Citation Nr: 21067676
Decision Date: 11/05/21	Archive Date: 11/05/21

DOCKET NO. 14-25 180
DATE: November 5, 2021

ORDER

Entitlement to an increased rating of 40 percent prior to August 18, 2015 for status post posterior fixation with retained surgical hardware, loss of intervertebral disc space, retrolisthesis, and lumbus vertebra of the lumbar spine (lumbar spine disability) is granted.

Entitlement to an increased rating of 30 percent, but no higher, for left knee chondromalacia from August 8, 2016 is granted.

Entitlement to a separate evaluation of 40 percent, but no higher, for left knee chondromalacia limitation of extension from August 8, 2016 is granted.

REMANDED

Entitlement to an increased rating in excess of 40 percent for a lumbar spine disability is remanded.

Entitlement to an increased rating in excess of 10 percent for left knee chondromalacia prior to August 8, 2016 is remanded.

FINDINGS OF FACT

1. After resolving reasonable doubt in the Veteran's favor, his lumbar spine disability manifested in functional loss equivalent to favorable ankylosis of the thoracolumbar spine prior to August 18, 2015.

2. From August 8, 2016, after resolving reasonable doubt in the Veteran's favor, his left knee has manifested in severe instability and functional impairment equivalent of extension limited to 30 degrees.

3. From August 8, 2016, the Veteran is awarded the maximum rating for his left knee allowed by law.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an increased rating of 40 percent prior to August 18, 2015 for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5243 (2021).

2. The criteria for entitlement to an increased rating of 30 percent, but no higher, for left knee chondromalacia from August 8, 2016 have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5257 (2021).

3. The criteria for entitlement to a separate evaluation of 40 percent, but no higher, for left knee chondromalacia limitation of extension from August 8, 2016 have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5261 (2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1987 to October 2007.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA). This case was remanded in February 2019 and May 2021 for further development.

In January 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record.

The Board notes that VA treatment records were added to the claim file after the Agency of Original Jurisdiction (AOJ) last issued a supplemental statement of the case (SSOC). The Board finds that waiver of this evidence is not necessary because the only issue being denied hereina partial denial of entitlement to an increased rating for the kneeis being denied as a matter of law. Thus, the Board will proceed with adjudication.

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4.

When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, there must be consideration of functional loss caused by factors that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) ("functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor...that actually limited motion" (emphasis removed)). 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 (musculoskeletal system) or § 4.73 (muscle injury); 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).

The provisions of 38 C.F.R. § 4.59 acknowledge that a claimant's disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Code. Pain alone does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 38-39 (2011).

1. Entitlement to an increased rating in excess of 20 percent prior to August 18, 2015 for a lumbar spine disability. 

The Veteran is currently rated pursuant to Code 5243 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 40 percent rating is warranted for flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. 

During a February 2013 examination, the Veteran reported that his condition had gotten worse. The examiner noted that there was objective evidence of painful motion at 0 degrees forward flexion. The Veteran reported that his flare-ups impacted his ability to stand, sit, and sleep. During an August 2015 examination, the Veteran reported that his flare-ups consisted of extreme pain and an inability to sit, lay, or walk. Forward flexion was limited to 30 degrees. 

After considering the February 2013 VA examiner's report that the Veteran had objective evidence of painful motion starting at 0 degrees forward flexion, the Board finds that such pain results in functional impairment equivalent to favorable ankylosis of the thoracolumbar spine. Such impairment is also corroborated by the Veteran's report of his inability to stand, sit, and sleep during flare-ups. Thus, the Board will resolve reasonable doubt in the Veteran's favor and find the Veteran had constant back pain prior to August 18, 2015 that manifested in functional impairment equivalent to favorable ankylosis. As a result, an increased rating of 40 percent prior to August 18, 2015 is warranted.

2. Entitlement to an increased rating in excess of 10 percent for left knee chondromalacia from August 8, 2016.

The Veteran's left knee osteoarthritis is currently rated at 10 percent by analogy pursuant to Code 5024, which is for tenosynovitis. Pursuant to that Code, the disability is to be rated on limitation of motion of affected parts, as degenerative arthritis. It is unclear which Code for limitation of motion is currently being used to rate the Veteran's disability.

Standard motion of a knee joint is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by Codes 5260 and 5261. 

Code 5261 pertains to limitation of leg extension. A 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating is warranted where extension is limited to 30 degrees; and a 50 percent maximum rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Code 5261.

Under Code 5257, a 10 percent rating is warranted for slight subluxation or lateral instability. A 20 percent rating is warranted for moderate subluxation or lateral instability. A 30 percent maximum rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257.

The evaluation of the same disability under several Codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A claimant who has limitation of extension and instability of the knee may be rated separately under Codes 5257 and 5261. However, separate ratings require separate compensable symptomatology. See Lyles v. Shulkin, 29 Vet. App. 107 (2017).

The combined rating for disabilities of an extremity shall not exceed the rating for the amputation of that extremity at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. A 60 percent rating is provided for an amputation of the thigh, above the knee, at the middle or lower third. 38 C.F.R. § 4.71a, Codes 5162, 5163, 5164.

The Board notes that, 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); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). Where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria and, should an increased rating be warranted under revised criteria, that award may not be made effective before the effective date of the change. However, in this case, the Board is assigning the maximum legal rating under the old criteria for the Veteran's knee without violating the amputation rule. As a result, the Board will not discuss the new criteria pertaining to the knee, as it is unnecessary in this case.

The Board notes that this case has been remanded to obtain an examination in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). The examination obtained in June 2021 remains inadequate and does not comply with the Board's prior remand directive. However, the Board is assigning the Veteran's knee disability a combined rating of 60 percent, and he cannot legally obtain a rating in excess of 60 percent due to the amputation rule. Thus, there is no reasonable possibility of substantiating the claim, and remand is unnecessary. See 38 C.F.R. § 3.159(d).

The Veteran reported a worsening of left knee symptoms where he "never had any problems before" on August 8, 2016. See August 2016 VA treatment records. During a September 2020 VA examination, the Veteran again reported that his condition had progressed and that he now had constant pain with limited range of motion and weakness. He was unable to stand or walk unassisted. In June 2021, he reported that he continued to experience knee pain, stiffness, and swelling. The examiner opined that the Veteran's left knee impaired his ability to stand, walk, and complete activities of daily living and range of motion testing could not be performed because the knee was damaged.

As noted above, the VA examinations of record are inadequate because they do not comply with Correia. Thus, the Board will not rely on the range of motion testing provided. However, in light of the worsening of symptoms reported on August 8, 2016, the Veteran's credible report of constant pain, and the examiners' opinions that the Veteran's left knee disability affected his ability to stand and walk, and after resolving reasonable doubt in his favor, the Board finds that the Veteran's left knee disability manifests in functional impairment equivalent to extension limited to 30 degrees. As a result, a 40 percent rating from August 8, 2016 pursuant to Code 5261 is warranted. Additionally, as the Veteran's knee is too weak to walk and stand without the help of an assistive device, the Board will resolve reasonable doubt in his favor and find that he has severe left knee instability. Thus, the Board is changing the current rating for the Veteran's left knee chondromalacia to Code 5257 and a 30 percent rating from August 8, 2016 is warranted.

The Board notes that the Veteran's ratings for his knee have a combined rating of 60 percent. This is the maximum rating allowed for the knee and a higher rating cannot be awarded. See 38 C.F.R. § 4.68. Thus, remand for a new examination pursuant to Correia is unnecessary a rating of 40 percent, but no higher, for limitation of extension and a rating of 30 percent, but no higher, for left knee instability are warranted.

REASONS FOR REMAND

1. Entitlement to an increased rating in excess of 40 percent for a lumbar spine disability.

The General Formula provides that any objective neurologic abnormalities associated with the Veteran's lumbar spine disability must be evaluated. See 38 C.F.R. § 4.71a, Code 5243, General Formula, Note (1). The Veteran is already service-connected for a neurogenic bladder, effective, May 8, 2017, but this disability is not service-connected for the entire period of appeal, which begins in January 2013. See September 2017 rating decision.

VA treatment records reflect that the Veteran had bladder incontinence as early as January 2017. As a result, remand is necessary for an opinion regarding when the Veteran's bladder incontinence associated with his lumbar spine disability began.

2. Entitlement to an increased rating in excess of 10 percent for left knee chondromalacia prior to August 8, 2016.

As discussed above, the record indicates a clear worsening of symptoms from August 8, 2016. Prior to that date, it appears that the Veteran's left knee impairment was minimal. However, VA examinations from this period of appeal are inadequate because range of motion testing was not provided for both active and passive motion in both weight-bearing and non-weight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). See February 2013 and August 2015 VA examinations. Thus, remand for a new VA knee examination with a retrospective opinion is necessary.

The matters are REMANDED for the following action:

1. The AOJ should obtain copies of VA treatment records from July 2021 to the present.

2. After the above development is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected lumbar spine disability. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran's disability. In addition, the examiner is requested to respond to the following:

When did the Veteran's neurogenic bladder associated with his lumbar spine disability first manifest? The examiner must discuss, as appropriate, January 2017 VA treatment records reflecting bladder incontinence. Any lay statements from the Veteran should be considered or sought as necessary. The examiner may not rely merely on the absence of medical evidence.

3. After the development in the first directive is completed, the AOJ should arrange for an orthopedic examination of the Veteran and retrospective opinion to assess the severity of his service-connected left knee disability prior to August 8, 2016. The examiner must review the entire record in conjunction with the examination and note such review was conducted. The examiner is asked to provide a retrospective opinion for the following:

For the period prior to August 8, 2016, the examiner should provide range of motion measurements for (1) active motion in weight-bearing circumstances, (2) active motion in non-weight-bearing circumstances, (3) passive motion in weight-bearing circumstances, and (4) passive motion in non-weight-bearing circumstances, including for the opposite undamaged joint, if applicable. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. The examiner should solicit lay statements from the Veteran, as required, to help provide this information.

If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss for the period prior to August8, 2016, using lay observations specifically elicited from the Veteran. 

If none of the information requested is feasible to obtain, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that this is a retrospective opinion and the examiner did not have the opportunity to observe the Veteran prior to August 8, 2016 will not be deemed adequate.

4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. 

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Sandler, 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.