The examiner determined that the Veteran's lumbar spine disability resulted in a functional impact, noting that the Veteran can't stand for a long time, or bend over. The August 2015 VA examiner diagnosed the Veteran with degenerative disc disease of the lumbosacral spine, thoracic spondylosis, and scoliosis. The Veteran claims his back disability has gotten worse and causes severe pain. After his back surgery in January 2014, there is constant pain with 8 out of 10 intensity. The Veteran reported experiencing flare-ups occurring one to two times per month lasting three to four days, and during flare-ups he cannot walk or get out of bed without help. The Veteran's range of motion is limited, and he experienced pain on motion--specifically the Veteran's flexion was limited to 60 degrees (normal is 90), the extension was limited to 0 degrees (normal is 30), the right lateral flexion is limited to 15 degrees (normal at 30), the left lateral flexion is limited to 15 degrees (normal at 30), right rotation is limited to 20 degrees (normal at 30), and left rotation is limited to 20 degrees (normal is 30). There is no additional limitation to range of motion after observed repetitive use testing. The examiner determined that the Veteran's disability causes additional functional loss, notably resulting in pain on movement. Testing revealed no localized tenderness, and there is some guarding of the lumbar spine, that results in an abnormal gait. Testing also received normal muscle strength and normal reflex examinations. The sensory examinations revealed decreased right lower leg and left foot toes. The examination revealed negative results for bilateral straight leg raising test. No ankylosis was noted. The examination also revealed that the Veteran did not have intervertebral disc syndrome. There was noted occasional use of crutches and a cane as an assistive device. The examiner determined that the Veteran's lumbar spine disability did not result in a functional impact. During the November 2019 Board hearing, the Veteran reported experiencing worsening symptoms due to his lumbar spine disability, which resulted in the Board's February 2020 remand for a new examination. The January 2021 VA examiner diagnosed the Veteran with intervertebral disc syndrome, thoracic scoliosis, and lumbar spondylosis. The Veteran reported that his disability currently manifests with lower back pain and impacts his ability to perform occupational functioning and ordinary activities, he also noted problems bending lifting. The Veteran also reported experiencing flare-ups that occur twice a month, are moderate, last two to three days, are precipitated by nothing in particular, can awaken sometimes, his back is hurting, and can be alleviated by oxycodone and bedrest. The Veteran also noted experiencing functional impact after a January 2012 due a surgery to clean out his spinal canal, and another surgery in 2014. The Veteran's range of motion is limited, and he experienced pain on motion--specifically the Veteran's flexion is limited to 30 degrees (normal is 90), the extension is limited to 20 degrees (normal at 30), the right lateral flexion is normal at 30 degrees, the left lateral flexion is limited to 25 degrees (normal at 30), right rotation is limited to 20 degrees (normal at 30), and left rotation is limited to 20 degrees (normal is 30), with pain on motion noted. The Veteran was unable to do observed repetitive use testing, since he had too much lumbar spine pain. The examiner noted that pain and lack of endurance significantly limit functional ability with repeated use over a period of time, and the Veteran's range of motion experiences additional limitation of motion, specifically with flexion being limited to 25 degrees, extension limited to 15 degrees, right lateral flexion is limited to 25 degrees, left lateral flexion is limited to 20 degrees, right rotation is limited to 15 degrees, and left rotation being limited to 15 degrees. The examiner also noted that pain and lack of endurance significantly limit functional ability with flare-ups, and the Veteran's range of motion does not experience additional limitation to range of motion during any flare-ups. The Veteran has muscle spasm that don't result in abnormal gait or abnormal spinal contour. Testing revealed normal muscle strength testing, no muscle atrophy, and normal reflex exam. The sensory examination is considered normal for the right lower extremity and decreased for the left lower extremity. Testing revealed positive results for straight leg raising of the left leg. No ankylosis was noted, however intervertebral disc syndrome was noted, but there was prescribed bedrest. The Veteran reported regularly using a cane as an assistive device. The examiner opined that the thoracolumbar spine disability results in a functional impact, which impacts walking and standing for greater than 10 minutes, pushing, pulling, lifting, and carrying greater than 15 pounds, bending and twisting at the waist; it impacts the veteran's ability to work in an environment that requires constant sitting at work station without allotted time for a scheduled break; positions that require back rotation and monitoring of personnel and equipment in controlled environments due to back pain with pain numbness and tingling in left leg. In April 2021, a retrospective opinion was obtained by VA, pursuant to the February 2020 Board remand, as the Board requested a retrospective opinion to determine the extent of the Veteran's functional loss around the April 2014 and August 2015 VA examinations. The April 2021 VA opinion concluded that the Veteran's lumbar spine disability was impacted after a January 2014 surgery which further impacted his range of motion. While the examiner was unable to confirm whether the flexion was limited to the same extent as in the January 2021 VA examination, but confirmed that the range of motion is likely similar dating back to the January 2014 surgery. The Board finds that, prior to January 8, 2014, the Veteran does not qualify for an evaluation in excess of 20 percent for his lumbar spine limitation of flexion, because flexion has not been limited to more than 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. However, the Board finds that, as of January 8, 2014, the medical evidence of record reflects findings that are consistent with a 40 percent rating based on the General Rating Formula for Diseases and Injuries of the Spine. His most significant loss of motion for this period was his flexion, which was at 25 degrees with pain during repeated use over time, and giving the Veteran the benefit of the doubt based on the April 2021 examiner's statement that such limitation was likely similar to that the Veteran experienced following his surgery on January 8, 2014, the Board find that this limitation has existed from that date to the present, and that such measurement squarely places the Veteran's limited movement within the 40 percent criteria for rating the back, including consideration of the Veteran's pain on functional use. Accordingly, the Board concludes that the evidence supports a finding that, since the January 2014 surgery, the Veteran's lumbar spine disability merits a 40 percent disability rating. However, the medical evidence of record does not support a disability rating in excess of 40 percent, for the same period of time as the Veteran's lumbar spine disability is not manifested by unfavorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 2. Entitlement to an initial compensable disability rating for a right knee scar The Veteran has an initial noncompensable rating for his scar on the right knee as residual of a right knee surgery, which is currently rated under 38 C.F.R. § 4.118, Diagnostic Code 7805. Diagnostic Codes 7800 through 7805 provide the criteria to assign disability ratings for scars. Diagnostic Code 7800 specifically applies to scars of the head, face, and neck. Diagnostic Code 7801 governs scars involving areas other than the head, face, or neck that are deep and nonlinear and provides for a 10 percent evaluation when the area or areas exceed six sq. inches (39 sq. cm.). A 20 percent evaluation is assigned when the area or areas exceed 12 sq. inches (77 sq. cm.). Note 1 provides that a deep scar is one associated with underlying soft tissue damage. Diagnostic Code 7802 applies to burn scars or scars due to other causes, not of the head, face, or neck that are superficial and nonlinear. Under this provision, a maximum schedular evaluation of 10 percent is warranted for scars with an area or areas of 144 sq. inches (929 sq. cm.) or greater. Note 1 provides that a superficial scar is one not associated with underlying soft tissue damage. Pursuant to Diagnostic Code 7804 for rating scars that are unstable or painful, a 10 percent rating is assigned for one or two scars that are unstable or painful, a 20 percent rating is assigned for three or more scars that are unstable or painful, and a 30 percent rating is assigned for five or more scars that are unstable or painful. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this Diagnostic Code, when applicable. 38 C.F.R. § 4.118. Diagnostic Code 7805 applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802 and 7804. Any disabling effects not considered in a rating provided under Diagnostic Codes 7800 through 7804 should be evaluated under an appropriate diagnostic code. The Board notes that the criteria for rating skin disorders was changed effective August 13, 2018. See 83 Fed. Reg. 32592 (July 13, 2018). As affecting scars under Diagnostic Codes 7801, 7802 and 7805, the amended criteria added notes to identify the six zones of the body for determining the potential applicability of separate ratings for multiple scars affecting different areas, or for a scar involving a large area. In the instant appeal, the Veteran's scar is located on his right lower extremity, and as each extremity is considered a "zone" under the amended criteria, there is no basis for a higher evaluation for the scar under the amended criteria. The Veteran asserts that he is entitled to initial compensable ratings for his service-connected scar. The Veteran was afforded a VA examination for his scar in January 2021. The January 2021 VA examination evaluated the scar and noted that there one scar, specifically in his right knee. The examiner further explained that the Veteran's scar is not painful or unstable. The Veteran's right knee scar is 18 x 0.5 cm. Based on review of the evidence, the Board finds that an increased rating is not warranted for the Veteran's scar at any time during the time frame on appeal. The Veteran is now in receipt of a noncompensable disability rating under Diagnostic Code 7805, and there is no basis to assign a higher rating. More specifically, the scars were not reported as deep and nonlinear, or to cause any limited motion; thus, a higher rating is not warranted under either Diagnostic Code 7801 or 7805. An initial 10 percent rating is also not warranted under Diagnostic Code 7802 as these scars do not have an area or areas of 144 square inches (929 sq. cm.) or greater. Moreover, a compensable rating is not warranted under Diagnostic Code 7804 pertaining to superficial and unstable scars as the scars were not reported as unstable or painful. In sum, the Board finds that increased ratings are not warranted for the Veteran's service-connected right knee scar for the entire period under consideration. Fenderson, supra. 3. Entitlement to an initial disability rating in excess of 20 percent for radiculopathy of the left lower extremity As of April 10, 2014, the Veteran is in receipt of a 20 percent disability rating for this service-connected disorder. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent is warranted for severe incomplete paralysis with marked muscular atrophy; and an 80 percent, the maximum available, is warranted for complete paralysis, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. For VA purposes, the term "incomplete paralysis," with diseases of the peripheral nerves and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. The words "slight," "mild," "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, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Turning to the medical evidence, in April 2014, the Veteran was afforded a thoracolumbar spine VA examination. After a physical examination of the Veteran, the VA examiner indicated that there was moderate intermittent pain and mild numbness, resulting in mild incomplete paralysis of the sciatic nerve on the left lower extremity. There was also normal muscle strength, except for left hip flexion and left knee extension which have active movement against some resistance, normal deep tendon reflexes and light to touch testing. There was no muscle atrophy. In August 2015, the Veteran was afforded another thoracolumbar spine VA examination. After a physical examination of the Veteran, the VA examiner indicated that there was moderate intermittent pain and moderate numbness of the left lower extremity, resulting in moderate incomplete paralysis of the sciatic nerve on the left lower extremity. Muscle strength and deep tendon reflexes were normal, and light to touch testing in the left lower extremity was decreased in the left foot and toes. There was no muscle atrophy. In January 2021, the Veteran was afforded another thoracolumbar spine VA examination. After a physical examination of the Veteran, the VA examiner indicated that there was mild intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness of the left lower extremity, resulting in mild incomplete paralysis of the sciatic nerve on the left lower extremity. Testing revealed normal muscle strength, no muscle atrophy, and a normal reflex examination. After a review of the evidence of record, the Board finds that for the entire time period remaining on appeal, the Veteran's symptoms do not more nearly approximate the criteria for a moderately severe rating of 40 percent under Diagnostic Code 8520. More specifically, the symptoms are consistently found to be consistent with, at worst, a moderate level of disability, which is further consistent with no muscle impairment and primarily sensory impact to the right lower extremity, which is consistent with at most a moderate level of disability. Consequently, a preponderance of the evidence is against the assignment of a 40 percent or higher rating for the Veteran's radiculopathy of the left lower extremity. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left knee is remanded. 2. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee is remanded. The Veteran and his representative are seeking a rating in excess of 10 percent for each of his bilateral knee disabilities, which are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Board notes that the Veteran's treatment records reflect a recommended arthroplasty, and the fact that the surgery was postponed in July 2020 due to time and pandemic restrictions. However, during the February 2021 VA examination, the Veteran reported having a total right knee replacement in 2020, and the records for this procedure are not in the claims file. It is also unclear from the record whether a left knee replacement was also planned or if not, whether the worsening condition of the right knee had an adverse impact on the left knee. Therefore, a remand is necessary to obtain these records to properly adjudicate the Veteran's increased rating claims with respect to the right and left knee. The matters are REMANDED for the following action: Take appropriate steps to obtain the Veteran's surgical records pertaining to the Veteran's right knee arthroplasty that reportedly occurred in 2020, which is likely after July 2020 as that was the date it was originally postponed, and any other treatment records relating to the Veteran's right and left knee. Thereafter, after conducting any additional development deemed appropriate following the receipt of such records, such as a new VA examination to address the current nature and severity of the Veteran's bilateral knee disorders, readjudicate the remaining claims on appeal. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.