Citation Nr: 21070740 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 07-15 022 DATE: November 24, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for right knee degenerative arthritis with Baker's cyst status post right meniscal tear repair is denied. Entitlement to an additional evaluation of 10 percent, but no higher, for right knee instability for the period beginning March 20, 2009 is granted. Entitlement to an initial evaluation in excess of 10 percent for lumbar degenerative disc disease with degenerative joint disease for the period prior to October 17, 2020 is denied. Entitlement to an evaluation in excess of 20 percent for lumbar spine degenerative disc disease and intervertebral disc syndrome (IVDS) for the period beginning October 17, 2020 is denied. FINDINGS OF FACT 1. The evidence of the record does not show that the Veteran's current right knee disability has been resulting in flexion limited to 30 degrees or less. 2. Resolving reasonable doubt in the Veteran's favor, the Veteran's slight symptoms of right knee instability were shown for the period beginning March 20, 2009. 3. For the period prior to October 17, 2020, the Veteran's lumbar spine disability did not result in forward flexion of the lumbar spine not greater than 60 degrees; or 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. 4. For the period prior to October 17, 2020, the evidence of record does not show that the Veteran's lumbar spine disability resulted in incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during a 12-months period. 5. For the period beginning October 17, 2020, the Veteran's lumbar spine disability has not been resulting in forward flexion limited to 30 degrees or less, or ankylosis of the entire thoracolumbar spine. 6. For the period beginning October 17, 2020, the Veteran has not had any incapacitating episodes due to his IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for right knee degenerative arthritis with Baker's cyst status post right meniscal tear repair have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.59, 4.71a, Diagnostic Code 5260 (2020). 2. Resolving reasonable doubt in the Veteran's favor, for the period beginning March 20, 2009, the criteria for an additional evaluation of 10 percent, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.59, 4.71a, Diagnostic Code 5257 (2020). 3. For the period prior to October 17, 2020, the criteria for an initial evaluation in excess of 10 percent for lumbar degenerative disc disease with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.59, 4.71a, Diagnostic Code 5242 (2020). 4. For the period beginning October 17, 2020, the criteria for an evaluation in excess of 20 percent for lumbar spine degenerative disc disease and IVDS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.59, 4.71a, Diagnostic Code 5243 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1981 to June 2005. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2009, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) other than the undersigned. A transcript of the hearing has been associated with the electronic claims file. As the VLJ who conducted the March 2009 hearing is no longer working as a VLJ at the Board, the Veteran was provided an opportunity to request an additional hearing. See September 2021 BVA Letter. However, the Veteran did not take the opportunity to request another hearing. The Board previously remanded the matters in August 2009, March 2016, and March 2018 for additional development. Now the matters are returned to the Board. The Veteran is seeking higher initial evaluations for his service-connected right knee and lumbar spine disabilities. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2020). The intent of Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Also, in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2020). Otherwise, it will assign the lower rating. Id. 1. Right knee The Board notes that the Veteran was assigned 0 percent disability rating initially when service connection for right knee disability was granted, but the RO has increased the initial rating to 10 percent during the period on appeal. See December 2005 and October 2020 Rating Decisions. However, as the highest possible rating for the disability has not been assigned, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran's right knee degenerative arthritis is evaluated under Diagnostic Code 5260 for limitation of flexion of the leg. In pertinent part, a 20 percent evaluation is warranted for flexion limited to 30 degrees; and a maximum 30 percent evaluation is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2020). On July 2005 VA physical examination conducted in Germany, the examiner provided the Veteran's diagnosis of right knee degenerative arthritis. The examiner reported that the Veteran had normal right knee range of motion for his body type and muscle mass. Goniometer readings of the right knee range of motion were flexion to 134 degrees (active motion) and 136 (passive motion), and extension to 0 degrees (active motion) and 8 degrees (passive motion). The examiner provided that 5 repetitions did not decrease range of motion or function of the knee, and pain was not noted during the range of motion testing. The Veteran had crepitus in the right knee and tenderness with downward pressure on the patellae. There was no right knee effusion, and both McMurray's and Lachman's tests were negative. The examiner indicated that a January 2004 MRI of the right knee showed medial and posterior meniscal damage, but no specific tear, and the Veteran had a right knee arthroscopy in 2004. The examiner provided that the Veteran's right knee condition is a chronic degenerative problem, and it will require additional ongoing medical monitoring. Treatment records from January and March 2009 contains the Veteran's reports of continuing right knee pain, and the history of a right knee arthroscopy performed about 5 years prior. During the Board hearing held on March 20. 2009, the Veteran testified that he experiences right knee instability. He provided that his right knee tends to "give out" when he is descending stairs or walking, which requires him to concentrate to prevent himself from losing balance. The Veteran testified that he has not fallen due to the right knee instability, and he holds on to something when he loses balance. He also testified that he has constant pain in his right knee and swelling below the right knee. The Board finds the Veteran competent and credible to report his right knee symptoms. On February 2011 examination conducted in Germany, a diagnosis of chronic patella tip syndrome on the right was noted. For range of motion testing, the Veteran had pain in the right knee starting at 100 degrees. The sonography of the right knee revealed patella tip swelling and dilation of the patella tendon, but there were no signs of synovialitis or capsular proliferation. No fluid accumulations or scarring were found in the right knee. The X-ray of the right knee joint revealed normal configuration of the joint space without narrowing or other signs of wear and tear. Intercondylar eminence was normal with proper axis conditions. Patella silhouette was unremarkable with no evidence of prior fractures. There was no sign of inflammatory or osteodestructive process. The lateral image of the right knee revealed regular height of the patella without signs of wear and tear. On October 2020 VA examination, the following right knee diagnoses were noted: knee strain, knee tendonitis/tendonosis, degenerative arthritis, meniscal tear status post repair, Bake's cyst, and chondromalacia. The Veteran reported that his right knee symptoms have worsened since its onset in 1999. The Veteran provided that he has flare-ups of the right knee during which he has sharp pain on the front of the knee (8 to 9 out of 10 severity) that requires him to stop and rest his knee. As to functional loss, the Veteran described that he cannot run and need more time to use stairs or performing other weight-bearing activities. The right knee flexion (active) was to 120 degrees and extension was to 0 degrees. Pain was noted on both range of motion testing. The Veteran was able to perform repetitive-use testing with at least 3 repetitions without additional loss of function or range of motion afterwards. The examiner described that the right knee flexion will be further limited to 90 degrees due to pain with repeated use over a period of time. The examiner indicated that the measurements of passive range of motion of the right knee was the same as active range of motion, and there was no objective evidence of pain on passive range of motion testing. There was mild tenderness to palpation to the antero-medical aspect of the right knee. The examiner observed that the right knee swells on the anterior aspect, which further reduces range of motion and causes pain. There was no evidence of pain with weight-bearing or evidence of crepitus. The right knee muscle strength was normal, and there was no muscle atrophy. Right knee ankylosis was not found. The examiner indicated that there is no history of recurrent subluxation or lateral instability. All joint stability testing was normal. The examiner noted that the Veteran had right knee meniscal tear arthroscopic repair in 2004, but residual pain and reduced range of motion due to the surgery is difficult to differentiate from the overlapping symptoms of other right knee conditions. The examiner indicated that the Veteran does not have meniscal dislocation, frequent episodes of joint locking, or joint effusion. It was also noted that the Veteran does not use any assistive devices as a normal mode of locomotion. The examiner provided that the Veteran's service-connected right knee disability impacts his ability to perform occupational task because of his limitation in weight-bearing activities. The examiner estimated that the right knee arthritis and meniscal tear developed around the same time frame, and provided that Baker's cyst is commonly found in association with intra-articular knee disorders. Thus, the service-connected right knee diagnosis is corrected to right knee degenerative arthritis with Baker's cyst status post right meniscal tear repair. Based on above, the Board finds that the evidence of the record does not show that the Veteran's current right knee disability has been resulting in flexion limited to 30 degrees or less. Consequently, the Veteran's entitlement to an initial evaluation in excess of 10 percent for right knee degenerative arthritis with Baker's cyst status post right meniscal tear repair is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.59, 4.71a, Diagnostic Code 5260 (2020). However, the Board notes that the evidence of the Veteran's right knee instability was provided during the Board hearing conducted on March 20, 2009. Lateral instability of the knee is evaluated under Diagnostic Code 5257. Prior to February 7, 2021, under Diagnostic Code 5257, a 10 percent evaluation was warranted for slight symptoms; a 20 percent evaluation was warranted for moderate symptoms; and a 30 percent evaluation was warranted for severe symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021, which included revisions to Diagnostic Code 5257. 85 Fed. Reg. 230 (Nov. 30, 2020). Under the revised Diagnostic Code 5257, a 20 percent evaluation is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; and a maximum 30 percent evaluation is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). Thus, the revised Diagnostic Code 5257 may be applied to evaluating the disability for the period beginning February 7, 2021. However, here, applying the previous version of Diagnostic Code 5257 is more favorable to the Veteran; as such, the Board will apply the previous version in evaluating the Veteran's right knee instability for the entire period on appeal. In light of the Veteran's competent and credible testimony of his right knee "giving out" when descending the stairs or walking, the Board resolves reasonable doubt in the Veteran's favor and finds that the Veteran's slight symptoms of right knee instability were shown for the period beginning March 20, 2009. The Board concludes that the Veteran's right knee instability symptoms do not amount to a moderate level, because it has not been resulting in any fallings and has been manageable by the Veteran's concentrated movements. See March 2009 Hearing Transcript, at 6. Therefore, resolving reasonable doubt in the Veteran's favor, the Veteran's entitlement to an additional evaluation of 10 percent, but no higher, for right knee instability for the period beginning March 20, 2009 is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.59, 4.71a, Diagnostic Code 5257 (2020). The Board also considered whether the Veteran is warranted a separate evaluation under Diagnostic Code 5258. Under Diagnostic Code 528, a 20 percent evaluation is warranted for dislocated semilunar cartilage with frequent eps of "locking," pain, and effusion into the joint. However, here, the October 2020 VA examiner found that the Veteran does not have meniscal dislocation, frequent episodes of joint "locking," or joint effusion. Therefore, the Board concludes that additional evaluation under Diagnostic Code 5258 is not warranted at this time. 2. Lumbar spine The Veteran was initially evaluated at 10 percent for lumbar spine degenerative disc disease with degenerative joint disease under Diagnostic Code 5242. During the period on appeal, the RO increased the rating to 20 percent for degenerative joint disease and IVDS under Diagnostic Code 5243 from October 17, 2020. See October 2020 Rating Decision. However, as the highest possible rating for the disability has not been assigned, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). Pursuant to Diagnostic Code 5242 degenerative arthritis of the spine is evaluated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating. 38 C.F.R. § 4.71a (2020). Under the General Formula, in pertinent part, a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a maximum 100 percent evaluation is warranted for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, General Formula (2020). Under IVDS Formula, in pertinent part, a 20 percent evaluation is assigned 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 evaluation is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent evaluation is assigned 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, IVDS Formula (2020). For purposes of evaluations under IVDS Formula, an incapacitating episode is 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. First, the Board will examine whether the Veteran was entitled to an initial evaluation in excess of 10 percent for lumbar spine disability for the period prior to October 17, 2020. On July 2005 VA examination conducted in Germany, the examiner provided the Veteran's diagnosis of degenerative disc changes and degenerative joint changes in L4-5 and L5-S1 with radicular component. The examiner observed that the Veteran's posture and gait were normal during the examination. The Veteran provided that he walks and/or bikes daily for regular exercises. The Veteran had tenderness in the spine at L4-S1 as well as left paraspinous musculature at L4-S1. The Veteran did not have kyphosis, lordosis, or scoliosis. The goniometer readings for lumbar spine range of motion were reported as the following: forward flexions to 75 degrees (active) and 78 degrees (passive); extensions to 11 degrees (active) and 15 degrees (passive); both right and left lateral flexions to 20 degrees (active) and 23 degrees (passive); right lateral rotations to 35 degrees (active) and 37 degrees (passive); and left lateral rotations to 30 degrees (active) and 32 degrees (passive). Pain was noted on all range of motion testing with intensity of 8 out of 10 scale. The range of motion after 5 repetitions was noted as the following: forward flexion to 76 degrees; extension to 10 degrees; right lateral flexion to 18 degrees; left lateral flexion to 23 degrees; right lateral rotation to 34 degrees; and left lateral rotation to 30 degrees. On March 2009 Board hearing, the Veteran testified that his back condition has worsened since the last examination in 2005. He stated that the level of back pain varies depending on the activities that he performs. He also testified that he has missed approximately 8 to 10 working days in the past year due to his back disability. A June 2009 treatment record contains a diagnosis of spinal stenosis in lumbar canal. The physician provided that the Veteran's lumbar/lumbosacral spine exhibited abnormalities, but there was no tenderness to palpation at the mid lateral lumbar spine or left or right posterior superior iliac spine. On March 2011 evaluation conducted in Germany, the Veteran's diagnosis was notes as chronic lumbar syndrome with advanced erosive osteochondrosis at L4-5 with disc degeneration and disc degeneration at L5-S1. The Veteran reported worsening of his lumbar spine symptoms where he has more frequent, longer, and intensive episodes of pain. Active right rotation while sitting was to 28 degrees and active left rotation while sitting was 29 degrees with terminal path pain (2 out of 10) in projection to the lower two lumbar spine segments in the center. Right lateral flexion was to 27 degrees and left lateral flexion was to 29 degrees with pain of equivalent intensity at identical location. The Veteran did not have any functional loss, early tiring, or pain intensification after three repetitions. The Board notes that the evidence of record does not contain further pertinent evidence for evaluating the severity of the Veteran's lumbar spine disability prior to October 17, 2020, which is the date of the Veteran's updated VA examination for back conditions. Based on above, for the period prior to October 17, 2020, the Board finds that the Veteran's lumbar spine disability did not result in forward flexion of the lumbar spine not greater than 60 degrees; or 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. Also, for the period prior to October 17, 2020, the Board finds that the evidence of record does not show that the Veteran's lumbar spine disability resulted in incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during a 12-months period. The Board acknowledges that the Veteran's testimony on missing approximately 8 to 10 days of work due to his back disability; but the evidence of record does not show that he was required bed rests which were prescribed by a physician. Thus, applying IVDS Formula does not yield a higher rating for evaluating the Veteran's lumbar spine disability for the period prior to October 17, 2020. Consequently, the Veteran's entitlement to an initial evaluation in excess of 10 percent for lumbar degenerative disc disease with degenerative joint disease for the period prior to October 17, 2020 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.59, 4.71a, Diagnostic Code 5242 (2020). Now the Board will examine whether the Veteran is warranted an evaluation in excess of 20 percent for the period beginning October 17, 2020. On October 2020 VA examination for back conditions, the Veteran's diagnoses of degenerative arthritis of the lumbar spine, IVDS, spinal stenosis, and degenerative disc disease were noted. The Veteran reported that his lumbar spine symptoms have progressed/worsened since the onset of his disability. The Veteran described that he has severe low back pain and sensations like electronic shock on the left leg during flare-ups. As to functional loss due to back disability, the Veteran reported inabilities to run or lift weights. The forward flexion was to 60 degrees, extension was to 20 degrees, both right and left lateral flexions were to 20 degrees, and both right and left lateral rotations were to 20 degrees. The examiner indicated that pain was noted on forward flexion and extension range of motion testing, but it does not result in or cause functional loss. The Veteran was able to perform repetitive-use testing with at least 3 repetitions without additional loss of function or range of motion afterwards. The examiner noted that there was no evidence of pain with weight-bearing. The examiner also indicated that measurements of passive range of motion was the same as the active range of motion. The examiner provided that pain significantly limits the Veteran's functional ability with repeated use over a period of time and estimated range of motion as the following: forward flexion to 30 degrees; extension to 10 degrees; both right and left lateral flexions to 10 degrees; and both right and left lateral rotations to 10 degrees. The examiner provided that the examination was not conducted during a flare-up, but the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. The examiner observed that the Veteran does not have guarding or muscle spasm of the thoracolumbar spine. There was objective evidence of mild pain to palpation in paraspinal muscles at L3 to S1 levels. The Veteran's muscle strength was normal without muscle atrophy. Ankylosis of the spine was not found. The examiner noted that the Veteran has IVDS of the thoracolumbar spine, but did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran's occasional use of a cane during flare-ups was noted. The examiner provided that the Veteran's lumbar spine disability impacts his ability to work, because he is limited with weight-bearing activities and needs to rest at home during flare-ups. Based on above, for the period beginning October 17, 2020, the Board finds that the Veteran's lumbar spine disability has not been resulting in forward flexion limited to 30 degrees or less, or ankylosis of the entire thoracolumbar spine. Also, for the period beginning October 17, 2020, the Board finds that the Veteran has not had have any incapacitating episodes due to his IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Consequently, the Veteran's entitlement to an evaluation in excess of 20 percent for lumbar spine degenerative disc disease and IVDS for the period beginning October 17, 2020 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.59, 4.71a, Diagnostic Code 5243 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.