Citation Nr: 21076195 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-21 255 DATE: December 22, 2021 ORDER A rating in excess of 10 percent for lumbar spine disability is denied. A separate rating for right lower extremity (RLE) radiculopathy is granted. A separate rating for left lower extremity (LLE) radiculopathy is granted. A rating in excess of 10 percent for residuals of a right knee injury, traumatic arthritis, and limited painful motion is denied. A rating in excess of 10 percent for residuals of a right knee injury, traumatic arthritis, and instability is denied. REMANDED A rating in excess of 20 percent for residuals of a left knee injury with traumatic arthritis is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding forward flexion of the thoracolumbar spine not greater than 60 degrees; 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. 2. The preponderance of the evidence shows RLE radiculopathy and LLE radiculopathy. 3. The preponderance of the evidence is against finding right knee flexion limited to 30 degrees, extension limited to 15 degrees, moderate right knee instability, ankylosis, semilunar cartilage disability, malunion of tibia and fibula, genu recurvatum, or right knee sprain or ligament tear causing persistent instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for a separate rating for RLE radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a at Note 1. 3. The criteria for a separate rating for LLE radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a at Note 1. 4. The criteria for a rating in excess of 10 percent for residuals of a right knee injury, traumatic arthritis, and limited painful motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5010-5260. 5. The criteria for a rating in excess of 10 percent for residuals of a right knee injury, traumatic arthritis, and instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1981 to February 1987. The Veteran testified before the Board in October 2019. A transcript of the hearing is associated with the claims file. In an October 2021 letter, the Veteran was advised the Veterans Law Judge (VLJ) who conducted the August 2019 hearing was no longer employed by the Board and he therefore had the right to another hearing with a different VLJ. The letter instructed the Veteran should respond within 30 days or the Board would proceed with adjudication. VA did not receive a response to the letter. Therefore, the Board will proceed with adjudication. Increased Rating 1. Entitlement to a rating in excess of 10 percent for lumbar spine disability 2. Entitlement to a separate rating for RLE radiculopathy 3. Entitlement to a separate rating for LLE radiculopathy The Veteran is assigned a 10 percent rating for lumbosacral strain under DC 5237. The Veteran contends he is entitled to a higher rating. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for 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 the height. A 20 percent rating is warranted for 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Any associated objective neurological abnormalities are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. 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 v. Brown, 8 Vet. App. 202 (1995); 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; 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) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). The preponderance of the evidence is against finding a rating in excess of 10 percent for lumbar spine disability. The preponderance of the evidence supports awarding separate ratings for RLE radiculopathy and LLE radiculopathy. A March 2014 VA examination reported flare-ups, described as pain and stiffness. Initial range of motion testing showed flexion to 70 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The clinician denied evidence of localized tenderness or pain to palpitation of the spine. The clinician denied evidence of guarding or muscle spasm of the spine. The clinician denied Intervertebral Disc Syndrome (IVDS). The clinician denied ankylosis. The clinician opined the impact of the Veteran's spine disability on his ability to work was not being able to perform heavy lifting, pushing, or pulling due to decreased range of motion and arthritic formation. A December 2016 DRO hearing reported receiving treatment for his back disability at VA. He reported constant back pain. He repeated treatment with medication and a back brace. A January 2017 VA examination stated the Veteran did not report flare-ups or functional impairment of the thoracolumbar spine. Range of motion testing showed flexion to 70 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The clinician noted pain was noted on exam, not resulting in/causing functional loss. The clinician stated the Veteran was being examined immediately after repetitive use over time. The clinician opined pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time. The clinician denied evidence of guarding or muscle spasm of the thoracolumbar spine. The clinician denied ankylosis. The clinician noted regular use of a brace. The clinician opined the Veteran's thoracolumbar spine condition did not impact his ability to work. At an October 2019 Board hearing, the Veteran reported trouble with sitting too long. He reported sometimes during car trips having to stop for a break. He reported needing a back brace. He reported his back went out on him one year prior. He reported having to change jobs to a less strenuous position. He reported pain with bending in all directions. He reported stiffness and throbbing pain, sometimes to the extent that he tears up. A November 2020 VA examination reported continued low back pain with developed stiffness and occasional bilateral lower extremity radiculopathy symptoms. The Veteran reported flare-ups, described as sharp pain and stiffness, at a weekly frequency, moderate severity, and duration of 2 days. The Veteran reported he cannot stand or walk for long periods, so he uses a cane at all times. Range of motion testing showed flexion to 70 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The clinician noted pain on exam, not resulting in/causing functional loss. The clinician noted evidence of mild tenderness to the lower spine. The clinician noted the Veteran was not examined after repeated use over time or during a flare-up. The clinician opined pain, weakness, and lack of endurance would significantly limit functional ability with repeated use over a period of time and during a flare-up, described in terms of range of motion as flexion to 65 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. The clinician stated the Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The clinician denied IVDS. The clinician denied ankylosis. The clinician noted regular use a brace. The clinician opined the impact of the Veteran's thoracolumbar spine disability on his ability to work was difficulty with prolonged sitting, getting up from a chair or sitting in a car for long periods, bending over, lifting weights, or twisting repeatedly. To warrant rating in excess of 10 percent, the evidence must show forward flexion of the thoracolumbar spine not greater than 60 degrees; 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. The preponderance of the evidence does not support a rating in excess of 10 percent. The evidence shows the Veteran's forward flexion was at worst to 65 degrees due to flare-up or repeated use over time. The evidence shows the Veteran's combined range of motion of the thoracolumbar spine was at worst 155 degrees. The Board gives probative weight to the November 2020 VA examination findings because the examiner considered additional range of motion loss in degrees with repeated use over time and during flare-ups. The Veteran has not contended, nor does the evidence support, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Consideration was given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a. The Veteran has not contended, nor does the evidence support, IVDS requiring bed rest prescribed by a physician for a duration that meets the criteria for a higher rating. Regarding associated objective neurological abnormalities, the November 2020 VA examination diagnosed bilateral lower extremity radiculopathy. Accordingly, the preponderance of the evidence supports granting separate ratings for RLE radiculopathy and LLE radiculopathy. 38 C.F.R. § 4.71a at Note 1. For the foregoing reasons, the preponderance of the evidence is against a rating in excess of 10 percent for lumbar spine disability. The preponderance of the evidence supports awarding separate ratings for RLE radiculopathy and LLE radiculopathy. 4. Entitlement to a rating in excess of 10 percent for residuals of a right knee injury, traumatic arthritis, and limited painful motion 5. Entitlement to a rating in excess of 10 percent for residuals of a right knee injury, traumatic arthritis, and instability The Veteran's right knee is assigned a 10 percent rating for painful motion under DC 5010-5260 and a 10 percent rating for instability under DC 5257. He contends entitlement to an increased rating. Under DC 5256, a 30 percent rating is warranted for knee ankylosis with a favorable angle in full extension, or in slight flexion between zero and 10 degrees. A 40 percent rating is warranted for knee ankylosis in flexion between 10 degrees and 20 degrees. A 50 percent rating is warranted for knee ankylosis in flexion between 20 degrees and 45 degrees. A 60 percent rating is warranted for extremely unfavorable knee ankylosis, in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a. Under DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Id. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Under DC 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Id. Under DC 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. Id. Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. Id. Under DC 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. Under DC 5262, a 10 percent rating is warranted for malunion of tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. Id. Under DC 5263, a 10 percent rating is warranted for genu recurvatum. The Board notes, effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg. DC 5256, DC 5258, DC 5259, DC 5260, and DC 5263 were unchanged under the amended rating criteria. DC 5257 and DC 5262 were amended. The Board will apply the old rating criteria prior to February 7, 2021 and consider whether the new rating criteria would be more favorable to the Veteran after February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the amended criteria, DC 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability. For recurrent subluxation or instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A maximum 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 (e.g., cane(s), crutch(es), walker) 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 maximum 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. Looking to evidence during the appeal period, a March 2014 VA examination reported flare-ups described as pain, swelling, stiffness, and locking. Initial range of motion testing showed flexion to 120 degrees and no limitation of extension. Joint stability testing was normal. The clinician stated there was no history of recurrent patellar subluxation or dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or other tibial or fibular impairment. The clinician stated there was no evidence of meniscal disability. The Veteran reported constant use of a brace, more on the right knee. The clinician opined the impact on the Veteran's ability to work was inability to run, jump, walk, or bend. A December 2016 DRO hearing reported receiving treatment for his knee disability at VA. He reported pain and swelling. He reported treatment with medication, injection, and a knee brace. A January 2017 VA examination reported chronic knee pain with ambulation, without swelling, locking, or instability. The Veteran denied flare-ups or functional loss to the knee or lower leg. Initial range of motion testing showed normal range of motion. The clinician stated no pain was noted on examination. The clinician stated the Veteran was being examined immediately after repetitive use over time. The clinician opined pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over a period of time. The clinician stated there was no evidence of ankylosis. The clinician stated there was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal. The clinician denied a history of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or other tibial or fibular impairment. The Veteran reported regular use of a brace and cane. At an October 2019 Board hearing, the Veteran reported pain and stiffness with standing, moving around, activities, walking, and driving. The Veteran reported his right knee pops and locks. He stated about 6 months prior his knee buckled. He reported feeling his knee was weak and unstable at times. He reported needing to use the rail when taking the stairs. He reported not being able to take sharp turns. He reported knee pain while sleeping. A November 2020 VA examination noted continued bilateral knee pain and developed instability. He reported current symptoms of pain, stiffness, and swelling. He reported flare-ups described as sharp pain and stiffness, at a weekly frequency, to a moderate severity, and approximately two days duration. He reported the functional impairment of not being able to sit, stand, or walk for long periods. Initial range of motion testing showed flexion to 115 degrees and normal extension. The clinician noted pain on exam, not resulting in/causing functional loss. The clinician opined pain, weakness, and incoordination would significantly limit functional ability with repeated use over time or during a flare-up, described in terms of range of motion as flexion to 110 degrees and normal extension. The clinician denied evidence of ankylosis. The clinician stated there was no history of recurrent subluxation or lateral instability. The clinician noted intermittent recurrent effusion to the bilateral knees. Joint stability testing was normal. The clinician denied a history of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or other tibial or fibular impairment. The Veteran reported regular use of a brace and cane. The clinician opined that impact of the Veteran's bilateral knee disability on his ability to work was difficulty with prolonged sitting, getting up from a chair, sitting in a car for long periods, squatting, lifting weights, or twisting repeatedly. The preponderance of the evidence is against a rating in excess of 10 percent for limitation of motion. To warrant a rating in excess of 10 percent, the evidence must show flexion limited to 30 degrees or extension limited to 15 degrees. The evidence shows flexion at worst to 100 degrees and normal extension. The Board gives probative weight to the November 2020 VA examination findings because the examiner considered additional range of motion loss in degrees with repeated use over time and during flare-ups. Under the pre-February 7, 2021 rating criteria, the preponderance of the evidence is against a rating in excess of 10 percent for right knee instability. To warrant a rating in excess of 10 percent, the evidence must show moderate recurrent subluxation or lateral instability. The preponderance of the evidence is against finding moderate right knee instability. The Board acknowledges objective medical evidence is not required to establish lateral knee instability under DC 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this DC. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). A January 2017 VA examination reported chronic knee pain, without instability. The Veteran reported regular use of a brace and cane. At the October 2019 Board hearing, the Veteran stated his knee buckled about 6 months prior. He reported feeling his knee was weak and unstable at times. He reported needing to use the rail when taking the stairs. He reported not being able to take sharp turns. A November 2020 VA examination noted developed instability. The Veteran reported regular use of a brace and cane. The Board finds the severity and frequency of the Veteran's right knee stability during the appeal period has varied and does not suggest the presence of symptoms more nearly approximating moderate severity. In making this finding, the Board relied both on the Veteran's lay statements describing his symptoms and resulting functional limitations, as well as the objective evidence of normal joint stability testing throughout the appeal period. While the Veteran regularly used a brace and cane and reported difficulty standing and walking for extended periods of time, the Veteran was able to walk and stand for non-prolonged periods of time. VA treatment records shows the Veteran was able to work for a majority of the appeal period and attend activities in the community and with his son. The Board considered the other diagnostic codes pertaining to the knee and leg. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The evidence does not support, nor has the Veteran contended, ankylosis, semilunar cartilage disability, malunion of tibia and fibula, or genu recurvatum. The Board considered the amended DC 5257 rating criteria. The preponderance of the evidence is against finding right knee sprain or ligament tear causing persistent instability. In conclusion, the preponderance of the evidence is against an increased rating for right knee disability. REASONS FOR REMAND Entitlement to an evaluation in excess of 20 percent for residuals of a left knee injury with traumatic arthritis The Veteran is assigned a 20 percent rating for left knee disability under DC 5257. The evidence shows a history of multiple left knee surgeries, to include ACL repair, medial meniscectomy. As noted above, effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg, to include DC 5257. Under the amended DC 5257, for recurrent subluxation or instability, 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 (e.g., cane(s), crutch(es), walker) and bracing for ambulation. The Veteran's left knee was last afforded VA examination in November 2020 and does not contain sufficient findings to fully evaluate his knee disability under the revised criteria. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating it under the rating criteria. The examiner must test active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Winkler, 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.