Citation Nr: 21072232
Decision Date: 12/02/21	Archive Date: 12/02/21

DOCKET NO. 11-30 815
DATE: December 2, 2021

ORDER

Entitlement to a 20 percent rating, but no higher, for scoliosis with intermittent symptomatic lumbar paraspinal tendonitis and degenerative arthritis, status post coccygeal fracture (hereinafter lumbar spine disability), is granted.

Entitlement to a 20 percent rating, but no higher, for left knee patellar tendonitis is granted.

Entitlement to a 20 percent rating, but no higher, for right knee patellar tendonitis is granted.

Entitlement to a separate disability rating of 10 percent, but no higher, for right knee instability is granted.

Entitlement to a separate disability rating of 10 percent, but no higher, for left knee instability is granted.

Entitlement to a separate disability rating of 20 percent, but no higher, for right knee meniscal tear is granted. 

Entitlement to an increased rating in excess of 20 precent for status post left clavicle fracture (hereinafter left shoulder disability) is denied.

Entitlement to an increased rating in excess of 10 percent for right wrist internal derangement (hereinafter right wrist disability) is denied.

FINDINGS OF FACT

1. The Veteran's lumbar spine disability has been manifested by pain and limitation of motion most closely approximating forward flexion of the spine greater than 30 degrees but not greater than 60 degrees.

2. The Veteran's left knee patellar tendonitis is manifested by additional functional loss that results in weakness, limited motion, and additional pain.

3. The Veteran's right knee patellar tendonitis is manifested by additional functional loss that results in weakness, limited motion, and additional pain.

4. Throughout the appeal period, the Veteran's right knee is manifested by slight instability.

5. Throughout the appeal period, the Veteran's left0 knee is manifested by slight instability.

6. Throughout the appeal period, the Veteran had a meniscal tear of the right knee associated with his service-connected right knee disability that is manifested by symptoms distinct from patellar tendonitis.

7. Throughout the entire appeal period, the Veteran's left shoulder disability has been manifested by forward flexion and abduction to 100 degrees at worst, including with consideration of functional loss due to pain or as determined to result after repeated use.  

8. Throughout the period on appeal, the Veteran's service-connected right wrist disability is assigned the maximum schedular rating for limitation of motion of the wrist, and ankylosis is not shown by the evidence of record.

CONCLUSIONS OF LAW

1. The criteria for 20 percent rating, but no higher, for lumbar spine disability has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.

2. The criteria for a 20 percent rating, but no higher, for left knee patellar tendonitis has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024, 5260.

3. The criteria for a 20 percent rating, but no higher, for right knee patellar tendonitis has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024, 5260.

4. The criteria for a separate 20 percent rating, but no higher, for right knee meniscal tear has been met for the entire appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258.

5. The criteria for a rating of 10 percent, but no higher, for right knee instability have been met for the entire appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257.

6. The criteria for a rating of 10 percent, but no higher, for left knee instability have been met for the entire appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257.

7. The criteria for a rating in excess of 20 percent for status post left clavicle fracture has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201.

8. The criteria for a rating in excess of 10 percent for right wrist internal derangement has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5215.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from June 1995 until his honorable discharge in May 2005. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our county.

This case has a long procedural history, initially coming to the Board on appeal of a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office.

In February 2017, October 2018, and October 2020, the Board remanded the claims for further development. The matter has now been returned for appellate consideration. As explained below, the Board is satisfied that there has been substantial compliance with the remand directives. Thus, no further action is required. See Stegall v. West, 11 Vet. App. 268 (1998).

Increased Ratings

The Veteran is seeking increased disability ratings for his low back, right wrist, left shoulder, and knees. He is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his service-connected disabilities. Layno v. Brown, 6 Vet. App. 465 (1994).

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civilian occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a claim for increase, when it is factually ascertainable that an increase in the disability had occurred. 38 C.F.R. §§ 3.157, 3.400.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestations of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14.

When there is a question as to which of two evaluations shall be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In determining the appropriate evaluation for musculoskeletal disability(ies), particular attention is focused on functional loss of use of the affected part(s). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.85, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.

Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability, and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016).

Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the U.S. Court of Appeals for Veterans Claims (Court) held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factor, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

The Board remanded the appeal in February 2017 and October 2018 in an attempt to obtain examinations that complied with Correia and Sharp. In an October 2020 Remand, the Board acknowledged that the May 2010 and May 2018 examinations failed to adequately comply with the requirements of Correia and Sharp, and that the October 2019 examination failed to adequately comply with the requirements of 38 C.F.R. § 4.59. Accordingly, the Board requested a retrospective opinion. The examiner was asked to opine as to the severity of the Veteran's service-connected left shoulder, right wrist, lower back, and bilateral knee conditions from February 2010. The examiner was specifically asked to indicate the range of motion, in degrees, for any additional impairment due to repetitive use over time or flare-ups. Unfortunately, the April 2021 examination also failed to comply with Correia and Sharp and so the AOJ requested another retrospective opinion. When VA requests an examination report, it is necessary to provide an adequate one or else explain to the claimant why one cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, before applying the relevant rating criteria to the currently available evidence, the Board must decide whether the July 2021 opinion complies with Correia and Sharp.

The Board finds that the July 2021 examiner attempted to comply with Correia and Sharp by explaining that joint limitations with respect to the Veteran's left shoulder, right wrist, lower back, and bilateral knees are as described in each VA examination, and that the medical records also described joint specifics. The examiner opined that: "[Ranges of motion] are specifically described in each [disability benefits questionnaire]; further, limitations are described in each DBQ; further, medical records describe joints specifics as described; there is no further specifics of the joints [ranges of motion] other than described in the actual examinations." It appears the April 2021 examiner did what could reasonably be done to provide the retrospective opinion requested in the Board's most recent remand. Unfortunately, the earlier failures to comply with VA's duty to assist necessarily resulted in the loss of certain evidence concerning range of motion during flare-ups, after repeated use over time, and on passive motion and in non-weightbearing where applicable. Accordingly, the Board has considered increased ratings, and awarded them where appropriate, as a way to avoid the possibility that inadequacies in earlier examination reports could potentially prejudice the Veteran.

1. Lumbar Spine Disability 

The claim for an increased rating for the Veteran's lumbar spine disability was received February 19, 2010; therefore, the relevant period for consideration is from one year prior, from February 19, 2009.

Currently, the Veteran has a 10 percent disability rating for his lumbar spine disability under Diagnostic Code (DC) 5242. While portions of the Rating Schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed.

Under the applicable criteria, the General Rating Formula for Diseases and Injuries of the Spine provides:

A rating of 10 percent is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of height. 38 C.F.R. § 4.71a, DC 5242.

A rating of 20 percent is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the 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. Id.

A rating of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of entire thoracolumbar spine. Id.

A rating of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id.

A rating of 100 percent is warranted where unfavorable ankylosis of the entire spine is demonstrated. Id.

Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees.

In his May 2010 correspondence, the Veteran stated the arthritis in his back had worsened. He reported being unable to lift any amount of weight without severely irritating his back. See May 2020 Statement in Support of Claim.

In May 2010, the Veteran was afforded a VA examination. During the examination the Veteran reported constant, severe, low back pain that was exacerbated by physical activity and prolonged sitting. He stated the pain comes spontaneously and is relieved by rest and NSAIDs. He reported symptoms of stiffness, fatigue, spasms, decreased motion, paresthesia, and numbness. In relation to the lumbar spine disability, he stated he has weakness of the spine, leg, and foot. He reported flare-ups; during flare-ups he experienced functional impairment which he described as pain with prolonged sitting. He reported overall functional impairment as pain with lifting.

On examination, initial range of motion testing demonstrated forward flexion to 90 degrees, with objective evidence of pain beginning at 80 degrees; extension to 30 degrees, with objective evidence of pain at 20 degrees; right lateral flexion to 30 degrees with no objective evidence of pain; left lateral flexion to 30 degrees, with objective evidence of pain at 20 degrees; and right and left rotation to 30 degrees, with no objective evidence of pain. Repetitive range of motion was possible without additional degree of limitation. There was evidence of tenderness. The examiner remarked, "the Veteran has a leg length discrepancy with subsequent left sided chronic left SI sprain. The subjective factors are persistent pain. The objective factors are tenderness, pain with range of motion, positive Patrick's and Gaenslen's sign and leg length discrepancy."

In his October 2011 VA Form 9, the Veteran stated because of back pain, he is unable to get a job that requires prolonged standing and sitting.

The Veteran submitted to a May 2018 examination. He reported a history of chronic lower back pain since 2001. His treatment plan included taking Meloxicam and using heat applications. He reported flare-ups of the thoracolumbar spine; the flare-ups occurred several times per week, to a mild to moderate level of severity. He reported functional loss or functional impairment of the lumbar spine as he was unable to sit for prolonged periods of time. The examiner diagnosed degenerative arthritis of the lumbar spine. On examination, initial range of motion testing demonstrated forward flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral flexion to 30 degree. There was objective evidence of pain on all ranges of motion. Pain noted on examination did not result in or cause functional loss. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time. The examination was not conducted during a flare-up. The examiner was unable to say without mere speculation as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time or during flare-ups as there was no conceptual or empirical basis for making such determinations without directly observing functions under these conditions. There was no guarding or muscle spasm. There were no additional factors contributing to his disability. There was no evidence of muscle atrophy, radicular pain, or any neurological abnormalities related to his disability, or IVDS. Regarding Correia, the examiner remarked passive range of motion testing was not performed, as it was not feasible to do this in a safe and reasonable manner. Non-weight bearing assessment is not applicable. There is no objective evidence of pain when the spine is in a non-weight bearing position at rest.

The Veteran submitted to another VA examination in October 2019. He reported his condition had worsened. He reported constant, aching lower back pain and being unable to tolerate prolonged sitting. His treatment plan included taking Meloxicam. He reported flare-ups of the thoracolumbar spine; the flare-ups occurred daily, lasting an average of twenty minutes to a level of severity of 5/10. He reported functional loss or functional impairment as he was unable to tolerate prolonged sitting. On examination, initial range of motion testing demonstrated forward flexion to 90 degrees, extension to 30 degrees, right and left lateral to 30 degrees, and right and left lateral rotation to 30 degrees. There was objective evidence of pain on all ranges of motion. There was objective evidence of localized tenderness or pain on palpation at the coccyx area to a moderate level of severity. The Veteran was able to perform repetitive use-testing with at least three repetitions with no additional loss of function or range of motion. Although the Veteran was not examined immediately after repetitive use over time, and the examination was not being conducted during a flare-up, the examiner stated pain, fatigue, and weakness significantly limitation functional ability with repeated use over a period of time and during flare-ups. However, the examiner did not describe the functional loss in terms of range of motion. There was no guarding or muscle spasm. There was no evidence of muscle atrophy, radicular pain, or any neurological abnormalities related to his disability, or IVDS. Regarding Correia, the examiner remarked passive range of motion testing was not performed, as it was not feasible to do this in a safe and reasonable manner. Non-weight bearing assessment is not applicable. There is no objective evidence of pain when the spine is in a non-weight bearing position at rest.

Pursuant to the October 2020 remand order, the Veteran submitted to an April 2021 VA examination. He reported flare-ups of the thoracolumbar spine; flare-ups occur variably, to a moderate level of severity; flare-ups are precipitated by absence of stretching/movement and alleviated by stretching and exercise. On examination, initial active range of motion testing demonstrated forward flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation 30 degrees. The Veteran was unable to perform passive range of motion; the examiner explained, "unable to do passive range of motion due to positioning limitations and resting continued muscular tone of the lumbar paraspinal groups." Range of motion itself did not contribute to functional loss. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions. The Veteran was not examiner immediately after repeated use over time; he was not being examined during a flare-up. The Veteran had no guarding or tenderness. There was no evidence of muscle atrophy, radicular pain, or any neurological abnormalities related to his disability, or IVDS.

Given the totality of the evidence when considering the Veteran's competent and credible reports of limited thoracolumbar spine motion and pain, combined with his consistent reports of flare-ups, the Board finds a 20 percent rating, but no higher, is warranted from February 19, 2010.

In reviewing the evidence, the Board has considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40, DeLuca, 8 Vet. App. 202. The Board has also considered the effects of less movement than normal, weakened movement, fatigability, interference with sitting and standing, and deformity. 38 C.F.R. § 4.45. The Board accepts the Veteran's competent and credible assertions that his thoracolumbar spine is painful and as described in examinations, he suffers from additional loss of motion and pain during flare-ups.

The May 2010 QTC examination provides objective evidence that the Veteran's forward flexion was limited to 80 degrees. The QTC examiner stated the Veteran had tenderness, pain with range of motion, positive Patrick's and Gaenslen's signs, and leg length discrepancy. The May 2018 LHI examiner noted the Veteran's lumbar spine disability had progressed. The Veteran MRI of the lumbar spine showed mild degenerative changes of the lumbar facet joints; mild degenerative disc disease L-2, L-3, L3-L4. The October 2019 LHI examiner found that pain, fatigue, and weakness significantly limited functional ability with repeated use over time and during flare-ups. The April 2021 QTC examiner noted the Veteran's reports of flare-ups to a moderate level of severity, lasting a variable duration, precipitated by absence of stretching/movement, and alleviated by stretching and exercise.

Given this, and resolving all doubt in favor of the Veteran, the evidence demonstrates limited flexion that more nearly approximates forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees, since February 19, 2010. 

However, the Board finds the Veteran is not entitled to a rating in excess of 20 percent at any time during the appeal period. A rating in excess of 20 percent is not warranted because the 40 percent evaluation requires 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, DC 5242. The Board acknowledges the Veteran's assertions that his service-connected lumbar spine disability warrants a higher evaluation. In determining the actual degree of disability however, contemporaneous medical records and an objective examination by a health professional are more probative of the degree of the Veteran's impairment. This is particularly so where the rating criteria require analysis of the clinically significant symptoms and objectively measurable criteria, like identification of ankylosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Moreover, there is no contention or indication that he is entitled to a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes. The examiners have indicated that the Veteran does not have a diagnosis of IVDS, and he has not had any incapacitating episodes requiring prescribed bedrest.

Lastly, the Board notes that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provides for separate rating(s) for associated neurologic impairment. The examiners have specifically determined that the Veteran did not have any radicular pain or any other signs or symptoms of radiculopathy as muscle strength, reflexes, and sensory examinations were all normal. As such, separate ratings for neurological findings are not warranted.

In sum, the most probative evidence establishes that the Veteran's service-connected lumbar spine disability was manifested by forward flexion of greater than 30 degrees but no greater than 60 degrees, since February 19, 2010. To the extent that the Veteran seeks an even higher rating, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49.

2. Left and Right Knee Patellar Tendonitis

The claim for an increased rating for the Veteran's left knee disability was received January 6, 2010; therefore, the relevant period for consideration is from one year prior, from January 6, 2009.

The claim for an increased rating for the Veteran's right knee disability was received February 19, 2010; therefore, the relevant period for consideration is from one year prior, from February 19, 2009.

The Veteran has a 10 percent disability rating for his left knee disability under Diagnostic Code (DC) 5024. The Veteran has a 10 percent disability rating for his right knee disability under DC 5024. The 10 percent ratings were assigned for painful or limited motion of the knee, a major joint.

Effective February 7, 2021, DC 5024 was revised from tenosynovitis alone, to tenosynovitis, tendinitis, tendinosis, or tendinopathy.

The Note for DC 5024 directs that DCs 5013 through 5024 should be evaluated as degenerative arthritis, based on limitation of motion of the affected parts.

DC 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003.

In the absence of limitation of motion, a rating of 20 percent is warranted with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Id.

In the absence of limitation of motion, a rating of 10 percent is warranted with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1): the 20 percent and 10 percent ratings based on X-ray findings, will not be combined with ratings based on limitation of motion. Note (2): the 20 percent and 10 percent ratings based on X-ray findings, will not be utilized in rating conditions listed under diagnostic codes 5013 and 5024, inclusive. Id.

The general rating schedules for limitation of motion of the knee are set forth in 38 C.F.R. § 4.71a, DCs 5260 and 5261. While portions of the Rating Schedule addressing the musculoskeletal system were revised effective February 7, 2021, these diagnostic codes were not changed.

Under DC 5260, limitation of flexion of leg with flexion limited to 60 degrees warrants a 0 (zero) percent rating; with flexion limited to 45 degrees warrants a 10 percent rating; with flexion limited to 30 degrees warrants a 20 percent rating; and with flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260.

Under DC 5261, limitation of extension of leg with extension limited to 5 degrees warrants a 0 (zero) percent rating; with extension limited to 10 degrees warrants a 10 percent rating; with extension limited to 15 degrees warrants a 20 percent rating; with extension limited to 20 degrees warrants a 30 percent rating; with extension limited to 30 degrees warrants a 40 percent rating; and with extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261.

Flexion of the knee to 140 degrees is considered full, and extension to 0 degrees is considered full. 38 C.F.R. § 4.71a, Plate II.

In his May 2010 correspondence, the Veteran stated the arthritis in his left and right knee had worsened. He reported using a cane for his left knee and being unable to lift any amount of weight without severely irritating his knees. See May 2020 Statement in Support of Claim.

In May 2010, the Veteran was afforded a QTC examination. During the examination the Veteran reported the following symptoms: weakness, stiffness, swelling, giving way, lack of endurance, fatigability, tenderness, and pain. He denied heat, redness, locking, deformity, drainage, effusion, subluxation, and dislocation in both knees. He reported experiencing flare-ups as often as one (1) time per day, each time lasting for 16 hours; the severity level at 8 of 10. The flare-ups are precipitated by physical activity and alleviated by rest and NSAIDs. During the flare-ups he experiences functional impairment which is described as pain with bending and lifting. He reported overall functional impairment: pain with bending, squatting, and climbing. The examiner noted the Veteran walks with an antalgic gait; the abnormal gait is due to left knee pain. For ambulation he requires a cane because of left knee pain.

Physical examination of the left knee revealed range of motion for flexion was measured from 0 degrees to 140 degrees, and extension was normal to 0 degrees with no objective evidence of pain with active motion on flexion or extension. Repetitive range of motion was possible without additional degree of limitation. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. There was tenderness and parapatellar pain with duck walk. Left knee stability tests are within normal limits for: anterior and posterior cruciate ligaments, medial and lateral collateral ligaments, and the medial and lateral meniscus. There was no subluxation on the left.

Physical examination of the right knee revealed range of motion for flexion was measured from 0 to 140 degrees, and extension was normal to 0 degrees with no objective evidence of pain with active motion on flexion or extension. Repetitive range of motion was possible without additional degree of limitation. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. There was tenderness and parapatellar pain with duck walk. Right knee stability tests are within normal limits for: anterior and posterior cruciate ligaments, medial and lateral collateral ligaments, and the medial and lateral meniscus. There was no subluxation on the right.

Radiographs of the left knee demonstrated no evidence for fracture or other significant bone, joint or soft tissue abnormality; radiographs of the right knee demonstrated no evidence for fracture or other significant bone, joint or soft tissue abnormality. The examiner remarked, the effect of the condition on the claimant's usual occupation is pain with lifting, prolonged standing, walking, squatting, climbing, and bending. The effect of on the claimant's daily activity is pain with prolonged standing, walking, squatting, climbing, and bending.

In his October 2011 VA Form 9, the Veteran stated he has osteoarthritis in his knees. He stated his knees swell from time to time and this results in a loss of range of motion. Additionally, his knee disabilities affect his mobility, and he requires the use of a knee brace and cane.

During the May 2018 VA examination, the Veteran reported a history of chronic bilateral knee pain since 2001. He described continued achiness with the feeling of needing to "pop" his knees; intermittent sharp, grinding pains with certain movements. His treatment plain included taking Meloxicam and using heat applications. He reported daily flare-ups of the left and right knee, lasting a few hours per day, to a severe level of severity. He reported functional loss or functional impairment of the left and right knee as he was unable to stand for prolonged periods of time. The examiner noted Veteran's diagnosis had changed to include bilateral knee arthritis. As rationale, the examiner stated the wearing down of the protective tissue at the ends of bones (cartilage) occurs gradually and worsens over time, thus the diagnosis of bilateral knee arthritis.

Physical examination of the left knee revealed range of motion for flexion was measured from 0 degrees to 140 degrees, and extension was normal to 0 degrees. There was objective evidence of pain on flexion and extension. Pain noted on examination resulted in or caused functional loss. There was evidence of localized tenderness or pain on palpation of the joint or associated soft tissue; the Veteran reported to pain with range of motion exercises to anterior knee and with palpation. There was no evidence of pain with weight bearing. There was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time. The examination was not conducted during a flare-up. The examiner was unable to say without mere speculation as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time or during flare-ups as there was no conceptual or empirical basis for making such determinations without directly observing functions under these conditions. Muscle strength testing of left knee flexion and extension was normal (5/5). There was no muscle atrophy. There was no ankylosis. There was no history of recurrent subluxation. Joint stability testing was normal. 

Physical examination of the right knee revealed range of motion for flexion was measured from 0 to 140 degrees, and extension was normal to 0 degrees with no objective evidence of pain with active motion on flexion or extension. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight bearing. There was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time. The examination was not conducted during a flare-up. The examiner was unable to say without mere speculation as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time or during flare-ups as there was no conceptual or empirical basis for making such determinations without directly observing functions under these conditions. Muscle strength testing of right knee flexion and extension was normal (5/5). There was muscle atrophy. There was no ankylosis. There was no history of recurrent subluxation. Joint stability testing was normal. The examiner confirmed the Veteran had a right knee meniscus condition (meniscal tear) with frequent episodes of joint pain, but no locking or effusion. The examiner noted, MRI scan of right knee on December 24, 2003 showed right radial tear of the medial meniscus. The Veteran required regular use of a brace because of right knee instability. Regarding Correia, the examiner remarked there is objective evidence of pain on passive range of motion testing. There is no objective evidence of pain when the joint is used in non-weight bearing. Assessment of the opposing/unclaimed joint is not applicable.

During the October 2019 VA examination, the Veteran reported a worsening of his bilateral knee pain. He described chronic aching pain and reported wearing a right knee brace. His treatment plain included taking Meloxicam. He reported daily flare-ups of the left and right knee, lasting all day, to a level of severity of 8 of 10. He reported functional loss or functional impairment of the left and right knee as he was unable to tolerate running or putting weight on his knees when carrying heavy items.

Physical examination of the left knee revealed range of motion for flexion was measured from 0 degrees to 140 degrees, and extension was normal to 0 degrees with no objective evidence of pain with motion. There was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight bearing. There was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. Although the Veteran was not examined immediately after repetitive use over time, the examiner stated pain, fatigue, and weakness significantly limit functional ability. The examiner described the functional loss in terms of range of motion: flexion to 140 degrees, and extension to 0 degrees. Additionally, although the examination was not being conducted during a flare-up, the examiner stated pain, fatigue, fatigue, and weakness significantly limit functional ability. The examiner described the functional loss in terms of range of motion: flexion to 120 degrees, and extension to 0 degrees. Muscle strength testing of left knee flexion and extension was normal (5/5). There was no muscle atrophy. There was no ankylosis. There was no history of recurrent subluxation. Joint stability testing was normal. 

Physical examination of the right knee revealed range of motion for flexion was measured from 0 to 140 degrees, and extension was normal to 0 degrees with no objective evidence of pain with motion. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight bearing. There was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. Although the Veteran was not examined immediately after repetitive use over time, the examiner stated pain, fatigue, and weakness significantly limit functional ability. The examiner described the functional loss in terms of range of motion: flexion to 130 degrees, and extension to 0 degrees. Additionally, although the examination was not being conducted during a flare-up, the examiner stated pain, fatigue, weakness, and incoordination significantly limit functional ability. The examiner described the functional loss in terms of range of motion: flexion to 120 degrees, and extension to 0 degrees. Muscle strength testing of right knee flexion and extension was normal (5/5). There was muscle atrophy. There was no ankylosis. There was no history of recurrent subluxation. Joint stability testing was normal. The examiner confirmed the Veteran had a right knee meniscus condition (meniscal tear) with frequent episodes of joint pain, but no locking or effusion. The Veteran required regular use of a brace because of right knee meniscal tear, right knee tendonitis and arthritis. Regarding Correia, the examiner remarked there no objective evidence of pain on passive range of motion testing. There is no objective evidence of pain when the joint is used in non-weight bearing.

The Veteran submitted to another VA examination in April 2021. He reported frequent flare-ups, to a moderate level of severity, lasting for variable duration. The flare-ups are precipitated by squattling/kneeling, and running, and alleviated by rest, exercise, and brace wear for support. He reported functional loss or functional impairment of the left and right knee as he had limitation with squatting, kneeling, and running.

Physical examination of the left knee revealed active range of motion for flexion was measured from 0 degrees to 140 degrees, and extension was normal to 0 degrees with objective evidence of pain with flexion. Passive range of motion demonstrated the same range of motion values. There was evidence of pain with weight-bearing and active motion, not resulting in/causing functional loss. There was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time. The examination was not conducted during a flare-up. The examiner stated procured evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination would significantly limit functional ability with repeated use over time, or with flare-ups. There was no muscle atrophy. There was no ankylosis. There was no recurrent subluxation or persistent instability. There was no recurrent patellar instability. Radiographs of the left knee demonstrated moderate to severe narrowing of both compartment consistent with degenerative change.

Physical examination of the right knee revealed range of motion for flexion was measured from 0 to 140 degrees, and extension was normal to 0 degrees with objective evidence of pain with flexion. Passive range of motion demonstrated the same range of motion values. There was evidence of pain with weight-bearing and active motion, not resulting in/causing functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time. The examiner stated procured evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination would significantly limit functional ability with repeated use over time. Although the examination was not being conducted during a flare-up, the examiner the procured evidence suggests pain significantly limits functional ability. The examiner described the functional loss in term of range of motion: flexion to 120 degrees, and extension to 0 degrees. There was no muscle atrophy. There was no ankylosis. There was no recurrent subluxation or persistent instability. There was no recurrent patellar instability. No meniscal condition was noted. The Veteran did not require the use of assistive devices. Radiographs of the right knee demonstrated moderate to severe narrowing of both compartment consistent with degenerative change. 

Limitation of Motion: Left Knee

As noted above, the Veteran's left knee disability is currently rated as 10 percent disabling under DC 5024 (tenosynovitis). The 10 percent rating was assigned based on painful or limited motion of the knee.

Given the totality of the evidence, when considering the Veteran's competent and credible report of limited left knee motion, stiffness, and pain, combined with his consistent reports of flare-ups, the Board finds a 20 percent rating, but no higher, is warranted from January 6, 2010.

In reviewing the evidence, the Board has considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40, DeLuca, 8 Vet. App. 202. The Board has also considered the effects of pain, weakened movement, and excess fatigability under 38 C.F.R. § 4.45. The Board accepts the Veteran's competent and credible assertions that his left knee is painful and as described in the examinations, he suffers from additional loss of motion and pain during flare-ups. The evidence demonstrates limitation of motion that more nearly approximates flexion limited to 30 degrees and limitation of extension limited to 0 degrees. As such, a rating of 20 percent, but no higher, is warranted.

The Board does not find, however, that a rating higher than 20 percent for limitation of motion is warranted at any time during the appeal period. Even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements would not result in limitation of motion more nearly approximating flexion limited to 15 degrees, or extension limited to 5 degrees.

The Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the  holding in DeLuca and Mitchell. However, increased evaluation for the Veteran's left knee disability is not warranted on the basis of functional loss due to pain or weakness or excess fatigability, as his symptoms are supported by pathology which does not indicate that a rating higher than 20 percent is warranted. Although the Veteran's painful motion is significant, there is no indication that it has resulted in further limitation of motion that what was shown on examination, and without clinical medical evidence indicating further functional limitation, the Board is unable to find that the Veteran's pain is so disabling as to actually, or effectively, limit flexion or extension of the left knee to such an extent as to warrant assignment of a higher or additional rating.

Limitation of Motion: Right Knee

As noted above, the Veteran's right knee disability is currently rated as 10 percent disabling under DC 5024. The 10 percent rating was assigned for painful or limited motion of the knee.

Given the totality of the evidence, when considering the Veteran's competent and credible report of limited left knee motion, stiffness, and pain, combined with his consistent reports of flare-ups, the Board finds a 20 percent rating, but no higher is warranted from February 19, 2010.

In reviewing the evidence, the Board has considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40, DeLuca, 8 Vet. App. 202. The Board has also considered the effects of pain, weakened movement, and excess fatigability under 38 C.F.R. § 4.45. The Board accepts the Veteran's competent and credible assertions that his left knee is painful and as described in the examinations, he suffers from additional loss of motion and pain during flare-ups. The evidence demonstrates limitation of motion that more nearly approximates flexion limited to 30 degrees and limitation of extension limited to 0 degrees. As such, a rating of 20 percent, but no higher, is warranted.

The Board does not find, however, that a rating higher than 20 percent for limitation of motion is warranted at any time during the appeal period. Even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements would not result in limitation of motion more nearly approximating flexion limited to 15 degrees, or extension limited to 5 degrees.

The Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holding in DeLuca and Mitchell. However, increased evaluation for the Veteran's left knee disability is not warranted on the basis of functional loss due to pain or weakness or excess fatigability, as his symptoms are supported by pathology which does not indicate that a rating higher than 20 percent is warranted. Although the Veteran's painful motion is significant, there is no indication that it has resulted in further limitation of motion that what was shown on examination, and without clinical medical evidence indicating further functional limitation, the Board is unable to find that the Veteran's pain is so disabling as to actually, or effectively, limit flexion or extension of the left knee to such an extent as to warrant assignment of a higher or additional rating.

Separate Rating for Right Knee Meniscal Tear

Based on the above, the assignment of a separate 20 percent rating under DC 5258 is warranted for right knee medial meniscal tear. December 2003 MRI scan of the right knee showed right radial tear of the medial meniscus.

In determining whether a separate rating is warranted under DC 5258, the Board must decide whether separate and distinct symptoms exist or whether there is overlapping symptomatology such that only a single rating is appropriate. The critical element in permitting the assignment of more than one evaluation under different diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of another condition. See 38 C.F.R. § 4.14; see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (evaluation of a knee disability under the limitation of motion diagnostic codes does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under DCs 5258 or 5259, and vice versa).

Under DC 5258, a maximum 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking", pain, and effusion into the joint.

While portions of the Rating Schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed.

During the May 2018 examination, the examiner noted the right knee meniscal tear. The examiner indicated upon review of the December 2003 MRI scan of the right knee, the Veteran has a right radial tear of the meniscus which manifest by "popping" and frequent episodes of grinding joint pain, which causes interference with walking, standing, lifting, kneeling, and squatting.

During the October 2019 examination, the examiner noted the right knee meniscal tear. The examiner noted the Veteran's complaints of constant right knee pain with popping sounds with instability and posterior knee swelling.

Although a separate rating under DC 5258 can constitute impermissible pyramiding, the Board finds that in the facts of this specific case, a separate rating under DC 5258 is not precluded. Lyles, 29 Vet. App. 107. The Board finds a separate rating under DC 5258 for the right knee disability is warranted for the Veteran's other reported symptoms. Specifically, the Veteran's meniscal condition manifested symptoms distinguishable from the criteria under Diagnostic Code 5260 and 5261, including: popping, "locking," and effusion into the joint.

Separate Ratings for Bilateral Knee Instability

Prior to the February 7, 2021 amendments, DC 5257 provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee that is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a.  

The words "slight", "moderate", and "severe" used in DC 5257 are not defined in the Rating Schedule. 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.

The Board does note, for reference and illustrative purposes only, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). A synonym for "mild" is "slight," which is defined as small in size, degree, or amount. Id. at 1038. The definitions for "moderate" include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" include extremely intense. Id. at 1012.

Effective February 7, 2021, DC 5257 provides separate criteria for ratings based on recurrent subluxation or lateral instability and patellar instability. 

For recurrent subluxation or lateral instability, a 10 percent rating is warranted for a 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. A 20 percent rating is warranted for either (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribed either a brace and/or assistive device; 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. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. For patellar instability, 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. 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 one of the following: A brace, cane, or walker. A 30 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 and either a cane or a walker.

The Board finds that a separate 10 percent rating for each knee is warranted under the old criteria for Diagnostic Code 5257 based on slight instability for the entire appeal period. VA examinations do not contain objective medical evidence of instability, but the Veteran reported as early as the May 2010 VA examination that his knee gives way. He also uses a brace. The Veteran is competent to describe symptoms associated with knee instability and the Board finds him credible. The Veteran's reports of right and left knee instability are probative evidence of slight instability. The Board finds that the evidence does not more nearly approximate moderate instability. The VA examination reports did not show any instability on clinical stability testing, and muscle strength has been normal throughout the appeal period. Even with due consideration to the Veteran's lay descriptions of symptoms associated with his knee, the Board finds that the bilateral knee disability does not more nearly approximate moderate instability under Diagnostic Code 5257.

The Board may not apply the new regulations to evidence dated prior to February 7, 2021. The only evidence dated after the criteria became effective is the April 2021 VA examination, and the examiner found no recurrent subluxation or persistent instability and no recurrent patellar instability. Thus, a separate or higher rating from April 2021 is not warranted under the new criteria.

Finally, the Veteran is not entitled to a higher or separate rating under DCs 5256, 5259, 5262, and 5263. There is no indication of ankylosis, removal of semilunar cartilage, tibia and fibula impairment, or genu recurvatum.

Left Shoulder Disability. 

The claim for an increased rating for the Veteran's left shoulder disability was received February 19, 2010; therefore, the relevant period for consideration is from one year prior, from February 19, 2009.

Currently, the Veteran has a 20 percent rating for his left shoulder disability under Diagnostic Code (DC) 5201. In general, disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, DCs 5200 through 5203. A distinction is made between major (dominant) and minor (non-dominant) musculoskeletal groups for rating purposes. 38 C.F.R. § 4.69.

In this case, the record clearly indicates that the Veteran is right hand dominant. As such the left shoulder disability is rated as a minor joint.

Under DC 5201 (minor), a rating of 20 percent is warranted for limitation of motion at the shoulder level (e.g., flexion to 90 degrees). A rating of 20 percent is warranted for limitation of motion midway between side and shoulder level. A rating of 30 percent is warranted for limitation of motion to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201.

Effective February 7, 2021, clarifying amendments were made to DC 5201.

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5100(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

Under the new criteria, under DC 5201 (minor), a rating of 20 percent is warranted for limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees). A rating of 20 percent is warranted for limitation of motion midway between side and shoulder level (flexion and/or abduction limited to 40 degrees). A rating of 30 percent is warranted for limitation of motion of flexion and/or abduction limited to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201.

DC 5201 does not provide separate ratings for limitations of flexion, extension, abduction, and rotation, but rather permits only a single rating for limitation of motion of an arm. Yonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013).

For VA compensation purposes, normal range of motion of the shoulder is forward elevation (flexion) to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71a, Plate I.

After review of the evidence, lay and medical, the Board finds that, for the entire rating period on appeal, the criteria for a rating in excess of 20 percent for the left shoulder disability has not been met or more nearly approximated. Throughout the period on appeal, the left shoulder disability has been manifested, at worst, by limitation of motion of the arm to 100 degrees, with consideration of functional loss due to pain, after repeated use, and during flare-ups.

During the May 2010 examination the Veteran reported the following symptoms: tenderness, pain and movements and popping. He reported experiencing flare-ups as often as one (1) time per day, and each time lasting for 16 hours; the severity level at 3. The flare-ups are precipitated by physical activity and are alleviated by rest and NSAIDs. On examination, initial range of motion testing demonstrated flexion to 180 degrees with objective evidence of pain beginning at 110 degrees; abduction to 180 degrees with objective evidence of pain beginning at 80 degrees; external rotation to 90 degrees; and internal rotation to 90 degrees. Repetitive range of motion was possible without additional degree of limitation. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Radiographs of the left clavicle demonstrated evidence of a prior fracture of the left clavicle which shows excellent healing with very minimal deformity. The examiner remarked, the Veteran's fractured clavicle is quiescent, he also has rotator cuff tendonitis/bursitis. The subjective favors are pain with lifting and overhead activity; objective favors are tenderness, positive empty can and pain with rotator cuff motion against resistance.

In his October 2011 VA Form 9, the Veteran reported limited range of motion in his left shoulder due to pain, and all shoulder activity induces a burning sensation.

During the May 2018 examination, the Veteran reported left shoulder pain, continual achiness with intermittent sharpness, and burning with reaching overhead. His treatment plan included Meloxicam and heat application. The Veteran reported flare-ups described as shoulder pain causes limitations while working and being unable to perform certain exercises due to left shoulder pain. He reported functional loss or functional impairment as he is unable to perform push-ups and is limited with reaching overhead. The examiner noted Veteran's diagnosis had changed to include complete tear of the rotator interval and full thickness tear of the anterior labrum. The examiner opined there was no concrete relationship or nexus between the Veteran's status post left clavicle fracture and recent findings for left rotator cuff interval and labral tear evident at this time. The examiner concluded, it is difficult to say whether the Veteran's initial injury caused weakness of the muscles, tendons, and ligaments surrounding the shoulder region.

On examination, initial range of motion testing demonstrated flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. There was objective evidence of pain on all ranges of motion. Pain noted on examination did not result in or cause functional loss. There was objective evidence of localized tenderness or pain on palpation of the joint. There was no evidence of pain with weight bearing. There was objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time. The examination was not conducted during a flare-up. The examiner was unable to say without mere speculation as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time or during flare-ups as there was no conceptual or empirical basis for making such determinations without directly observing functions under these conditions. Muscle strength testing of shoulder forward flexion and abduction was normal (5/5). There was no muscle atrophy. There was no ankylosis. A rotator cuff condition was suspected. There was no history of mechanical symptoms, no history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral joint), and crank apprehension and relocation test was negative. The Veteran was found to have an impairment of the clavicle or scapula, described as status post left clavicle fracture. The examiner noted the condition did not affect the range of motion of the shoulder (glenohumeral joint). There was tenderness on palpation of the acromioclavicular (AC) joint. Radiographs of the left clavicle demonstrated remodeling distal clavicle from old-healed fracture. Regarding Correia, the examiner remarked there is objective evidence of pain on passive range of motion testing. There is objective evidence of pain when the joint is used in non-weight bearing. The opposing joint is undamaged with no exam abnormalities.

During the October 2019 examination, the Veteran reported constant left shoulder pain. He described the pain as intermittent stabbing and burning resulting in him barely being able to lift his left arm. His treatment plan included taking Meloxicam and home stretching. He reported flare-ups of the left shoulder occurring a few times a month; it is sharp, burning pain to a level of 8 of 10, lasting 10 minutes. He reported functional loss or functional impairment as being unable to perform push-up. On examination, initial range of motion testing demonstrated flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. There was no objective evidence of pain on motion, no evidence of pain with weight bearing, and no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. Although the Veteran was not examined immediately after repetitive use over time, the examiner stated pain, fatigue, and weakness significantly limit functional ability. The examiner described the functional loss in terms of range of motion: flexion to 170 degrees, abduction to 170 degrees, external rotation to 80 degrees, and internal rotation to 80 degrees. Additionally, although the examination was not being conducted during a flare-up, the examiner stated pain, fatigue, weakness, and incoordination significantly limit functional ability. The examiner described the functional loss in terms of range of motion: flexion to 100 degrees, abduction to 100 degrees, external rotation to 50 degrees, and internal rotation to 50 degrees. Muscle strength testing of shoulder forward flexion and abduction was normal (5/5). There was no muscle atrophy. There was no ankylosis. A rotator cuff condition was suspected, and Hawkins' impingement test was positive. There was no history of mechanical symptoms, no history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral joint), and crank apprehension and relocation test was negative. The Veteran was found to have an impairment of the clavicle or scapula. The examiner noted the condition did not affect the range of motion of the shoulder (glenohumeral joint). There was tenderness on palpation of the AC joint. Cross-body adduction test was negative. Regarding Correia, the examiner remarked there is no objective evidence of pain on passive range of motion testing. There is no objective evidence of pain when the joint is used in non-weight bearing.

During the April 2021 examination, the Veteran reported a history of motorcycle accident in 1999 with injury to left clavicle, being treated conservatively without current residuals. He did not report flare-ups or having any functional loss or functional impairment. On examination, initial active range of motion testing demonstrated flexion to 180 degrees, abduction to 180 degrees, internal rotation to 90 degrees, and external rotation to 90 degrees. Passive range of motion testing revealed the same values. There was no objective evidence of pain on motion, no evidence of pain with weight bearing, and no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time. The examination was not conducted during a flare-up. The examiner stated procured evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination would significantly limit functional ability with repeated use over time, or with flare-ups. There was no muscle atrophy. There was no ankylosis. A rotator cuff condition was not suspected. There were no mechanical symptoms and no current residuals of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral joint). The Veteran was not found to have a clavicle, scapula, AC joint, sternoclavicular joint condition, or other impairment. There was no condition or impairment of the humerus.

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to an increased evaluation for his service-connected left shoulder disability.

In this regard, the Veteran has not demonstrated limitation of motion of the left arm to 25 degrees. The Board finds that the rating currently assigned considers the pain on movement that the Veteran experiences in his left shoulder that affects his functional ability, to include any increased functional impairment during flare-ups or following repeated use over time. The Board has considered the criteria for a higher rating, however, a close review of the objective medical evidence of record reveals that throughout the claims period, the Veteran's left shoulder disability, at worst, was limited to 100 degrees of flexion and 100 degree of abduction, even considering flare-ups, as noted during the October 2018 examination. Therefore, as there is no indication that the Veteran's left shoulder range of motion to be limited to 25 degrees, the Board must find that the criteria for a rating in excess of 20 percent is not met, and an increased rating is not warranted under DC 5201.

While the Veteran has essentially stated that he has reduced motion in his left shoulder, he has not described a range of motion less than those found on examinations. In this regard, he reported that he experienced chronic daily pain with limitation of motion due to his left shoulder. However, the Veteran's statements do not show the requisite limitation of motion necessary for higher ratings than those assigned. To this end, treatment records also do not show greater limitations of motion than the above examination findings. Given the above, even when considering the left shoulder's impact on physical activities, higher ratings are not warranted based on limitation of motion. 38 C.F.R. § 4.71a, DCs 5200-5203.

Regarding other DCs, the Board notes that a higher rating under the other applicable diagnostic codes are also not warranted. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). To that end, the Board finds that DCs 5200 and 5203 are not applicable. There is no evidence of ankylosis of the Veteran's left shoulder as required under DC 5200. Indeed, VA examinations note no history or objective evidence of ankylosis, and no VA treatment record provides any evidence that ankylosis had been found at any point during the claims period. As such, without a finding of ankylosis, DC 5200 is not for application.

Likewise, regarding DC 5203, the Board notes that the Veteran's current 20 percent is already the maximum schedular rating possible under this diagnostic code for the non-dominant (minor) side. As the Veteran is right-handed, his left is considered his non-dominant side, and as such, a higher rating under this diagnostic code is not possible.

Finally, regarding DC 5202, there is no evidence of record of recurrent dislocation with guarding of all arm movements, fibrous union of the humerus, nonunion of the humerus, or loss of head of the humerus. Under this diagnostic code, and for the non-dominant shoulder, a higher rating in excess of 20 percent is only warranted if there is a finding of fibrous union of the humerus. A close review of the examinations and VA treatment records reveal no evidence of such impairment to the humerus identified at any point during the claims period. The examinations explicitly and consistently have noted no relevant impairment to the humerus. As such, there is no evidence of impairment to the humerus to meet the criteria under DC 5202. As such, the Board must find this diagnostic code is also not for application.

The Board acknowledges the Veteran's statements that his left shoulder disability is more severe than evaluated. The Veteran is competent to report his own symptoms and has presented credible statements in this regard. Layno, 6 Vet. App. 465. The Board finds, however, that neither the Veteran's statements nor medical evidence demonstrates that the criteria for a higher rating than that assigned has been met. The Board also acknowledges that the Veteran's VA treatment records note complaints of and treatment for the left shoulder. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. 

Based on the foregoing, the Board concludes that an increased evaluation in excess of 20 percent is not warranted for the Veteran's left shoulder disability for the entire period on appeal, under both the old and revised rating criteria. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a.

3. Right Wrist Disability.

The claim for an increased rating for a right wrist disability was received February 19, 2010; therefore, the relevant period for consideration is from one year prior, from February 19, 2009.

Currently, the Veteran has a 10 percent disability rating for his right wrist disability under Diagnostic Code (DC) 5215. DCs 5214 and 5215 assign disability ratings based on limitation of motion of the wrist. A distinction is made between major (dominant) and minor (non-dominant) musculoskeletal groups for rating purposes. 38 C.F.R. § 4.69.

As noted above, the record clearly indicates that the Veteran is right hand dominant. As such the right wrist disability is rated as a major joint.

While portions of the Rating Schedule addressing the musculoskeletal system were revised effective February 7, 2021, these diagnostic codes were not changed.

Under DC 5215 (major), a rating of 10 percent is warranted for limitation of motion of the wrist manifested by dorsiflexion less than 15 degrees. A rating of 10 precent is warranted for limitation of motion of the wrist manifested by palmar flexion limited in line with the forearm. 38 C.F.R. § 4.71a, DC 5215.

Higher ratings are assignable under DC 5214 for ankylosis (major). A rating of 30 percent is warranted for favorable ankylosis of the wrist in 20 degrees to 30 degrees of dorsiflexion. A rating of 40 percent is warranted for ankylosis causing any other position, except favorable. A maximum rating of 50 percent is warranted for unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation. (Note: Extremely unfavorable ankylosis will be rated as loss of use of hands under diagnostic code 5125.) 38 C.F.R. § 4.71a, DC 5214.

Normal range of motion of the wrist includes dorsiflexion (extension) from zero to 70 degrees, palmar flexion from zero to 80 degrees, ulnar deviation from zero to 45 degrees, and radial deviation from zero to 20 degrees. 38 C.F.R. § 4.71a, Plate I.

In his May 2010 correspondence, the Veteran stated the arthritis in his right wrist, knees, and back have all worsened. He reported using a cane for his left knee, and because he utilizes the cane in his right hand, his wrist has furthered suffered. He reported his wrist and shoulder make simple activities such as writing, typing, and doing anything about his head extremely difficult and painful. See May 2020 Statement in Support of Claim.

In May 2010, the Veteran submitted to a VA examination. During the examination the Veteran reported the following symptoms: heat, redness, giving way, lack of endurance, fatigability, tenderness, pain, and aching. He reported experiencing flare-ups as often as one (1) time per day, and each time lasting for 16 hours; the severity level at 5. The flare-ups are precipitated by physical activity and repetitive action. The flare-ups occur spontaneously and are alleviated by rest, NSAIDs, and by wrist brace. During the flare-ups he experiences functional impairment which is described as pain with pushing and lifting. He reported overall functional impairment: pain with repetitive use, pushing, and pulling.

On examination, initial range of motion testing demonstrated dorsiflexion to 70 degrees, with objective evidence of pain at 60 degrees; palmar flexion to 80 degrees, with objective evidence of pain at 70 degrees; radial deviation to 20 degrees; and ulnar deviation to 45 degrees. Repetitive range of motion was possible without additional degree of limitation. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Radiographs of the wrist demonstrated no evidence for fracture or other significant bone or soft tissue abnormality. The examiner remarked, the Veteran's subjective factors are pain with pushing and lifting; objective factors are tenderness and pain with range of motion.

In his October 2011 VA Form 9, the Veteran stated he has limited range of motion in his wrist due to pain.

During a May 2018, the Veteran submitted to another VA examination. He reported continual right wrist pains, achiness, and intermittent sharpness with twisting. His treatment plan included Meloxicam and heat application. The Veteran reported flare-ups described as needing to compensate more to left hand/wrist due to right wrist pains. He reported functional loss or functional impairment as he is unable to push-up or perform any 'pushing' movements. On examination, initial range of motion testing demonstrated palmar flexion to 80 degrees, dorsiflexion to 70 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees. There was objective evidence of pain on all ranges of motion. Pain noted on examination did not result in or cause functional loss. There was objective evidence of localized tenderness or pain on palpation of the joint; the Veteran reported to pain via verbalization to right medial wrist. There was no evidence of pain with weight bearing. There was no evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time. The examination was not conducted during a flare-up. The examiner was unable to say without mere speculation as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time or during flare-ups as there was no conceptual or empirical basis for making such determinations without directly observing functions under these conditions. Muscle strength testing of wrist flexion and extension was normal (5/5). There was no ankylosis. Radiographs of the wrist demonstrated no evidence for fracture or other significant bone or soft tissue abnormality; no DJD or arthritis seen. 

The Veteran submitted to another VA examination in October 2019. He reported constant right wrist pain. His treatment plan included taking Meloxicam. He reported flare-ups of the right wrist occurring three (3) or more time a week; pain level rises to a level of 8 of 10, with the pain lasting 30 minutes to an hour. He reported functional loss or functional impairment as being unable to use his right hand for tools. The examiner remarked, the Veteran's diagnosis changed to "right wrist internal derangement" because there was no evidence of fracture or healed fracture found on historical x-ray results. On examination, initial range of motion testing demonstrated palmar flexion to 80 degrees, dorsiflexion to 70 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees. There was objective evidence of pain on all ranges of motion. Pain noted on examination did not result in or cause functional loss. There was no evidence of pain with weight bearing. There was no evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. Although the Veteran was not examined immediately after repetitive use over time, and the examination was not being conducted during a flare-up, the examiner stated pain, fatigue, and weakness significantly limit functional ability with repeated use over time and with flare-ups. The examiner described the functional loss (with repeated use over a period of time) in terms of range of motion: palmar flexion to 70 degrees, dorsiflexion to 60 degrees, ulnar deviation to 40 degrees, and radial deviation to 15 degrees; the examiner described the functional loss (with flare-ups) in terms of range of motion: palmar flexion to 70 degrees, dorsiflexion to 60 degrees, ulnar deviation to 35 degrees, and radial deviation to 15 degrees. There were no additional factors contributing to his wrist disability. Muscle strength testing of wrist flexion and extension was normal (5/5). There was no ankylosis. 

The Veteran submitted to another VA examination in April 2021. During the examination the Veteran reported right wrist pain with weight-bearing. He did not report flare-ups or having any functional loss or functional impairment. On examination, initial active range of motion testing demonstrated dorsiflexion to 70 degrees, palmar flexion to 80 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees. There was objective evidence of pain on dorsiflexion. Passive range of motion testing revealed the same values. There was evidence of pain in weight-bearing and on active motion. Pain noted on examination did not result in or caused functional loss. There was no evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was not examined immediately after repeated use over time. The examination was not conducted during a flare-up. There was no muscle atrophy and no ankylosis. Radiographs of the wrist demonstrated no evidence for fracture or other significant bone or soft tissue abnormality. No significant radiographic evidence for arthritis.

On review of the record, the Board finds that a rating in excess of 10 percent for a right wrist disability is not warranted at any time during the appeal period. Consistent with the findings of the May 2010, May 2018, October 2019, and April 2021 examinations, VA treatment records do not at any time show that his right wrist was ankylosed, which precludes an increased rating pursuant to DC 5214, or that that two or more joints are involved, as would be necessary for the increased rating under DC 5003. While the Veteran is competent to note wrist pain, or that he has decreased range of motion, the multiple examiners all noted he does not have ankylosis of the right wrist.

The Veteran is in receipt of the maximum schedular rating for limitation of motion of the wrist and, thus, the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59 are no longer applicable. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (holding that a 10 percent disability rating is the maximum rating available for limitation of motion of the wrist and that failure to consider functional loss due to pain which could limit range of motion was not applicable as the appellant was already in receipt of the maximum disability rating available under Diagnostic Code 5215). Thus, any examination inadequacies regarding range of motion testing as described in 38 C.F.R. § 4.59 have resulted in harmless error and additional examination is not warranted.

Similarly, as the Veteran is receiving the maximum schedular rating possible under DC 5215 and a higher rating is not warranted without a finding of ankylosis, any examination inadequacies regarding flare-up testing as described in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and additional examination is not warranted.

In sum, the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the service-connected right wrist disability at any time during the appeal period. The benefit-of-the-doubt rule is not applicable, and the appeal for an increased rating is denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. (1990).

 

 

Rebecca N. Poulson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Grace Johnk, 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.