Citation Nr: 21007907 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 13-28 253A DATE: February 11, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for residuals of a right knee meniscectomy (formerly classified as right knee strain) is denied. Entitlement to an effective date of November 25, 2003, but no sooner, for the award of service connection for radiculopathy, right upper extremity is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an effective date of November 25, 2003, but no sooner, for the award of service connection for radiculopathy, left upper extremity is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to a disability rating in excess of 20 percent for cervical degenerative arthritis (formally claimed as cervical strain) is remanded. Entitlement to an initial disability rating higher than 20 percent for radiculopathy of the right upper extremity is remanded. Entitlement to an initial disability rating higher than 20 percent for radiculopathy of the left upper extremity is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's residuals of right knee meniscectomy were manifested by no worse than 110 degrees of flexion and 10 degrees of extension with complaints of painful motion. 2. Within one year of the February 2010 rating decision, the Department of Veterans Affairs (VA) came into constructive possession of new and material VA treatment records that prevented the finality of that rating decision. 3. The Veteran had a November 2003 claim for upper extremity radiculopathy pending. 4. Resolving all doubt in favor of the Veteran, the Veteran’s radiculopathy began prior to November 2003. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of right knee meniscectomy have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5260, 5261. 2. The criteria for an effective date of November 25, 2003, but no earlier, for the award of service connection for right upper extremity radiculopathy have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.400, 19.52. 3. The criteria for an effective date of November 25, 2003, but no earlier, for the award of service connection for left upper extremity radiculopathy have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.400, 19.52. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1990 to September 1991, from February 2003 to November 2003, from August 2004 to August 2005, and from April 2008 to June 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2012 and December 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The issues of increased rating for the spine and knee disabilities and TDIU were previously before the Board in December 2017 and March 2019 and were remanded for additional development. These matters are once again before the Board. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the action. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Further, although pain may cause a functional loss, pain itself does not constitute functional loss. Under 38 C.F.R. § 4.59, at least the minimum compensable rating is warranted for actually painful, unstable, or malaligned joints. The plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the [Diagnostic Code] under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016) (holding that the criteria of 38 C.F.R. § 4.59 applies in foot disabilities involving pain such as Diagnostic Code 5280). The provisions of 38 C.F.R. § 4.49 relating to painful motion are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). Right knee The Veteran’s right knee disability is currently assigned a 10 percent rating for arthritis under DC 5010-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. DC 5010, for arthritis due to trauma, provides for evaluation of a service-connected disability based on limitation of motion of the affected joint. During the pendency of the appeal, the Veteran was granted a 20 percent disability evaluation for status post right knee partial medial meniscotomy under DC 5258. This is the highest evaluation available under DC 5258. DC 5260 provides disability ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees warrants a 0 percent rating. Flexion of the leg limited to 45 degrees warrants a 10 percent rating. Flexion of the leg limited to 30 degrees warrants a 20 percent rating. Flexion of the leg limited to 15 degrees warrants a 30 percent rating. The ratings criteria also contemplate limitation of extension under DC 5261. Extension of the leg limited to 5 degrees warrants a 0 percent rating. Extension of the leg limited to 10 degrees warrants a 10 percent rating. Extension of the leg limited to 15 degrees warrants a 20 percent rating. Extension of the leg limited to 20 degrees warrants a 30 percent rating. Extension of the leg limited to 30 degrees warrants a 40 percent rating. Extension of the leg limited to 45 degrees warrants a 50 percent rating. Other diagnostic codes relating to the knee are DC 5256 for ankylosis, DC 5262 for impairment of tibia and fibula, and DC 5263 for genu recurvatum. As these conditions are not shown on examination of the Veteran, or in the medical evidence of record, the Board finds that application of these diagnostic codes is not warranted. 38 C.F.R. § 4.71a. The Veteran presented for three examinations during the appeal period: December 2011, April 2018, and February 2020. In December 2011, the Veteran’s active range of motion measurement for extension to flexion was zero to 135 degrees. The Veteran was able to perform the repetitive use test without additional functional loss. The Veteran reported painful flare-ups that decreased his range of motion; however, the examiner did not quantify the functional loss in terms of range of motion. The Veteran’s strength and stability tests were normal. In April 2018, the Veteran reported flare-ups when bumped or walking more than 100 yards. His active range of motion measurement for extension to flexion was 10 to 115 degrees. The Veteran was unable to perform the repetitive use test. The examiner was unable to describe functional loss during repeated use and flare-ups without resorting to speculation. Following the March 2019 Board remand, the Veteran was afforded an additional VA examination in February 2020. The Veteran’s active range of motion measurement for extension to flexion was zero to 110 degrees. Pain was noted on movement, but the examiner did not anticipate any functional loss in terms of range of motion. The Veteran reported flare-ups occurring if he walked or rode his bike distances greater that 100 yards. The Veteran reported frequent episodes of joint locking, pain and effusion, which the examiner attributed to his meniscal tear repair. As noted above, the Veteran was granted an evaluation under DC 5258 during the pendency of this claim. Also of record are VA and private medical treatment records, which reflect the Veteran reporting knee pain. These records do not reflect symptomology worse than what is described in the VA examinations of record. In assessing the evidence of record, the Board acknowledges the Veteran is competent to provide evidence regarding the lay observable symptoms associated with his knee disability. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, he is not competent to identify a specific level of disability of his right knee disability according to the appropriate DC. Such competent evidence concerning the nature and extent of the Veteran’s knee disability has been provided by VA medical professionals who have objectively examined him. The medical findings directly address the criteria under which the right knee disability is evaluated. Id. The medical findings directly address the criteria under which the right knee disability is evaluated. The Board finds these clinical records to be competent, objective, and probative evidence of record, and is therefore accorded greater weight than the Veteran’s subjective complaints of increased symptomatology. Even when considering the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59, as well as the symptoms reported in the light most favorably to the Veteran, the evidence does not show the functional equivalent of disability required for a higher evaluation. In this capacity the Board has considered the Veteran’s February 2020 statement regarding the use of an assistive device, including a brace and cane for stability. See February 2020 VA examination. However, all three VA knee examinations conducted four different tests to determine whether there was instability of the knee joint and each test indicated that the Veteran’s knee was stable. Moreover, the Veteran has not otherwise reported instability. C.f., English v. Wilkie, 30 Vet. App. 347 (2018). Accordingly, while the Board has considered the Veteran’s statement, it finds that the medical evidence of record is more probative. Regarding the right knee arthritis, the Veteran’s limitation of extension was limited to 10 degrees which is consistent with a 10 percent disability rating. Throughout the rating period on appeal, the Veteran's residuals of right knee meniscectomy were manifested by no worse than 110 degrees of flexion and 10 degrees of extension. Although painful motion in the joint has been documented, the Veteran is being compensated based on limitation of motion and a separate rating for painful motion under 38 C.F.R. § 4.59 is not warranted. Accordingly, entitlement to disability ratings in excess of 10 percent for right knee arthritis is denied. Effective Date Generally, the effective date of a grant of service connection is based on either the date the original claim was received; the date the petition to reopen the claim was received after a final disallowance; or the date the entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim was received within one year of separation from service, the effective date of a grant of service connection shall be the day following separation from service or the date the entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155 (2016). The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because this claim was initiated prior to that date, the former regulations apply. In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b) (2014). The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. Earlier effective date for right upper extremity radiculopathy. Earlier effective date for left upper extremity radiculopathy. The Veteran contends that he is entitled to an effective date prior to August 18, 2015 for the award of service connection for his upper extremity radiculopathy. In a December 2018 rating decision, the Veteran was granted service connection for his bilateral upper extremity radiculopathy, effective October 27, 2017. The Veteran filed a Notice of Disagreement (NOD) regarding the effective date for service connection for bilateral radiculopathy. During the pendency of the appeal the Veteran was granted service connection effective August 18, 2015. For the reasons set forth below, the Board finds the Veteran had an unadjudicated claim for bilateral upper extremity radiculopathy pending from November 2003. As such, the effective date for service connection for the Veteran’s right and left upper extremity radiculopathy should be November 25, 2003, the day after he was discharged from the period of active duty service in which the claim originated. Following a September 2003 report of medical assessment for separation, an informal claim for a right and left upper extremity neurological condition was opened. A December 2003 deferred rating decision was issued for the upper extremity neurological condition, but a final decision was never issued. The deferred rating decision stated the Veteran was involved in a motor vehicle accident and an opinion was needed regarding the accident. Additionally, the deferred rating stated a duty to assist letter requesting evidence of a compensable neurological condition of both upper extremities within one year of discharge was needed and to inform the Veteran of a pending examination. The record demonstrates no further development was done on the issue until June 2009 when the Veteran filed a new claim for service connection for radiculopathy (claimed as numbness and tingling in the upper extremities). Since the November 2003 informal claim remained pending, the appeal period for the June 2009 claim began in November 2003. In a February 2010 rating decision, service connection for the Veteran’s radiculopathy was denied. On February 4, 2010, the Veteran was sent a notification letter in conjunction with this rating decision informing him of the decision and his appellate rights. He did not appeal this decision. However, VA medical records were created within the one-year appeal period following the February 2010 rating decision and were constructively in VA's possession for the purposes of § 3.156(b). As no determination was made as to whether this evidence was new and material pursuant to § 3.156(b), the February 2010 rating decision did not become final. See Lang v. Wilkie, 971 F.3d 1348 (2020). In June 2011, the Veteran filed a claim for an increase rating for his service-connected cervical strain (claimed as a neck condition). In April 2012, the Veteran’s 20 percent rating for his cervical spine disability was continued. The Veteran filed a NOD regarding that decision. In a December 2017 Board decision, the issue of entitlement to a separate rating for the Veteran’s bilateral radiculopathy was added to the Veteran’s claim and remanded for further development. Subsequently, a December 2018 rating decision granted service connection for both the right and left upper extremity radiculopathy effective October 27, 2017. The Veteran appealed that decision. During the course of the appeal, an effective date of April 18, 2015 was granted based on an earlier diagnosis within the appeal period. As noted above; while the Veteran neither disagreed with the February 2010 rating decision nor submitted a claim to reopen entitlement to service connection within one year of receiving the decision, the Veteran continued to receive treatment at a VA facility, and treatment records containing evidence relevant to the claim were created within one year of the February 2010 denial. Those records were constructively before the Agency of Original Jurisdiction (AOJ), but the AOJ never determined whether the evidence was new and material. Therefore, the February 2010 rating decision did not become final and the Veteran's December 2003 claim remained pending. 38C.F.R. §3.156(b); Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014); Lang supra. April and October 2010 treatment records demonstrate the Veteran reported chronic pain with radiation to his arms and hands. The Board must assess whether, pursuant to 38 C.F.R. §§ 3.156(b), these VA treatment records received within one year of the February 2010 rating decision constitute new and material evidence, as defined in subsection (a) to determine if the finality of the February 2010 rating decision stands. New and material evidence received prior to the expiration of the appeal period is considered as having been filed in connection with the claim which was pending at the beginning of the appeal period and will prevent finality of the February 2010 rating decision. See 38 C.F.R. § 3.156(b). When the Veteran's claim was originally denied, in February 2010, VA noted that the Veteran did not have a current diagnosis of radiculopathy, in part, because the Veteran did not report symptoms at a January 2010 VA examination. The Board finds the new April and October 2010 records material because they reflect an unestablished element of the claim - evidence of a current diagnosis. Where new and material evidence is received within the one-year appeal period or prior to appellate decision, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1). Thus, the Veteran’s claim has been pending since November 2003. In evaluating whether an earlier effective date is warranted, the Board needs to determine when the Veteran’s condition was entitlement arose. In May 2003, the Veteran was involved in a motor vehicle accident, which was determined to be in the line of duty. See October 2003 Statement of examination and line of duty status report. Following the motor vehicle accident, the Veteran consistently complained of numbness and tingling in his upper extremities. See July 2003 Service treatment records. Also of record are July 2005 treatment notes from the Veteran’s physical therapist which indicate the Veteran had parasthesia (which is tingling, see DORLAND'S MEDICAL DICTIONARY) throughout his upper extremities likely precipitated by the May 2003 motor vehicle accident. Usually lay statements are not competent to diagnose complex medical matters such as neurological conditions. However, lay evidence may establish a diagnosis when describing symptoms that later support a diagnosis by a medical professional, Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, after an August 2008 MRI (magnetic resonance imaging), the Veteran was diagnosed with cervical radiculopathy. As any reasonable doubt must be resolved in the Veteran's favor, the Board finds entitlement in this case arose prior to the Veteran's November 2003 claim. The Veteran’s claim was received within one year of separation from service. Therefore, the effective date of a grant of service connection shall be the day following separation from service or the date the entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). The Board affords the Veteran the benefit of the doubt and finds that he is entitled to an effective date of November 25, 2003, the day following separation from the period of active duty service in which the claim originated. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for cervical degenerative arthritis (formally claimed as cervical strain) is remanded. The Veteran is seeking a higher disability rating for his service-connected cervical spine disability, which is awarded a 20 percent rating under DC 5242. In February 2020, the Veteran underwent a cervical spine VA examination. The Veteran reported flare-ups that began approximately 9 months prior. He described his flare-ups as spasms that made him unable to move until he “massaged it out.” The examiner concluded that those spasms did not result in an abnormal gait. The examiner stated that during repetitive use and flare-ups “additional loss of range of motion was not anticipated, however functional loss due to pain.” The Board finds this confusing and ambiguous. The examiner gives the impression that no additional loss of range of motion is likely, then states there is additional loss of range of motion due to pain. Once VA undertakes the effort to provide an examination, or obtain an opinion, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds the February 2020 VA examination to be incomplete with respect to the statement regarding functional loss during flare-ups and repetitive use. The Board acknowledges that the internal inconsistency might be the result of a typographical error; however, out of an abundance of caution, the Board finds that a remand is warranted to obtain an addendum medical opinion. 2. Entitlement to an increased evaluation for radiculopathy of the right upper extremity is remanded. 3. Entitlement to an increased evaluation for radiculopathy of the left upper extremity is remanded. In January 2019 the Veteran submitted a Notice of Disagreement (NOD) to the December 2018 rating decision which granted service connection for bilateral radiculopathy of the upper extremities with an initial disability rating of 20 percent for the right and 20 percent for the left. The Veteran noted his area of disagreement as the “effective date of the award.” While the Veteran did not check the “evaluation of disability” box, he wrote 60 percent in the evaluation sought column. The Board finds this notation sufficient to be construed as a substantive appeal for a higher evaluation. See 38 C.F.R. § 20.202. In December 2019, the RO issued a Statement of the Case (SOC) addressing the earlier effective date claims but did not address the increased rating claims. On his February 2020 VA Form 9, Appeal to the Board of Veteran’s Appeals, the Veteran reiterated his request for an increased rating to 60 percent. Because the RO has yet to issue an SOC addressing the entitlement to an increased disability rating for the radiculopathy of the right and left upper extremities, a remand is necessary. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). 4. TDIU is remanded. The issue of entitlement to a TDIU has been raised as part and parcel to the Veteran’s claim for higher disability ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As the issue of entitlement to TDIU can be impacted by resolution of the Veteran’s radiculopathy claims, the Board finds that the issue of entitlement to TDIU must also be remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cervical spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, 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. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page.)   2. Send the Veteran and his representative a statement of the case that addresses the issues of entitlement to an increased disability rating for radiculopathy of the upper right and left extremities. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.V. Palatt, 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.