Citation Nr: 21074411
Decision Date: 12/15/21	Archive Date: 12/15/21

DOCKET NO. 13-08 077
DATE: December 15, 2021

ORDER

For the entire period on appeal prior to February 9, 2018, entitlement to a disability rating of 20 percent, but not greater, for the service-connected cervical spine (neck) disability, is granted. 

Since February 9, 2018, entitlement to a disability rating greater than 20 percent for the service-connected neck disability is denied. 

For the entire period on appeal prior to February 9, 2018, entitlement to a disability rating of 20 percent, but not greater, for the service-connected thoracolumbar spine (back) disability, is granted. 

Since February 9, 2018, entitlement to a disability rating greater than 20 percent for the service-connected back disability is denied. 

Entitlement to a disability rating greater than 10 percent for limitation of motion associated with the service-connected left knee disability is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.

FINDINGS OF FACT

1. For the entire period on appeal, the service-connected neck disability is manifested by painful motion with forward flexion greater than 15 degrees.

2. For the entire period on appeal, the service-connected back disability is manifested by painful motion with forward flexion greater than 30 degrees.

3. The service-connected left knee disability is manifested by painful motion with normal extension and flexion greater than 45 degrees. 

4. The combined disability rating is 90 percent. 

5. The service-connected disabilities have not rendered the Veteran unable to secure or follow a substantially gainful occupation. 

CONCLUSIONS OF LAW

1. For the entire period on appeal prior to February 9, 2018, the criteria for a disability rating of 20 percent for the service-connected neck disability were met; the criteria for a rating greater than 20 percent were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.

2. Since February 9, 2018, the criteria for a disability rating greater than 20 percent for the service-connected neck disability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.

3. For the entire period on appeal prior to February 9, 2018, the criteria for a disability rating of 20 percent for the service-connected back disability were met; the criteria for a rating greater than 20 percent were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.

4. Since February 9, 2018, the criteria for a disability rating greater than 20 percent for the service-connected back disability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.

5. The criteria for a disability rating greater than 10 percent for limitation of motion associated with the service-connected left knee disability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260.

6. The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant is a veteran (the Veteran) who had active duty service from January 29, 1974, to January 16, 1980, and from January 2, 1985, to June 30, 1999. 

This appeal comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In August 2017, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). At the Board hearing, the Veteran was informed of the basis for the RO's denial of his claims, and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103. He was provided additional time following the hearing to submit private medical records. A transcript of the hearing is associated with the claims file.

In September 2017, the Board remanded this appeal for additional evidentiary development. In July 2021, the Board denied higher ratings for upper and lower extremity radiculopathy, granted a higher staged rating for left knee instability, but denied higher ratings for other stages, and again remanded the issues of higher ratings for the neck and low back, as well as the left knee limitation of motion rating, and TDIU. The appeal has since been returned to the Board for further appellate action. As the ratings for radiculopathy and left knee instability have already been decided, the Board will not address those matters further in this decision. 

The Board initially finds that its remand instructions were substantially complied with. The AOJ obtained examinations compliant with holdings of the Veterans Court regarding the adequacy of examinations involving range of motion. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). See also Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

Increased RatingsLaw and Regulations 

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 

Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). The rating must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca, supra; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). 

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54.

Entitlement to an increased disability rating for the service-connected neck disability, currently rated at 10 percent prior to February 9, 2018, and 20 percent since February 9, 2018. 

Entitlement to an increased disability rating for the service-connected back disability, currently rated at 10 percent prior to February 9, 2018, and 20 percent since February 9, 2018. 

In a May 2000 rating decision, VA granted service connection for a neck disability and assigned an initial disability rating of 10 percent under former Diagnostic Code 5290, effective July 16, 1999. The current appeal arises from an increased rating claim received at VA on August 18, 2010. In a January 2019 rating decision, the disability rating was increased to 20 percent, effective February 9, 2018. 

In a May 2000 rating decision, VA granted service connection for a back disability and assigned an initial disability rating of 10 percent under former Diagnostic Code 5293, effective July 16, 1999. The current appeal arises from an increased rating claim received at VA on August 18, 2010. In a January 2019 rating decision, the disability rating was increased to 20 percent, effective February 9, 2018. 

Effective February 7, 2021, degenerative arthritis, and degenerative disc disease other than intervertebral disc syndrome are to be rated under Diagnostic Code 5242. A rating under Diagnostic Code 5243 for intervertebral disc syndrome is only to be assigned when there is disc herniation with compression of the adjacent nerve root. See 85 Fed. Reg. 76464 (Nov. 30, 2020). These changes do not affect the ratings assigned, but simply affect the diagnostic code to be assigned. All disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Both neck and back disabilities are currently rated under Diagnostic Code 5242. 

Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 

A rating of 100 percent requires unfavorable ankylosis of the entire spine. 

A rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. 

A rating of 40 percent requires unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 

A rating of 30 percent requires forward flexion of the cervical spine limited to 15 degrees or less; or favorable ankylosis of the entire cervical spine. 

A rating of 20 percent requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 

A rating of 10 percent is assigned with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 the height.

For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Formula, note (2) (See also Plate V). 

A VA Examination of the neck in September 2010 reveals the Veteran's complaint of neck pain, but no arm pain. He can walk for 15 minutes, up to 1-2 blocks at a time. He has symptom flares associated with sleeping in a certain position. He has not had any surgery. He has had physical therapy, injections, and medication treatment for his neck pain. He has had no doctor-ordered bedrest in the past 12 months. Sensation was intact to light touch. He had full strength in the upper extremities. He had 1+ equal and symmetric deep tendon reflexes bilaterally. He had no spasm or guarding. He had some minimal tenderness to palpation over the C5-C6 interspace in the midline; however, his right and left paraspinous muscles were nontender. Range of motion was from 0-45 degrees of forward flexion without any pain. The Veteran had 0-30 degrees of extension without any pain; however, he could not extend beyond 30 degrees on examination. Repetition 3 times did not increase pain in this plane of motion. The Veteran had both right and left lateral flexion from 0-45 degrees without any pain. Repetition 3 times in these planes of motion did not increase his pain. The Veteran had both right and left lateral rotation from 0-50 degrees without any pain. The Veteran could not rotate beyond 50 degrees both to the right and left secondary to significant increase in pain. The examiner diagnosed spondylosis.

A VA Examination of the low back in September 2010 reveals the Veteran's complaint of back pain. He indicates that he uses a cane on an intermittent basis which is minimally helpful. He can walk for 15 minutes, up to 1-2 blocks at a time. He does have symptom flares on a monthly basis associated with sitting for long periods. He has not had any surgery. He has had physical therapy, injections, and medication treatment for his low back pain. He has had no doctor-ordered bedrest in the past 12 months. He has had no bowel or bladder changes, or fever, or chills associated with his low back pain. He was in no acute distress. He had full strength in the lower extremities. His sensation was intact to light touch over the L2-S1 dermatomes bilaterally. He had excellent dorsalis pedis pulse bilaterally. He had a negative straight leg raise bilaterally. His deep tendon reflexes were 1+, equal, and symmetric bilaterally. He had no tenderness to palpation, no spasm, no guarding on examination. He walked with a non-antalgic gait. He had 0-75 degrees of forward flexion without any pain. He had 75-90 degrees of forward flexion which was significantly painful. Repetitions 3 times did not increase pain. He had 0-15 degrees of extension without any pain. The Veteran had 0-30 degrees of both right and left lateral bending without any pain. The Veteran had 0-30 degrees of right and left rotation without any pain. Repetition 3 times in all these planes of motion did not increase pain. The examiner diagnosed degenerative disc disease. The examiner found it conceivable that his pain with loss of range of motion could further limit the Veteran's function. However, it was difficult to quantify the Veteran's loss of function with any medical certainty.

A March 7, 2013, orthopedic consult reveals complaint of neck and knee pain. On examination, the Veteran had trace effusion of the left knee. He had a valgus posture on standing, a mildly antalgic gait and no instability. X-rays of the neck revealed diffuse degenerative changes. X-rays of the knee revealed significant lateral compartment arthritis and patella-femoral arthritis. He only had about 3 mm or so of joint space left in the lateral compartment of the left knee. The diagnosis was symptomatic arthritis of the cervical spine and left knee.

A September 2013 MRI of the cervical spine reveals (1) slight worsening of previously described mild degenerative changes; (2) minimal loss of disc height and hydration at all levels from C4 through T1; (3) small osteophytes present anterior to all levels from C3 through T1; (4) hypertrophy of the uncovertebral joints causing very minimal foraminal stenosis at the exit of the right C4 nerve root; (5) moderate stenosis, which may be slightly worse than the previous study at the exit of the left C6 nerve root.

A private evaluation of the neck in September 2017 reveals moderate limitation for walking, stairs, and running. Flexion was to 35 degrees; extension to 27 degrees; lateral flexion to 10 degrees bilaterally; right rotation to 37 degrees; and left rotation to 34 degrees. 

A private evaluation of the back in September 2017 reveals moderate limitation for walking, stairs, and running. Flexion was to 45 degrees; extension to 10 degrees; right lateral flexion to 12 degrees; left lateral flexion to 15 degrees; right rotation to 24 degrees; and left rotation to 23 degrees.

A VA Examination of the back in February 2018 reveals the Veteran's complaint of daily pain and spasm, as well as intermittent bilateral lower extremity radiculopathy, left greater than right. It will last minutes. He uses a TENS unit and back brace. He can walk 100 yards, sit for 1 hour, stand for 10 minutes, lift 15 pounds, and perform limited bending. Flares consist of increased pain with prolonged walking or heaving lifting. Forward flexion was to 55 degrees. Extension was to 15 degrees; right lateral flexion was to 20 degrees; left lateral flexion was to 25 degrees; right rotation was to 25 degrees; and left rotation was to 20 degrees. There was evidence of pain with weight bearing. There was no additional limitation of motion after three repetitions. Pain significantly limits functional ability with repeated use over a period of time; however, the examiner could not determine the amount from the examination or history. The examiner could not estimate range of motion during flares because the Veteran was not having a flare. Muscle spasms did not result in abnormal gait or abnormal spinal contour. There was no guarding. Lower extremity muscle strength was full without atrophy. Reflexes were normal and sensation was normal. Radiculopathy was assessed as mild intermittent pain, bilaterally, and mild paresthesias/dysesthesias. There was no ankylosis. There were no other neurological abnormalities. There was no requirement of bed rest. The Veteran used a back brace. The impact on employment was no heavy lifting or prolonged walking. The examiner diagnosed degenerative disc disease, degenerative joint disease, and bilateral lower extremity radiculopathy.

A VA Examination of the neck in February 2018 reveals the Veteran's complaint of daily pain and spasm. He limits his overhead lifting and work. He also limits his flexions and extensions of his neck. Flares consist of increased pain with repetitive flexions of the neck. Flexion was from 0 to 20 degrees; extension was from 0 to 15 degrees; lateral flexion was from 0 to 15 degrees, bilaterally; right lateral rotation was from 0 to 45 degrees; left lateral rotation was from 0 to 35 degrees. Pain causes functional loss. There was no additional functional loss after three repetitions. The Veteran was being examined after repetitive use over a period of time. The examiner could not estimate additional functional loss during flares as the Veteran was not experiencing a flare. Muscle spasms did not result in abnormal gait or abnormal spinal contour. There was no guarding. Muscle strength was full without atrophy. Reflexes were normal. Sensation was normal. There were no radicular symptoms. There was no ankylosis. There was no intervertebral disc syndrome. There was no prescription of bed rest. There were no assistive devices. There were no other neurological abnormalities associated with the disability. The examiner diagnosed degenerative disc disease and degenerative joint disease.

A VA Examination of the neck in September 2021 reveals the Veteran's complaint of pain with excessive activity. The Veteran was unable to do activities requiring repetitive/prolonged/excessive use of neck e.g. push/pull/lift/hold/work overhead. There were no flares. Flexion was measured from 0 to 40 degrees; extension was from 0 to 40 degrees; right lateral flexion was from 0 to 45 degrees; left lateral flexion was from 0 to 45 degrees; right lateral rotation was from 0 to 75 degrees; left lateral rotation was from 0 to 75 degrees. Passive range of motion was not tested because the examiner did not think it wise to do so. Symptoms did not result in functional loss. There was no additional limitation of motion after three repetitions. The Veteran was not being examined after repetitive use over a period of time. The examiner estimated that, under such conditions, flexion would be from 0 to 40 degrees; extension would be from 0 to 40 degrees; right lateral flexion would be from 0 to 40 degrees; left lateral flexion would be from 0 to 40 degrees; right lateral rotation would be from 0 to 75 degrees; left lateral rotation would be from 0 to 75 degrees. As no flares were reported, an estimate was not provided. There was no guarding, localized tenderness, or spasm. Muscle strength was full without atrophy. Reflexes were normal. Sensation was normal. There were no radicular symptoms. There was no ankylosis. There was no intervertebral disc syndrome. There were no assistive devices required or used. There were no other neurological abnormalities associated with the disability. The examiner diagnosed degenerative arthritis, and spinal stenosis.

A VA Examination of the back in September 2021 reveals the Veteran's complaint of pain with excessive use. The Veteran was unable to jog, jump, hike, run, or sprint. There were no flares. Flexion was measured from 0 to 80 degrees; extension was from 0 to 25 degrees; lateral flexion and rotation were each from 0 to 30 degrees, bilaterally. Passive range of motion was not measured because the examiner refused to move someone's spine passively. There was no additional limitation of motion after three repetitions. There was no evidence of pain or crepitus. The Veteran was not being examined after repetitive use over a period of time. The examiner estimated that, under such conditions, flexion would be from 0 to 70 degrees; extension would be from 0 to 25 degrees; and lateral flexion and rotation would each be from 0 to 25 degrees, bilaterally. There was no spasm, guarding, or localized tenderness. Muscle strength was full without atrophy. Reflexes were normal. Sensation was normal. There were no radicular symptoms. There was no ankylosis. There was no intervertebral disc syndrome. There was no prescription of bed rest. The Veteran occasionally wore a brace. There were no other neurological abnormalities associated with the disability. The examiner diagnosed degenerative arthritis and degenerative disc disease.

After a review of all of the evidence, the Board finds that the criteria for 20 percent disability ratings for the low back and neck are met for the first stage on appeal. However, the criteria for ratings greater than 20 percent are not met for either stage.

Regarding the period prior to February 9, 2018, the Board finds that none of the examinations during that period are compliant with Correia v. McDonald, 28 Vet. App. 158 (2016) or Sharp v. Shulkin, 29 Vet. App. 26 (2017). The only examinations of record that is compliant with the holdings in these cases are the September 2021 examinations. Accordingly, as the Veteran's contentions and testimony indicate that his spinal conditions have worsened over the period on appeal, and not lessened, the Board will apply the findings and estimates on the September 2021 examinations to the entire period. This is a favorable finding. The Board finds that a 20 percent rating is warranted prior to February 9, 2018, for both the back and neck. However, the September 2021 examinations do not substantiate entitlement to ratings higher than 20 percent. The next higher rating for the neck is 30 percent. This requires forward flexion of the cervical spine to be limited to 15 degrees or less, or favorable ankylosis of the entire cervical spine. The next higher rating for the back is 40 percent. This requires forward flexion of the thoracolumbar spine to be limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Neither segment of the spine has motion that is limited to the degree required for a higher rating. 

The Board understands that these conditions are painful, and that pain is the Veteran's primary complaint regarding his neck and back. However, the rating schedule for the spine is clear that the ratings are to be applied with or without pain. The rating schedule is based primarily on range of motion. This is especially true for ratings above 20 percent. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); see 38 C.F.R. § 4.40. Here, the evidence demonstrates no additional functional impairment that would warrant a higher rating than currently assigned. 

The Veteran has joint pathology as described under 38 C.F.R. § 4.59; and there is limited motion, and painful motion. However, that provision establishes only that the Veteran is entitled to the minimum compensable evaluation for such symptomatology. Such a rating is already assigned. Evaluations greater than the minimum compensable rating must be based on demonstrated functional impairment. 

The Board has already addressed the ratings for the upper and lower extremities. There are no additional associated neurological abnormalities. Therefore, no separate ratings are warranted. 

In light of these findings of fact, the Board concludes that, prior to February 9, 2018, disability ratings of 20 percent, but not higher, are warranted for both the service-connected neck and low back disabilities. The Board also finds that, since February 9, 2018, a disability rating higher than 20 percent is not warranted for either the service-connected neck or back disability. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Entitlement to an increased disability rating for limitation of motion associated with the service-connected left knee disability, currently rated 10 percent. 

In a May 2000 rating decision, VA granted service connection for a left knee disability and assigned an initial disability rating of 10 percent under Diagnostic Code 5259, effective July 16, 1999. The current appeal arises from an increased rating claim received at VA on August 18, 2010. The diagnostic code was changed in January 2019 to 5260. The Board adjudicated the rating for lateral instability in its July 2021 decision. Accordingly, that matter is no longer on appeal. 

Under Diagnostic Code 5256 ankylosis is rated 60 percent where it is extremely unfavorable, in flexion at an angle of 45 degrees or more; a rating of 50 percent where in flexion between 20 degrees and 45 degrees; a rating of 40 percent where in flexion between 10 degrees and 20 degrees; and a rating of 30 percent where at a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5256.

Under Diagnostic Code 5258, a rating of 20 percent is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258.

Under Diagnostic Code 5259, symptomatic removal of the semilunar cartilage is assigned a rating of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5259.

Under Diagnostic Code 5260, limitation of flexion of the knee is assigned a rating of 30 percent where flexion is limited to 15 degrees; a rating of 20 percent where flexion is limited to 30 degrees; a rating of 10 percent where flexion is limited to 45 degrees; or a rating of 0 percent where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260.

Under Diagnostic Code 5261, limitation of extension of the knee is assigned a rating of 50 percent where extension is limited to 45 degrees; a rating of 40 percent where extension is limited to 30 degrees; a rating of 30 percent where extension is limited to 20 degrees; a rating of 20 percent where extension is limited to 15 degrees; a rating of 10 percent where extension is limited to 10 degrees; or a rating of 0 percent where extension is limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.

Under Diagnostic Code 5262, impairment of the tibia and fibula is assigned a rating of 40 percent with nonunion, with loose motion, requiring brace. With malunion of tibia and fibula, Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, are to be applied, whichever results in the highest evaluation. 

For medial tibial stress syndrome (MTSS), or shin splints, a rating of 30 percent requires treatment for no less than 12 consecutive months, and unresponsiveness to surgery and either shoe orthotics or other conservative treatment, both lower extremities; a rating of 20 percent requires treatment for no less than 12 consecutive months, and unresponsiveness to surgery and either shoe orthotics or other conservative treatment, one lower extremity; a rating of 10 percent requires treatment for no less than 12 consecutive months, and unresponsiveness to either shoe orthotics or other conservative treatment, one or both lower extremities; a rating of 0 percent is appropriate with treatment less than 12 consecutive months, one or both lower extremities. 38 C.F.R. § 4.71a, Diagnostic Code 5262. 

Under Diagnostic Code 5263, genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) is assigned a rating of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5263. 

A VA Examination of the knee in September 2010 reveals the Veteran's complaint of knee pain. The Veteran stated that he uses a cane on an intermittent basis, which is minimally helpful. He can walk for 15 minutes, up to 1-2 blocks at a time. He has symptom flares on a-monthly basis associated with stairs and sitting for long periods of time. The Veteran had arthroscopy in 1999 and 2007. He has had physical therapy, injections, and medication treatment. He had no acute distress. He had full strength. Range of motion of his left knee was from 0-120 degrees. Repetition 3 times in this plane of motion did not increase pain. There was a positive patellar grind. He had pain over the medial aspect of his knee on palpation. The diagnosis was tricompartmental arthritis of the left knee. It was thought conceivable that his pain would limit function; however, it was difficult to quantify loss of function with any medical certainty.

An October 24, 2013, VA orthopedic note reveals complaint of chronic left knee pain. The Veteran  had a normal gait. No swelling or palpable effusion was noted. There was normal alignment. Skin color and temperature were normal. There was minimal patellar tenderness to palpation. Knee active/passive range of motion was from 0-90 degrees. The examiner noted positive patellofemoral crepitus and grinding with flexion and extension. No locking was found. The knee was positive to medial/lateral joint line tenderness. Motor strength was full in flexion and extension. The examiner diagnosed left knee pain/osteoarthritis.

A private evaluation of the knee in March 2017 reveals the Veteran's complaint of issues with stairs and hills. He walked with a slightly antalgic gait, without an assistive device. Sensation and pulses were normal. Range of motion was 0 to 125 degrees. The extensor was intact. A mild gross valgus deformity was noted. There was not effusion.

A private evaluation of the left knee in September 2017 reveals moderate limitation for walking, stairs, and running. Flexion was to 108 degrees; extension to -8 degrees.

A VA Examination of the knee in February 2018 reveals the Veteran's complaint of occasional swelling. He can walk 100 yards, but does not run. He avoids squatting and stairs whenever possible. Flares are associated with prolonged walking, and consist of increased pain. Range of motion was from 0 to 90 degrees. There was pain with weight bearing. There was no additional limitation of motion after three repetitions. The examiner was unable to estimate range of motion loss after repeated use over a period of time or with flares. Muscle strength was full without atrophy. The examiner described mild daily pain associated with the meniscal injury. The Veteran regularly used a brace. Functional impact consisted of limited waking and squatting. There was pain with non-weight-bearing, passive range of motion, and weight-bearing. The examiner diagnosed status-post cartilaginous/ligament injury with tricompartmental arthritis.

A VA knee examination in September 2021 reveals the Veteran's complaint of pain with excessive activity and decreased range of motion with repetitive use. He was unable to stand or walk for long. He was unable to jump, hike, run, or spring. The Veteran reported no flares. There was no evidence of pain with or without weight bearing. Range of motion for the left knee was from 0 to 125 degrees. In comparison, range of motion for the right knee was normal. Passive and active range of motion were equal. After three repetitions, there was no loss of range of motion. After repeated use over a period of time, flexion would be reduced to 115 degrees. Muscle strength was full without atrophy. There was no effusion. The Veteran did not report any functional loss. The examiner diagnosed knee strain, a meniscal tear, and an anterior cruciate ligament tear, with history of surgical repair. 

After a review of all of the evidence, the Board finds that the criteria for a rating higher than 10 percent are not met. 

As with the neck and back, the Board finds that the examinations prior to September 2021 do not address the factors noted by the Veterans Court in Correia and Sharp. The September 2021 examination does address those factors; however, the range of motion measured on that examination does not meet the criteria for any rating higher than 10 percent. Indeed, the range of motion measured on that examination does not even meet the criteria for a 10 percent rating on the basis of range of motion. Findings for extension have either been normal, or exceeded normal. No separate rating for limitation of extension is warranted. 

As with the back and neck, the Board acknowledges that the Veteran's left knee is painful. However, at no point has this pain been reflected by compensable limitation of motion. 

The original rating was assigned on the basis of symptomatic removal of semilunar cartilage. The rating has since been changed to one based on limitation of motion. Regarding the possibility of separate ratings, the Board interprets the term "symptomatic" as all-inclusive. Therefore, assigning separate ratings under Diagnostic Code 5259 and either Diagnostic Code 5003 or 38 C.F.R. § 4.59 would constitute pyramiding, which is precluded. 

A higher rating under Diagnostic Code 5258 is not warranted as there is no currently dislocated semilunar cartilageit having already been surgically correctedand as there is no indication of effusion or frequent locking. There are no other identified knee conditions that would support application of a different diagnostic code. 

In light of these findings of fact, the Board concludes that a disability rating higher than 10 percent for the service-connected left knee limitation of motion is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371.

TDIULaw and Regulations

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15.

A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a).

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 

For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a).

In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the United States Court of Appeals for Veterans Claims (Veterans Court) referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Veterans Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel opined that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91.

Entitlement to TDIU 

Service connection is in effect for sleep apnea rated at 50 percent, a mental disorder rated at 30 percent, a neck disorder rated at 20 percent, a back disorder rated at 20 percent, left knee instability with staged ratings of 10 percent and 20 percent, left knee arthritis rated at 10 percent, and bilateral lower extremity radiculopathy rated at 10 percent for each lower extremity. He also has three noncompensably rated disabilities. The combined rating is 90 percent.  

After a review of all of the evidence, the Board finds that the criteria for TDIU are not met. 

While the schedular criteria for TDIU are certainly met, the evidence does not substantiate the inability to secure or follow a substantially gainful occupation due to the service-connected disabilities. The Veteran has not identified any aspects of his service-connected disabilities that would preclude employment in his usual profession. VA outpatient treatment records indicate that he practiced as a dentist until his retirement, and that he had a successful career, and was doing well at work prior to his retirement. Indeed, his initial mental examination in April 2011 indicates that a brief period of unemployment when his employer's clinic closed caused an increase in mental health symptoms, which persisted until he accepted a new position. The evidence, including the Veteran's assertions, does not substantiate the second criterion necessary for TDIU, i.e. that the service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. 

In light of these findings of fact, the Board concludes that TDIU is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

 

 

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. Cramp

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.