Citation Nr: 21072029 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 14-43 871 DATE: December 2, 2021 ORDER A disability rating greater than 10 percent for a right knee disability is denied. A disability rating greater than 20 percent for right shoulder impingement syndrome is denied. A disability rating greater than 20 percent for left shoulder impingement syndrome is denied. FINDINGS OF FACT 1. The Veteran's right knee disability is manifest in slight impairment due to recurring pain in the joint. 2. The Veteran's right shoulder impingement syndrome is manifest in no worse than limitation of motion at the shoulder level. 3. The Veteran's left shoulder impingement syndrome is manifest in no worse than limitation of motion at the shoulder level. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for a right knee disability have not been met. 3 8 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.10, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257. 2. The criteria for a disability rating greater than 20 percent for right shoulder impingement syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, DC 5201. 3. The criteria for a disability rating greater than 20 percent for left shoulder impingement syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.71a, DC 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from April 1975 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision. The Board subsequently remanded the claims in March 2021 in order to obtain updated medical opinions. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). At the time of the March 2021 Board remand, the issues on appeal included entitlement to service connection for a lumbar spine disability and a left knee disability. In an August 2021 rating decision, service connection was granted for a lumbar spine disability and a left knee disability. This action constituted a full grant of the benefits sought. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). The Veteran's claims for an increased rating for his service connected right knee, and bilateral shoulder disabilities were granted, increasing the disability rating to 10 percent and 20 percent respectively. As this was not a full grant of benefits, these claims are still considered on appeal and the Board will consider whether a further increase in the disability rating is warranted. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Right Knee Disability The Veteran's right knee disability has been rated at 10 percent throughout the period on appeal under DC 5257 for instability. The regulations pertaining to musculoskeletal disabilities were revised effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from that date. Prior to the 2021 revisions, DC 5257 provided that a 10 percent rating was assigned when slight impairment is shown, a 20 percent rating was warranted for moderate disability, and a maximum 30 percent evaluation was warranted for severe disability. 38 C.F.R. §§ 4.71a. See also Johnson v. Brown, 9 Vet. App. 7, 11 (1996) (holding that DC 5257 is not predicated on loss of range of motion). Descriptive terms such as "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Under the revised version of DC 5257, for recurrent subluxation or lateral instability, a 30 percent rating is assigned 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. A 20 percent rating is assigned 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; (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. A 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. 38 C.F.R. § 4.71a, DC 5257 (2021). In cases of patellar instability, a 30 percent rating is warranted for diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Under Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Per Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 38 C.F.R. § 4.71a, DC 5257 (2021). After review of the record, the Board finds that a rating higher than 10 percent under the old rating criteria is not warranted. The medical evidence of record shows that the Veteran's right knee disability manifested by pain in the right knee. The Veteran underwent a VA examination in August 2021 where the Veteran denied a history of instability or recurrent subluxation of his knee and the examiner noted no knee or patellar instability. However, the examiner noted bilateral knee pain since service. Further, the examiner found pain on active and passive motion. This finding is consistent with the other medical evidence of record and has been consistent throughout the period on appeal. Additionally, in 2011 and 2014 VA examinations, the Veteran denied bucking, locking, or any other medical treatment regarding his right knee. At no time during the appeal period has any of the Veteran's physicians or VA examiners noted the Veteran to have moderate recurrent subluxation or lateral instability. Further, the Board does not find the record to contain any evidence, to include the Veteran's lay statements, which may suggest the disability picture more nearly approximates moderate instability. As such, a rating higher than 10 percent is not warranted. Additionally, the Board finds that a 20 percent rating is not warranted under the new rating criteria. Notably, the Veteran's VA treatment records fail to show 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; 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. Accordingly, a rating greater than 10 percent rating is denied. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. Under DC 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. In this case, the VA examinations from September 2014 and August 2021 all documented flexion and extension measurements that do not warrant a separate compensable rating. VA treatment records are also silent for any showing that the Veteran warrants a compensable rating for limited range of motion of the knee. Therefore, a separate compensable rating for limited extension is not warranted. As the Veteran's knee disability did not result in ankylosis, impairment of the tibia and fibula, or genu recurvatum, DCs 5256, 5262, and 5263 are not for application. Shoulders The Veteran's right and left shoulder are rated under DC 5201 which provides that limitation of motion of the arm at shoulder level warrants 20 percent. Limitation of motion of the arm from midway between the side and shoulder level warrants a 30 percent rating for a major extremity, and 20 percent rating for a minor extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent rating for a major extremity, and 30 percent rating for a minor extremity. 38 C.F.R. § 4.71a The Veteran's right shoulder is his major extremity. Normal range of motion of the shoulder is flexion and abduction from 0 to 180 degrees, and internal and external rotation each to 90 degrees. 38 C.F.R. § 4.71, Plate I. Abduction is the motion of lifting the arm from the side, with 0 degrees representing the arm at the side and 90 degrees representing the arm at the shoulder level. 38 C.F.R. § 4.71a, Plate I. Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). Right Shoulder The Veteran's right shoulder is assigned a 20 percent rating. In order for the Veteran to merit a rating higher than 20 percent, his right shoulder must show limitation of motion of the arm from midway between the side and shoulder level or limitation of motion to 25 degrees from the side. After review of the records, highlighted below, the Board does not find that the evidence of record supports a rating higher than 20 percent for the Veteran's right shoulder disability. The Veteran underwent an August 2021 VA examination to determine the current severity of his bilateral shoulder disability. The examiner found evidence of pain on active and passive motion; however, this pain was noted to not result in or cause functional loss and the Veteran denied flare-ups. The examiner also noted flexion at worst to 140 degrees after repeated use, abduction at worst to 100 degrees, external rotation at 70 degrees and internal rotation at 80 degrees. No ankylosis was present. No clavicle, scapula, AC joint or sternoclavicular joint condition was suspected. There was no condition of the humerus noted. The Veteran's documented range of motion prior showed that he had range of motion above his shoulder. His examination findings do not show, however, that his shoulder was restricted to 25 degrees from his side. As such, a rating higher than 20 percent is not supported by the record. The Board notes that the Veteran and his representative have not identified or introduced any medical record in evidence which shows that the Veteran's range of motion was restricted to the criteria set forth by a rating higher than 20 percent. The Board has again considered the Veteran's statements and the doctrines of benefit of the doubt and reasonable doubt. As discussed above, there is no evidence in the record, or identified by the Veteran or his representative, which indicated the Veteran's limitation met those mandated necessary for higher ratings. There is no doubt or reasonable doubt to resolve to the Veteran's benefit or in his favor as the evidence of record does not support a higher rating. Increased evaluations under other potentially applicable diagnostic codes have been considered. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The evidence of record does not show that the Veteran has other such impairments that additional ratings pursuant to DCs 5208-5213 are warranted. 38 C.F.R. §§ 4.7, 4.71a. Left Shoulder The Veteran's left shoulder is also assigned a 20 percent rating. As the Veteran's left arm is his minor arm, a rating higher than 20 percent is only available under DC 5201 if the Veteran's arm was restricted to limitation of motion to 25 degrees from the side. The evidence of record does not show that such a limitation of motion was present at any time. As discussed previously, the Veteran underwent an August 2021 VA examination to determine the current severity of his bilateral shoulder disability. The examiner found evidence of pain on active and passive motion; however, this pain was noted to not result in or cause functional loss and the Veteran again denied flare-ups. The examiner also noted flexion at worst to 140 degrees after repeated use, abduction at worst to 100 degrees, external rotation at 70 degrees and internal rotation at 70 degrees. No ankylosis was present. No clavicle, scapula, AC joint or sternoclavicular joint condition was suspected. There was no condition of the humerus noted. The Board notes that the Veteran's left shoulder has restricted motion above his shoulder level. However, the rating for that level of disability is his current 20 percent rating. There is no indication the Veteran was restricted from moving his left arm more than 25 degrees from his side. Simply put, there is no evidence of record which supports a rating higher than 20 percent for the Veteran's left shoulder disability and the Board notes that the Veteran and his representative have not identified or introduced any medical record in evidence which shows that the Veteran's range of motion was restricted to the criteria set forth by a rating higher than 20 percent. The Board has again considered the Veteran's statements and the doctrines of benefit of the doubt and reasonable doubt. As discussed above, there is no evidence in the record, or identified by the Veteran or his representative, which indicated the Veteran's limitation met those mandated necessary for higher ratings. There is no doubt or reasonable doubt to resolve to the Veteran's benefit or in his favor as the evidence of record does not support a higher rating. Separate evaluations under other potentially applicable diagnostic codes have been considered. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The evidence of record does not show that the Veteran has other such impairments that additional ratings pursuant to DCs 5208-5213 are warranted. 38 C.F.R. §§ 4.7, 4.71a. Alexis M. Parrish Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, 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.