Citation Nr: 21065245 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-03 224 DATE: October 25, 2021 ORDER Entitlement to a rating in excess of 10 percent for a right knee condition is denied. Entitlement to a rating in excess of 10 percent prior to October 29, 2020 and in excess of 20 percent from October 29, 2020 and thereafter for a lumbar spine condition is denied. FINDINGS OF FACT 1. The Veterans right knee condition has not limited the Veteran's right knee flexion to 30 degrees or less and has not caused moderate instability or moderate subluxation. 2. Prior to October 29, 2020, the Veterans lumbar spine condition has not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or by muscle spasm or guarding severe enough to result in an abnormal gait or in an abnormal spinal contour. 3. From October 29, 2020, the Veterans lumbar spine condition has not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for a right knee condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5257 and 5260. 2. The criteria for entitlement to a rating in excess of 10 percent prior to October 29, 2020 and in excess of 20 percent from October 29, 2020 and thereafter for a lumbar spine condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from February 2007 to February 2011. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2012 Regional Office (RO) rating decision. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to 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). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § § 4.71a ; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Under 38 C.F.R. § § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 1. Entitlement to a rating in excess of 10 percent for a right knee condition The Veteran is seeking a higher disability rating for his service connection right knee condition. Unfortunately, the Board is unable to award a rating higher than 10 percent. Regarding knee claims, a claimant who has arthritis and instability of the knee may be awarded separate ratings for each. See VAOPGCPREC 23-97. For example, when a knee disorder is already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran's knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). In this case, the Veteran is rated under DC 5260 and 38 C.F.R. § 4.59 for limitation of motion, as well as DC 5257 for instability. Under DC 5260, dealing with limited range of motion, the next higher 20 percent disability evaluation is warranted when flexion is limited to 30 degrees. A 30 percent disability evaluation is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, a 10 percent disability evaluation is contemplated for extension limited to 10 degrees. A 20 percent disability evaluation is warranted when extension is limited to 15 degrees. A 30 percent disability evaluation is warranted when extension is limited to 20 degrees. 38 C.F.R. § 4.71a. In this case, at his February 2011 examination, the Veteran reported symptoms of weakness, stiffness, swelling, giving way, lack of endurance, locking, fatigability, pain, dislocation, and grinding. He indicated that he did not experience heat, redness, deformity, tenderness, drainage, effusion or subluxation. He further reported flare ups that occur as often as once a day and lasts for 24 hours. Additionally, he reported difficulty with standing and walking which causes pain and he developed a limp. However, he reported no incapacitation or joint replacement. Upon testing, the Veteran exhibited flexion of 140 degrees and extension of 0 degrees. ROM 140. The examiner noted that the Veteran was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The Veteran underwent an examination in November 2016 for his knee condition. The Veteran reported that his right knee gives out and locks and he experiences pain under his kneecap. He did not report any flareups of the right knee and no functional loss. On examination, he exhibited flexion to 140 degrees and extension to 0 degrees with no pain noted on exam. The examiner noted pain with weight bearing. However, no localized tenderness, pain on palpitation or crepitus was noted. Additionally, the Veteran was able to perform repetitive use with no additional function loss or range of motion loss. Further, he exhibited full muscle strength, no atrophy, no ankylosis, no subluxation or lateral instability. The Veteran was afforded a new examination in October 2020. The Veteran reported that over the years his knees have gotten progressively worse. He reported that his right knee buckles and has instability. The Veteran further reported that he has experienced falls in the past and his current symptoms are sharp, aching pain, and buckling in the right knee. He reported flare ups in the right knee that were sharp and painful with immediate buckling that occur daily with pain rated as an 8/10. Additionally, he reported functional loss of the right knee as ascending and descending stairs, standing long periods, walking long distances, and the inability to do physical exercises like before. On examination, he exhibited flexion of 130 degrees and extension of 0 degrees with no evidence of crepitus. However, the examiner noted pain with weight bearing. The examiner further noted no additional loss on repetitive use testing and 125 degrees of flexion on repeated use. The Veteran exhibited muscle strength of 4/5 on flexion and 5/5 on extension. The examiner noted no atrophy or ankylosis. However, the Veteran exhibited slight lateral instability on right side. In this case, the Board finds that a rating in excess of 10 percent is not warranted. Specifically, the Veteran did not exhibit measurements to less than 110 degrees, and extension was not limited beyond 30 degrees. At worse, the Veteran exhibited flexion to 125 degrees and extension to 0. These values are each well outside of the 30 degrees and 10 degrees, respectively, for a higher or additional compensable rating. The Board thus determines that a rating in excess of that awarded under DC 5260 is not warranted. Next, the Board notes the Veteran also receives a separate 10 percent rating for instability. To warrant the next-higher 20 percent rating based on knee instability or cartilage symptoms, the evidence must show moderate recurrent subluxation or moderate lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or severe lateral instability. 38 C.F.R. § 4.71a, DC 5257. Based on the evidence, the Board determines that a rating in excess of 10 percent is not warranted based on instability. Specifically, the Veteran's October 2020 examiner noted slight lateral instability on the right side and no recurrent subluxation. For these reasons, a rating in excess of 10 percent for instability is not warranted. Accordingly, the Board concludes that an increased rating is not warranted for the Veteran's right knee disability. 2. Entitlement to a rating in excess of 10 percent prior to October 29, 2020 and in excess of 20 percent from October 29, 2020 and thereafter for a lumbar spine condition The Veteran contends that he is entitled to a higher rating for his service connected low back condition. The Veteran's low back condition is rated under 38 C.F.R. § § 4.71a , Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, without a showing of IVDS, a 20 percent rating is warranted for: Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 to 30 degrees or less; or Favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § § 4.71a. Prior to October 29, 2020 Based on the evidence of record, a rating in excess of 10 percent for a low back condition is not warranted prior to October 29, 2020. At no point during this period was the Veteran's range of motion shown to be 60 degrees or fewer. Specifically, the Veteran underwent an examination in February 2011. At this examination he reported limitation in walking and symptoms of stiffness, fatigue, spasms, decreased motion, and paresthesias. He stated that he did not experience numbness, but has weakness of his spine and leg with a pain level of severe that is exacerbated by physical activity. He further reported flare ups with pain, weakness, incoordination, and limitation of motion of joint-bending. Upon examination, he exhibited flexion to 90 degrees and extension to 30 degrees. The examiner noted that the Veterans joint function in his spine is not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The Board notes that these measurements do not warrant a rating in excess of 10 percent. Next, the Veteran underwent an examination in November 2016.The examiner noted no changes since the Veterans last exam. The Veteran underwent physical therapy several years ago and does exercises including back arches, cat stretches, leaning against a wall, and uses an elliptical 1-2 days per week for 5 mins. The Veteran further reported that most of his exercise is his activities of daily living and walks frequently around his home and property. During this examination, the Veteran reported no flare ups. On examination, he exhibited forward flexion to 90 degrees and extension to 30 degrees. No additional loss of function on repetitive use was noted and no guarding or muscle spasms was shown. Additionally, the Veteran exhibited normal strength, no atrophy, normal reflexes, normal senses, no radiculopathy, or other neurological abnormalities , no ankylosis, and no IVDS The Veteran underwent a private examination in October 2019. The Veteran reported chronic pain related to area numbness and loss of muscle strength in lower extremities. He reported flare up as tenderness between shoulder blades and functional loss when lifting things. The examiner noted a normal range of motion and pain noted on extension. Additionally, the examiner noted no change in range of motion on repetitive testing. The examiner noted yes for guarding and muscle spasms, but stated that his gait and spinal contour were normal. The examiner found a reduction in muscle strength and muscle atrophy that was generalized and mild. Further, the examiner noted yes for IVDS with incapacitating episodes that last less than a week. However, the examiner noted no problem with reflexes, normal senses, negative straight leg raise test, and no radiculopathy or other neurological abnormalities. The available evidence of record during this period does not warrant entitlement to a rating in excess of 10 percent. Specifically, while the October 2019 private examiner noted yes for muscle spasm and guarding, he found that it did not result in abnormal gait or spinal contour. Further, there is no evidence of further restriction based on repetitive use, flare-ups, or other factors listed in 38 C.F.R. § 4.40. These measurements are in excess of the 60 degrees forward flexion and 120 degrees combined range of motion required for a 20 percent rating. Accordingly, a rating in excess of 10 percent is not warranted prior to October 29, 2020. From October 29, 2020 The Veteran underwent a new VA examination for his low back condition in October 2020. Based on that VA examination, the Veteran's rating was increased to 20 percent, effective October 29, 2020 (the date of the examination). After a review of the evidence, the Board finds that a rating in excess of 20 percent is not warranted from this date. Specifically, at his October 2020 VA examination, the Veteran reported that he likes to walk around and stay active as much as he can. He reported symptoms of stabbing, dull, aching pain, stiffness, and fatigue. His current treatment regimen consists of stretching exercises, ginger, and tumeric. The Veteran also stated that he gets muscle spasms, sharp pain and can't barely walk about four times a week, with pain ranging at 9/10. Additionally, he stated that "I cannot walk, sit or stand long. I am not able to run like i did before, I have to use my cane to help me. I cannot do certain activities around the house before my back start hurting." On examination, pain was noted on forward flexion and extension which resulted in functional loss. The Veteran demonstrated forward flexion of 55 degrees, as well as muscle spasms guarding severe enough to result in an abnormal gait or abnormal spinal contour. The evidence does not show that the Veteran exhibited favorable ankylosis of the entire thoracolumbar spine. Therefore, the Veterans symptoms reflect the criteria for a rating of 20 percent disabling based on limited range of motion. To be awarded the next highest 40 percent rating for thoracolumbar range of motion, these flare-ups would have to limit the Veteran's range of motion to 30 degrees forward flexion. However, the October 2020 examiner noted forward flexion of 50 degrees due to back flare-ups. Moreover, the Veteran exhibited endorsed full muscle strength, no atrophy, normal reflexes and sensation to light touch, and no ankylosis. Based on the Veteran's observable range of motion and his statements, the Board finds that flare-ups did not limit the Veteran's range of motion and a higher rating is not warranted. In considering the appropriate disability ratings for the Veteran's disabilities, the Board has also considered the statements from the Veteran that his disabilities are worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of his knee condition according to their respective DCs. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Here, while the Veteran is competent to discuss his symptoms, it is the Board that must rate his disabilities under the appropriate diagnostic codes. In making these determinations, the Board is required to consider all evidence of record, to include his treatment records and VA examinations. The Board has placed more probative weight on the medical evidence. Overall, based on the evidence of record, an increased rating is not warranted for his back or his knee disabilities. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica