Citation Nr: A21020102 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 200501-187114 DATE: December 16, 2021 ORDER Entitlement to a disability rating in excess of 40 percent disabling for right lower extremity sciatic nerve radiculopathy (previously rated as radiculopathy right lower extremity) is denied. Entitlement to a disability rating in excess of 10 percent disabling for right knee degenerative arthritis with leg length discrepancy and right tibia/fibula compound fracture with corrective surgery and retained hardware (also claimed as right underdeveloped leg) is denied. Entitlement to a compensable rating for right knee degenerative arthritis with leg discrepancy and right tibia/fibula compound fracture with corrective surgery and retained hardware with impaired flexion is denied. FINDINGS OF FACT 1. The weight of the competent and probative evidence is against finding right lower extremity sciatic nerve radiculopathy manifested by severe incomplete paralysis with muscle atrophy or complete paralysis. 2. The weight of the competent and probative evidence is against finding right knee degenerative arthritis manifested by ankylosis, recurrent subluxation, instability, meniscus conditions, extension limited to 15 degrees, shin splints, genu recurvatum or nonunion or malunion of the tibia or fibula. 3. The weight of the competent and probative evidence is against finding right knee degenerative arthritis with leg discrepancy and right tibia/fibula compound fracture with corrective surgery and retained hardware with impaired flexion limited to 45 degrees or less. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for right lower extremity sciatic nerve radiculopathy are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8620. 2. The criteria for a disability rating in excess of 10 percent for right knee degenerative arthritis with leg length discrepancy and right tibia/fibula compound fracture with corrective surgery and retained hardware (also claimed as right underdeveloped leg) are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5003-5261. 3. The criteria for a compensable rating for right knee degenerative arthritis with leg discrepancy and right tibia/fibula compound fracture with corrective surgery and retained hardware with impaired flexion are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to June 1977. These matters come before the Board of Veterans' Appeal (Board) on appeal from a January 2020 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, granted an increased rating of 40 percent for right lower extremity sciatic nerve radiculopathy and denied a rating in excess of 10 percent for right knee degenerative arthritis. In a May 2020 VA 10182, Decision Review Request: Board Appeal, the Veteran initially elected the Hearing Docket. The Veteran modified this election in a June 2020 VA Form 10182, Decision Review Request: Board Appeal, and elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the June 2020 VA Form 10182. 38 C.F.R. § 20.303. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). All regulations that are potentially applicable must be acknowledged and considered. Schafrath, 1 Vet. App. at 593. 1. Entitlement to a disability rating in excess of 40 percent for radiculopathy, sciatic nerve, right lower extremity (previously rated as radiculopathy right lower extremity). The Veteran contends that he is entitled to a higher rating right lower extremity radiculopathy. Neuritis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8620. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. After reviewing the evidence of record at the time of the AOJ decision on appeal, the Board finds that a rating in excess of 40 percent for radiculopathy, sciatic nerve, right lower extremity is not warranted. In a January 2020 rating decision, the evaluation for right lower extremity sciatic nerve radiculopathy was increased to 40 percent under Diagnostic Code 8620 effective December 17, 2019, the date of the increased rating claim. The Veteran was afforded a VA examination in January 2020. During the evaluation, the Veteran exhibited normal reflexes and negative straight leg raising. Right side muscle strength testing was slightly reduced at 4 out of 5, showing active movement against some resistance. The Veteran displayed decreased sensation to light touch on the right side at L3-L4 through L5-S1. Symptoms of radiculopathy included moderately severe intermittent pain, paresthesias and numbness of the right side with involvement of the sciatic nerve. There was no ankylosis or any other neurological abnormalities or findings. The examiner opined that the Veteran suffered from right, moderately severe radiculopathy. January 25, 2020, VA Examination. VA treatment records added to the claims file in January 2020 reveal no additional complaints or neurological manifestations of radiculopathy at any time during the period on appeal. There is no evidence of impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, foot drop, or constant pain. Based on the above, the Board finds that the disability is primarily manifested by sensory disturbance, intermittent pain, and mildly reduced muscle strength. A higher rating of 60 percent is not warranted as the most probative evidence of record is against a finding that the disability is manifest by severe incomplete paralysis with muscle atrophy or evidence of complete paralysis such as foot drop or no active movement possible of the muscles below the knee. The Board thus finds that the level of impairment is most analogous to moderately severe incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for radiculopathy, sciatic nerve, right lower extremity. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a disability rating in excess of 10 percent for right knee degenerative arthritis with leg length discrepancy and right tibia/fibula compound fracture with corrective surgery and retained hardware (also claimed as right underdeveloped leg). The Veteran contends that he is entitled to a higher rating for right knee degenerative arthritis. The Veteran's right knee degenerative arthritis is currently evaluated as 10 percent disabling under Diagnostic Code 5003-5261. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. The hyphenated diagnostic code indicates that degenerative arthritis (5003) has been rated under the criteria for limitation of leg extension (DC 5261). In this instance, the 10 percent rating is assigned for noncompensable limitation of motion due to arthritic pain. See 38 C.F.R. §§ 4.27, 4.59. Under Diagnostic Code 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. 38 C.F.R. § 4.71a, Diagnostic Code 5261. 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."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right knee degenerative arthritis. The Veteran was afforded a VA examination in January 2020. The Veteran's right knee initially exhibited full extension. The examiner opined there would be no estimated loss in extension with repeated use over time or during flare-ups. The Veteran did not perform 3 repetitions due to fear of pain. There was evidence of pain on examination causing function loss and objective evidence of pain on passive range of motion testing. The examiner found no objective evidence of pain when the joint is used in non-weight bearing. The examiner noted that decreased range of motion led to less movement, difficulty walking, and interference with standing. There was no evidence of muscle atrophy, ankylosis, recurrent subluxation, lateral instability, or meniscus conditions. January 25, 2020, VA Examination. VA treatment records reveal no additional complaints of right knee pain or evidence of functional limitations associated with right knee pain during the period on appeal. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, swelling and stiffness. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that moderately severe flare-ups happen at varied times lasting 1 to 2 days would not result in limitation of motion more nearly approximating a 20 percent rating with extension limited to 15 degrees. The Veteran's limitation of motion is noncompensable under Diagnostic Code 5261 for limitation of extension. The Veteran's right knee disability picture more nearly approximates a 10 percent rating for noncompensable limitation of motion due to arthritic pain pursuant to 38 C.F.R. § 4.59. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. 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). Additional or higher disability ratings could not be assigned under Diagnostic Codes 5256, 5257, 5258, 5259, 5262 or 5263 as the most probative evidence of record does not warrant a finding of right knee ankylosis, subluxation, instability, meniscus conditions, shin splints, nonunion or malunion of the tibia and fibula, or genu recurvatum. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for right knee degenerative arthritis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a compensable rating for right knee degenerative arthritis with leg discrepancy and right tibia/fibula compound fracture with corrective surgery and retained hardware with impaired flexion. The Veteran contends he is entitled to a compensable rating for right knee limitation of flexion, rated under Diagnostic Code 5260. Under Diagnostic Code 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. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Board finds that the preponderance of the evidence is against a compensable rating for right knee limitation of flexion. The Veteran's right knee flexion was initially limited to 65 degrees, with full extension. The examiner opined an additional loss in flexion to 55 degrees with repeated use over time and during flare-ups due to pain. The Veteran did not perform 3 repetitions due to fear of pain. There was evidence of pain on examination causing function loss and objective evidence of pain on passive range of motion testing. The examiner found no objective evidence of pain when the joint is used in non-weight bearing. The examiner noted that decreased range of motion led to less movement, difficulty walking, and interference with standing. January 25, 2020, VA Examination. Even considering the Veteran's lay reports of symptoms and noted functional loss due to pain, swelling, and stiffness, the degree of additional limitation would not result in limitation of flexion more nearly approximating a 10 percent rating with flexion limited to 45 degrees. The Veteran's limitation of motion is noncompensable under Diagnostic Code 5260 for limitation of flexion. The Board has considered whether a 10 percent rating under 38 C.F.R. § 4.59 for painful motion is required for flexion, but finds it is not. A separate rating is not warranted under Diagnostic Code 5260 where painful motion is already considered by the assigned 10 percent rating under Diagnostic Code 5003-5261. (Continued on the next page) In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for right knee limitation of flexion. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ball Jackson, 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.