Citation Nr: 21008272 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 15-10 023 DATE: February 12, 2021 ORDER The claim for an initial disability rating in excess of 10 percent for lumbar spine strain (lumbar strain) is denied. The claim for an initial compensable rating for left knee strain is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine disability is manifested, at worst, by forward flexion to 80 degrees and combined range of motion of 205 degrees, without guarding or muscle spasm resulting in abnormal gait or spinal contour, ankylosis of the spine, or doctor prescribed bedrest for incapacitating episodes. 2. The Veteran's left knee disability is manifested by pain and noncompensable limitation of flexion and extension without instability. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for lumbar spine strain disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237, 5243. 2. The criteria for an increased rating in excess of 10 percent for left knee strain are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71 (a), Diagnostic Codes 5260, 5061. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January to April 1979, February 1983 to October 1985, January to September 1998, October 1998 to September 1999, November 1999 to September 2001, November 2001 to September 2003, June 2004 to November 2005, and January 2009 to January 2010. The claim was remanded by the Board in June 2019 for additional development. The claim has been returned now that there has been substantial compliance with the remand order. The issue of service connection for kidney disease was granted in an October 2020 rating decision. As this represents a full grant of the benefits on appeal, the claim for service connection is moot and will not be considered herein. Increased Rating 1. Entitlement to an initial disability rating in excess of 10 percent for lumbar strain The Veteran contends that he is entitled to a higher initial rating, although he has not specifically explained this contention. Unfortunately, the Board finds that the evidence of record does not support am initial rating in excess of 10 percent for lumbar strain. Disabilities of the spine, such as lumbar strain, can be rated according to the General Rating Formula for Diseases and Injuries of the Spine, which allows for separate ratings for neurologic disabilities, or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, depending on whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 3.25. Under the formula for rating spine disorders (Diagnostic Codes 5235-5242), the next highest disability rating, 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 where forward thoracolumbar flexion is limited to 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent evaluation contemplates unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula of Disease and Injuries of the Spine. Unfavorable ankylosis is a condition where the entire thoracolumbar spine is held in flexion or extension and the condition 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. 38 C.F.R. § 4.71a, General Rating Formula of Disease and Injuries of the Spine, Note (5). 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). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Under the formula for IVDS based on incapacitating episodes, 38 C.F.R. § 4.71a, Diagnostic Code 5243, the next highest disability rating, a 20 percent rating, is warranted where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability rating contemplates incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent rating contemplates incapacitating episodes having a total duration of at least six weeks during the past twelve months. These criteria are an alternative to rating on the basis of orthopedic and neurologic manifestations under the General Formula for Diseases and Injuries of the Spine, and a rating is assigned on the basis of whichever method results in the higher rating. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). In order to be awarded a disability rating in excess of 10 percent, the evidence must demonstrate forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, ankylosis, or doctor prescribed bedrest for incapacitating episodes having a total duration of at least two weeks during the past twelve months. The Board notes that throughout two VA examinations and many pages of VA and private treatment records, forward flexion has been limited at most to 80 percent and combined range of thoracolumbar motion has been limited at most to 205 degrees. Use after three repetitions and factors such as pain, flare-ups, fatigue, weakness, and incoordination have not been shown to result in additional limitation of motion or compensable loss of function. Moreover, guarding and spasms resulting in abnormal gait or spinal contour have not been noted and were specifically denied during the January 2020 VA examination. The Board further notes that ankylosis has never been demonstrated. In fact, each VA examiner found that there was no ankylosis and found that the Veteran was able to bend his back in all ways. Throughout this period, the Veteran has demonstrated an ability to move the spine in all directions. The evidence, including the lay evidence, shows no indication whatsoever that the spine has been fixed in extension or flexion at any time during this period, thus demonstrating the absence of ankylosis. Therefore, an increased rating in excess of 10 percent is not warranted under Diagnostic Code 5242 or the general rating formula for spine disorders. Similarly, the evidence does not demonstrate that the Veteran has ever been prescribed two weeks or more of bedrest by a doctor. The Veteran has not described any period of such bedrest, certainly not lasting two weeks of any year. As such, a rating in excess of 10 percent is not warranted under the rating criteria for IVDS. The Board notes that all possibly relevant diagnostic codes have been considered but finds that no other codes are applicable. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that his back disability is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. Therefore, there is no basis on which to grant an increased schedular rating in excess of 10 percent for the service-connected lumbar strain. The Board concludes that the preponderance of the evidence is against the Veteran’s claim for an initial rating in excess of 10 percent for lumbar strain. 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. The claim for an initial compensable rating for left knee disability The Veteran contends that he is entitled to an initial compensable disability rating for his left knee disability, although he has not specifically explained his rationale. Unfortunately, the Board finds that the preponderance of the evidence is against the award of a compensable disability rating for his left knee strain. The Veteran’s left knee strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5261, for limitation of extension of the leg, as noncompensable based on extension limited to 5 degrees. Under Diagnostic Code 5261, the next highest rating, 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. Limitation of flexion is rated under 38 C.F.R. § 4.71 (a), Diagnostic Code 5260., which provides that a 10 percent rating is warranted where flexion of the leg is limited to 45 degrees and a 20 percent rating is warranted where flexion is limited to 30 degrees. Where flexion is limited to 15 degrees, a 30 percent rating is warranted. 38 C.F.R. § 4.71 (a), Diagnostic Code 5260. Full range of motion in the knee is from 0 degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5257, when there is recurrent subluxation or lateral instability which is mild, moderate, or severe, a 10, 20, and 30 percent is awarded, respectively. 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). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In order to be awarded an initial compensable disability rating, the evidence must demonstrate limitation of flexion to 45 degrees, limitation of flexion to 10 degrees, or subluxation/instability. The Board finds that the preponderance of the evidence is against a compensable rating for left knee strain. The evidence, which includes VA examinations in October 2010 and January 2020, as well as many VA and private treatment records, shows that the Veteran’s extension was to five degrees during his first VA examination and he had full extension during his second examination. Throughout the claim, the Veteran’s flexion has been full, without impairment. The examiners found that his extension and flexion was not further limited following repetition or by functional factors such as pain, weakness, fatigue, and incoordination. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and stiffness. However, even considering his lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating extension limited to 10 degrees or flexion to 45 degrees. The 2010 VA noted the Veteran’s reports that he can still do his normal activities and that his flare ups, which occur every three to four months, result in his needing to rest with excessive high impact running and “long weight bearing.” The 2014 VA examiner found stated that there was disability demonstrated at that exam that would be disabling, disfiguring, interrupt, or otherwise limit or cause an inability of this veteran to participate in any physical capacity. Such statements from the Veteran and the examiners support the finding that his left knee strain is severe enough to warrant the next highest disability rating. In addition, the evidence has not demonstrated subluxation or instability at any time during this appeal and the two VA examiners specifically found that he did not have subluxation or instability. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. However, there is no evidence of symptomatology or impairment that is not contemplated and encompassed by the Diagnostic Codes considered above. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for left knee strain. 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. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. B., 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.