Citation Nr: 21006691 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 11-02 890 DATE: February 4, 2021 ORDER Entitlement to an initial disability rating in excess of 30 percent for osteodegenerative disease of the cervical spine is denied. Entitlement to an initial disability rating in excess of 20 percent for radiculopathy of the right upper extremity is denied. REMANDED Entitlement to an initial compensable disability rating for limitation of extension of the right knee is remanded. Entitlement to an initial disability rating in excess of 10 percent for patellofemoral syndrome of the right knee is remanded. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the left knee is remanded. Entitlement to an initial compensable disability rating for limitation of extension of the left knee is remanded. Entitlement to an initial compensable disability rating for osteoarthritis, subchondral ganglion cyst of acetabulum, dysplasia, and acetabular labral tear of the left hip with limitation of flexion, is remanded. Entitlement to an initial disability rating in excess of 10 percent for osteoarthritis, subchondral ganglion cyst of acetabulum, dysplasia, and acetabular labral tear of the left hip with impairment of the thigh, is remanded. Entitlement to an initial disability rating in excess of 10 percent for osteoarthritis, subchondral ganglion cyst of acetabulum, dysplasia, and acetabular labral tear of the left hip with limitation of extension, is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected cervical spine disability is not manifested by ankylosis of the entire cervical spine. 2. The Veteran is right-handed. 3. The Veteran’s radiculopathy, right upper extremity is manifested by mild incomplete paralysis of the major extremity. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating in excess of 30 percent for osteodegenerative disease of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5235-5243. 2. The criteria for entitlement to an increased rating in excess of 20 percent for radiculopathy, right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, DC 8514. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1981 to July 2008. These issues are on appeal from November 2008, December 2010, June 2015, and October 2019 rating decisions. In September 2014, November 2016, and February 2020, the Board of Veterans’ Appeals remanded these issues for further development. The June 2015 rating decision split the service-connected knee disabilities into two service-connected disabilities. In an October 2019 rating decision, the Agency of Original Jurisdiction (AOJ) split the service-connected left hip disability appeal into three service-connected disabilities. Accordingly, in a February 2020 remand, the Board has recharacterized the left hip and knee issues as shown on the title page of this decision. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. The percentage ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. §§ 4.3, 4.7. Otherwise, the lower rating will be assigned. Id. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial disability rating in excess of 30 percent for osteodegenerative disease of the cervical spine. The Veteran is diagnosed with osteodegenerative disease of the cervical spine and is rated under Diagnostic Code (DC) 5242. The Veteran’s cervical spine has been rated at 30 percent effective August 1, 2008. Spine disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine (“General Rating Formula") unless evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Intervertebral disc syndrome (IVDS) is to be rated under whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The Veteran is not specifically diagnosed with IVDS, so that Rating Formula is not for application. VA examinations show there is no IVDS of the cervical spine. The General Rating Formula DCs 5235-5243 provides for the rating of disabilities of the spine mostly based on limitation of motion. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching around the spine affected by residuals of injury or disease, the relevant parts of the formula for the cervical spine are as follows: A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 30 percent rating is warranted for favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Ankylosis is defined in general as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Colayong v. West, 12 Vet. App. 524 (1999) (citing Dorland’s Illustrated Medical Dictionary (28TH Ed. 1994). The rating criteria provide that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Pertinent to this case, in rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). After a de novo review of the evidence, as explained in further detail below, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for an increased rating for his cervical spine disability in excess of 30 percent. Thus, the claim must be denied. The Veteran underwent a VA examination in December 2010. The Veteran reported soreness of his neck with range of motion. The ranges of motion for the Veteran’s neck were as follows: flexion to 30 degrees or greater; extension 10 degrees or greater; right lateral flexion 25 degrees or greater; left lateral flexion 25 degrees or greater; right lateral rotation 50 degrees or greater; left lateral rotation 50 degrees or greater. There was objective evidence of painful motion. The examiner did not make any clinical findings noting ankylosis. The Veteran was afforded another VA examination in June 2019. The Veteran reported that the loss of range of motion since he developed arthritis of the cervical spine had progressed. His symptoms included an aching neck and pain on movement. The Veteran reported flare-ups of the cervical spine. The ranges of motion for the Veteran’s neck were as follows: flexion to 10 degrees; extension 10 degrees; right lateral flexion 15 degrees; left lateral flexion 20 degrees; right lateral rotation 20 degrees; left lateral rotation 20 degrees. There was pain noted on examination. Additionally, the examiner noted that the Veteran had the following ranges of motion during flare-ups: flexion to 0 degrees; extension 0 degrees; right lateral flexion 15 degrees; left lateral flexion 20 degrees; right lateral rotation 20 degrees; left lateral rotation 20 degrees. The Veteran was able to perform repetitive-use testing with three repetitions, but there was no additional limitation in range of motion of the cervical spine. The functional impact of the Veteran’s cervical spine disability was less movement than normal. There was no ankylosis of the cervical spine. There were no other neurologic abnormalities related to a cervical spine (neck) condition aside from the service-connected right upper extremity radiculopathy. The Board has reviewed the Veteran’s VA and private treatment records for the period on appeal. These records are consistent with the findings of the February 2019 VA examination, and there are no findings of ankylosis. Based on the medical evidence of record that addresses the rating criteria, the Board concludes that no VA examination or private treatment records which reflected findings of the cervical spine that warrant a rating higher than 30 percent. As mentioned above, a 10 percent rating is assigned for forward flexion between 30 and 40 degrees or combined range of motion of 170 to 335 degrees, and a 20 percent rating is warranted for forward flexion between 16 and 30 degrees or a combined range of motion of less than 170 degrees. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. The February 2019 VA examination did not find ankylosis of the cervical spine. Moreover, while the Veteran is rated at 30 percent, a 40 percent rating requires a showing of unfavorable ankylosis of the entire cervical spine, with ankylosis being immobility of the joint. The February 2019 VA examination specifically found no ankylosis. Thus, at no point during the appeal period is a 40 percent rating warranted. The Board acknowledges the Veteran’s statements that his neck disability results in pain and limitation of motion, but based on the current rating criteria, the claim for increased rating in excess of 30 percent for arthritis of the cervical spine is denied. Where the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to an initial disability rating in excess of 20 percent for radiculopathy of the right upper extremity. The Veteran is diagnosed with radiculopathy of the right upper extremity and is rated under DC 8513. The Veteran’s radiculopathy is rated at 20 percent effective March 3, 2010. For the entire appeal period, the Veteran’s right upper extremity radiculopathy is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8513. Under Diagnostic Code 8513, mild incomplete paralysis warrants a 20 percent rating for both the major and minor extremity; moderate incomplete paralysis is rated 40 percent disabling for the major extremity and 30 percent disabling for the minor extremity; severe incomplete paralysis is rated 70 percent disabling for the major extremity and 60 percent for the minor extremity; and complete paralysis is rated 90 percent disabling for the major extremity and 80 percent disabling for the minor extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8513. Another DC for consideration is 8514, for the radial nerve. It provides, in pertinent part, a 20 percent rating for mild incomplete paralysis for both the major and minor extremity, whereas moderate incomplete paralysis is rated 30 percent disabling for the major extremity and 20 percent disabling for the minor extremity. The terms “mild,” “moderate,” and “severe” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Board notes that the Veteran is right-hand dominant; therefore, it is major extremity. See 38 C.F.R. § 4.69. The Board concludes that an increase in excess of 20 percent is not warranted for any point of this appeal period. The Veteran underwent a VA examination in September 2010. He was diagnosed with peripheral neuropathy of the right upper extremity. The Veteran reported that his right hand sometimes tingled and he had radiating pain down his right arm. He is right-hand dominant. The examiner found “no muscle atrophy. Primary sensation shows a deficit for monofilament and light in the distribution of the CS dermatome. There is also a decrease in the deltoid tendon stretch reflex. There is no significant weakness, although testing the strength of the shoulder muscles in the right arm induces some pain. Tendon reflexes are intact.” The Veteran was afforded another VA examination for his cervical spine and right upper extremity in December 2014. The Veteran reported intermittent right hand and arm tingling and numbness. On examination of the upper extremities, the Veteran had hypoactive deep tendon reflexes, strength of 4/5, of the right extremity, and normal sensation bilaterally. There were no trophic changes, such as loss of hair or smooth, shiny skin. There was moderate constant pain, moderate intermittent pain, no paresthesias/dysesthesias, and no numbness. The examiner characterized the Veteran’s incomplete paralysis of the nerves of the right upper extremity as moderate. The Veteran was afforded another VA examination for his cervical spine and right upper extremity in February 2019. The Veteran reported intermittent right hand and arm tingling and numbness. On examination of the upper extremities, the Veteran had normal strength, deep tendon reflexes, normal strength, and normal sensation bilaterally. There were no trophic changes, such as loss of hair or smooth, shiny skin. There was no constant pain, moderate intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness. The examiner characterized the Veteran's incomplete paralysis of the ulnar nerve as mild. The examiner found that the Veteran had mild incomplete paralysis of the right upper radicular group (shoulder), right middle radicular group (elbow), and right lower radicular group (wrist and hand). The Veteran was afforded another VA examination for his upper extremities in July 2020. The Veteran reported intermittent right hand and arm tingling and numbness. On examination of the upper extremities, the Veteran had normal strength, deep tendon reflexes, normal strength, and normal sensation bilaterally. There were no trophic changes, such as loss of hair or smooth, shiny skin. The examiner found that the Veteran had mild incomplete paralysis of the right upper radicular group (shoulder), right middle radicular group (elbow), and right lower radicular group (wrist and hand). Based on these findings, the evidence more closely approximates the criteria for mild incomplete paralysis of the nerves of the right upper extremity, warranting a 20 percent rating assigned under 38 C.F.R. § 4.124a, Diagnostic Code 8514. Initially, the Board notes that the Veteran is right-handed and his symptoms affect his right hand and arm; therefore, the Veteran will receive a rating in accordance with the major side. The Veteran has complaints of tingling and numbness. As his symptoms are wholly sensory in nature, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. There are no medical records of evidence which support a finding that the paralysis of the right upper extremity nerves was complete, or severe, and we find that the weight of the medical evidence against moderate incomplete paralysis. The 2019 and 2020 examinations are persuasive evidence against a finding of more than mild incomplete paralysis. Together they are more probative as to the level of incomplete paralysis in the right upper extremity. While the Veteran believes a moderate rating is appropriate, the preponderance of the evidence is against this contention. The Board has also considered whether separate Diagnostic Codes are applicable. The Veteran has a diagnosis of right upper extremity radiculopathy. Accordingly, Diagnostic Code 8514 is the most appropriate Code for application in this case. See Butts v. Brown, 5 Vet. App. 532 (1993). There is no medical or lay evidence of additional symptoms that would not result in the pyramiding of other related Diagnostic Codes (compare, e.g., DC 8513, which applies to all radicular groups to DC 8510 for upper radicular group only or DC 8511 for middle radicular group only). The Veteran’s right upper extremity radiculopathy is clearly accounted for in the 20 percent disability rating pursuant to Diagnostic Code 8514. Moreover, the Veteran’s symptoms do not appear to have changed significantly during the appeal period so as to warrant a staged rating. In conclusion, the preponderance of the evidence is against a rating in excess of 20 percent for right upper extremity radiculopathy. The benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The claim for increased rating is denied. REASONS FOR REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s increased rating claims for his right knee, left knee, and left hip disabilities. 1. Entitlement to an initial compensable disability rating for limitation of extension of the right knee is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for patellofemoral syndrome of the right knee is remanded. 3. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the left knee is remanded. 4. Entitlement to an initial compensable disability rating for limitation of extension of the left knee is remanded. 5. Entitlement to an initial compensable disability rating for osteoarthritis, subchondral ganglion cyst of acetabulum, dysplasia, and acetabular labral tear of the left hip with limitation of flexion, is remanded. 6. Entitlement to an initial disability rating in excess of 10 percent for osteoarthritis, subchondral ganglion cyst of acetabulum, dysplasia, and acetabular labral tear of the left hip with impairment of the thigh, is remanded. 7. Entitlement to an initial disability rating in excess of 10 percent for osteoarthritis, subchondral ganglion cyst of acetabulum, dysplasia, and acetabular labral tear of the left hip with limitation of extension, is remanded. In order to be adequate, VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The most recent VA examinations of the left hip and knee in April 2020 are unresponsive to the guidance provided in Sharp. In this case, the examiner stated that “After review of the Veteran’s records including the order request, DBQ, physical exam, reported history and subjective complaints, relevant evidence of record and using my medical knowledge and expertise, I have no basis to offer additional losses of function or motion with repetitive use.” The examiner offered the same rationale for additional losses of function or motion as a result of flare-ups. There is no evidence that the examiner attempted to estimate any additional functional loss with flare-ups and repetitive use, including any resulting of loss of range of motion, based on relevant information elicited from the Veteran, to include the Veteran’s description of his ranges of motion during these events, as required by Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Accordingly, the Board finds that the examinations are not in compliance with Sharp. As such, these examination reports must be returned as inadequate for rating purposes pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The matters are REMANDED for the following action: 1. Associate with the claims folder records of the Veteran’s updated private and/or VA treatment records. 2. Afford the Veteran appropriate VA examinations with a new VA examiner to determine the nature and severity of his service-connected right knee, left knee and left hip disabilities. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.