Citation Nr: 21008944 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 13-27 704 DATE: February 18, 2021 ORDER A rating in excess of 10 percent for degenerative arthritis of the right knee is denied. REMANDED An initial rating in excess of 20 percent for cervical spine disability is remanded. An initial rating in excess of 10 percent prior to June 25, 2013, and in excess of 20 percent thereafter for lumbar spine disorder, is remanded. The propriety of the separately assigned rating for radiculopathy of the right lower extremity, evaluated as 10 percent disabling, effective September 16, 2010, is remanded. The propriety of the separately assigned rating for radiculopathy of the left lower extremity, evaluated as 10 percent disabling, effective September 16, 2010, is remanded. Entitlement to service connection for narcolepsy, to include as secondary to service-connected obstructive sleep apnea, is remanded. Entitlement to a total disability based on individual unemployability based on service-connected disabilities (TDIU), is remanded. FINDING OF FACT For the entire appeal period, the Veteran’s degenerative arthritis of the right knee is manifested by objective evidence of arthritis with painful motion resulting in full flexion and full extension, from zero to 140 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination or as a result of repetitive motion and/or flare-ups, without ankylosis, recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, impairment of the tibia or fibular, or genu recurvatum. CONCLUSIONS OF LAW The criteria for a rating in excess of 10 percent for degenerative arthritis of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5003-5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2002 to September 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in February 2011 and March 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017 and November 2019, the Board remanded the claim for an initial rating in excess of 20 percent for cervical spine disability, and the claim for a rating in excess of 10 percent for lumbar spine degenerative changes with right side radiculopathy for additional development. While on remand, in an August 2020 rating decision the Agency of Original Jurisdiction (AOJ), assigned separate ratings for right and left lower extremity radiculopathy affecting the femoral nerve, evaluated as 10 percent disabling, effective September 16, 2010. Additionally, in the August 2020 rating decision, the AOJ awarded a 10 percent rating for lumbosacral strain for the appeal period prior to June 25, 2013, and 20 percent thereafter. The Board notes that the Veteran did not appeal with respect to the propriety of the assigned ratings or effective dates for such disabilities; however, these issues are part and parcel of his claim for entitlement to an increased rating for his lumbar spine disability as the rating criteria governing the evaluation of such disability specifically indicates that any associated objective neurologic abnormalities be separately evaluated under an appropriate DC. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Therefore, such issues have been included in the decision and will be addressed herein. The Board also notes that additional claims, to include a claim for an increased rating for degenerative arthritis of the right knee, entitlement to service connection for narcolepsy, to include as secondary to service-connected obstructive sleep apnea, and entitlement to a TDIU, were certified to the Board in June 2020. As such, the Board has included such issues in this decision, and they will be addressed herein. Additional records have been associated with the record, to include VA treatment records, since the issuance of the September 2019 statement of the case and August 2020 supplemental statement of the case. In this regard, the Board notes that the additional evidence is not relevant to the increased rating claim for degenerative arthritis. Therefore, there is no prejudice to the Veteran in adjudicating the claim. With respect to the remaining issues on appeal, as the Board is remanding these issues for further development, this additional evidence will by considered in the adjudication of those claims. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All 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 disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The period on appeal begins on January 10, 2017, the date VA received his claim for increased rating, plus the one year look-back period. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran’s degenerative arthritis of the right knee is rated as 10 percent disabling for the entire appeal period pursuant to DCs 5003-5260. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. In the absence of limitation of motion, DC 5003 provides for a 10 percent rating with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating under DC 5003 requires involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. For the purpose of rating disability from arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, DC 5260 and 5261. DC 5260 provides for a zero percent rating where flexion of the leg is only limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. For a 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. DC 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. VA’s General Counsel has stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). Turning to the evidence of record, the Veteran was afforded a VA examination in February 2017. At such time, he reported persistent pain with weight bearing and that his knee “pops a lot.” Upon examination, the Veteran had right knee range of motion from zero to 140 degrees. There was no evidence of pain with weight-bearing, or localized tenderness or pain on palpitation of the joint. The Veteran denied flare-ups of the right knee. His joint stability tests were normal and there was no evidence or history of recurrent patellar subluxation or dislocation, impairment of the tibia and/or fibula, meniscal conditions, or surgery. The Veteran was afforded another VA examination in February 2019. At the time, he reported constant aching pain in the right knee, which increases with walking. The Veteran also reported that he cannot run or squat, however he denied experiencing flare-ups of the right knee. Upon examination, the Veteran had full flexion and extension from zero to 140 degrees with pain, to include with weight-bearing. There was evidence of crepitus, however no localized tenderness of pain on palpitation of the joint or associated tissue was reported. The Veteran was able to perform repetitive use testing, without additional loss of function or range of motion. While the Veteran was not examined after repetitive use over time, the examiner opined that pain limits functional ability with repeated use; however, it does not result in loss of range of motion. His muscle strength was normal and no ankylosis was present. His joint stability tests were normal and there was no evidence or history of recurrent patellar subluxation or dislocation, impairment of the tibia and/or fibula, meniscal conditions, or surgery. The examiner noted that the Veteran’s right knee disability impacted his ability to work as he should avoid stairs and squatting, and limit walking to 30 minutes at a time or four to five hours a day. Based on the foregoing, the Board finds that a rating in excess of 10 percent pursuant to DC 5260, is not warranted. Specifically, in order to warrant a higher rating of 20 percent under DC 5260, flexion must be limited to 30 degrees. Furthermore, in order to warrant a separate compensable rating under DC 5261, extension must be limited to 10 degrees. In this regard, at no point during the appeal period, did the Veteran’s right knee disability result in flexion limited to 30 degrees and/or extension limited to 10 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Specifically, at the February 2017 and February 2019 VA examinations, the Veterans right knee flexion was to 140 degrees and extension to 0 degrees, without any additional loss or decrease in range of motion following repetitive use testing. The Veteran also denied experiencing flare-ups throughout the entirety of the appeal period. Thus, a rating in excess of 10 percent under DC 5260, or a higher or separate rating under DC 5261 is not warranted. The Board has also considered whether the Veteran is entitled to a higher or separate rating under DCs 5256, 5257, 5258, 5259, 5262, and 5263. However, as there is no evidence of ankylosis, recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum at any point during the appeal period, such ratings are not warranted. The Board acknowledges the Veteran’s belief that his right knee disability is more severe than the current disability rating reflects. However, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. The Board has also considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected right knee disability is warranted; however, the evidence indicates the severity of such disabilities has remained stable throughout each period on appeal. Therefore, assigning additional staged ratings for such disability is not warranted. As a final matter, the Board notes that the criteria for knee disabilities have changed during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 75453 (November 30, 2020). When a law or regulation changes during the pendency of a Veteran’s appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change. However, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 3541 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. The Board has considered these changes and finds that the new criteria respecting evaluations of knee disabilities are not as advantageous to the Veteran in this case. Specifically, the significant changes related to knee disabilities were to add Diagnostic Code 5002 for active arthritic process, which the Veteran does not have; change the total replacement and resurfacing criteria under Diagnostic Code 5055, again, which the Veteran does not have in this case; and, finally, to add the requirement of assistive devices to the criteria for Diagnostic Code 5257, which is not present in the old pre-February 7, 2021 criteria. In this case, the Veteran is not shown to use crutches, a walker, a cane, or a right knee brace throughout the appeal period. The Board, therefore, does not find that a higher evaluation for the period beginning February 7, 2021, for the Veteran’s right knee disability when contemplating the new Rating Schedule criteria effective that date. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claims addressed herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching the foregoing determinations, the Board finds the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for his right knee disability. Therefore, the benefit of the doubt doctrine is not applicable, and his increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Relevant to the Veteran’s claims for higher initial ratings for his thoracolumbar and cervical spine disabilities, the Court has held that, where the record does not adequately reveal the current state of claimant’s disabilities, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). In regard to the Veteran’s cervical spine disorder, the record reflects that the Veteran was most recently afforded a Neck Conditions disability benefits questionnaires (DBQs) in February 2018. Additionally, the Veteran was most recently afforded a Back Conditions DBQ in February 2018 and June 2019. However, the Board finds such examinations inadequate for adjudication purposes. In regard to his cervical spine disability, in the February 2018 Neck Conditions DBQ, the examiner did answer question as to the pain with weightbearing and non-weightbearing, passive range of motion, and active range of motion, the examiner did not provide adequate explanations or rationale for his answers and he did not provide any specific values for active or passive range of motion testing. Specifically, the examiner noted that passive range of motion could not be conducted as it was not feasible to do so in a safe and reasonable manner. However, the examiner also found that there was no evidence of pain on examination or non-weightbearing. As the examiner provided no explanation for his findings, which are somewhat contradictory, a new examination should include testing compliant with Correia v. McDonald, 28 Vet. App. 158 (2016), along with thorough explanations of the examiner’s findings. Additionally, the Veteran reported flare-ups of the cervical spine and lumbar spine at the examinations. In the February 2018 Neck and Back Conditions DBQs the examiner indicated that an opinion as to the Veteran’s symptoms during a flare-up or following repeated use over time could not be provided without resorting to speculation. The examiner did not, however, explain what additional evidence would be necessary before an opinion could be rendered. Additionally, the June 2019 examiner provided that Veteran experiencing functional loss during flare-ups but was unable to describe in terms of range of motion. Again, the examiner did not explain what additional evidence would be necessary before an opinion could be rendered. The Board notes that the Court has held that VA examiners must offer opinions regarding flare-ups and functional impairment, based on estimates derived from information procured from relevant sources, including a Veteran’s lay statements. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Furthermore, the Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of veterans. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. Therefore, the Board finds a remand necessary to afford the Veteran VA examinations to address such matters discussed herein. Furthermore, the Board finds that the issues of the propriety of the separate 10 percent ratings for RLE and LLE radiculopathy are inextricably intertwined with the remanded claim herein for an increased rating of the Veteran’s back disability. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Therefore, adjudication of such claims must be deferred pending the outcome of the aforementioned claim remanded herein. Regarding his narcolepsy claim, the Veteran contends that his symptoms are secondary to his service-connected obstructive sleep apnea. The Veteran was provided a VA examination in February 2017. The VA examination report notes that the Veteran was diagnosed with narcolepsy in March 2015. The examiner concluded that the Veteran’s narcolepsy was less likely as not proximately due to or the result of sleep apnea. As rationale, he provided that daytime sleepiness can be associated with sleep apnea and narcolepsy, but he is not aware of any literature to support the notion that narcolepsy is due to sleep apnea. Thereafter, in April 2019, the same VA examiner provided an addendum opinion regarding the Veteran’s narcolepsy. The examiner provided that his narcolepsy is less likely as not incurred in or caused by sleep problems during service. It was noted that his opinion was based on an evaluation of the Veteran’s medical records and the absence of a diagnosis that incurred in service or caused by sleep problems during service. The examiner again provided that the Veteran’s narcolepsy is not due to his service-connected sleep apnea and provided the same rationale as in the February 2017 opinion. Thereafter, in May 2019, the examiner provided that the Veteran’s narcolepsy is less likely as not aggravated beyond its natural progression by his service-connected sleep apnea. However, the examiner failed to provide a rationale to support his conclusion that the Veteran’s narcolepsy is not aggravated by his sleep apnea. The Board finds the VA examiner’s opinion inadequate for the purposes of deciding the Veteran’s claim. Specifically, the examiner’s opinions were conclusory, and did not provide adequate rationale. The examiner also failed to discuss the Veteran’s May 2017 assertion that he had narcolepsy when he was first diagnosed with sleep apnea and that a study published in Sleep Medicine, discovered that sleep apnea can delay the diagnosis of narcolepsy. Finally, the Board notes that the absence of a diagnosis of narcolepsy in service cannot form the basis of a negative opinion. Thus, the Board finds a remand is necessary in order to obtain an addendum opinion which adequately addresses the etiology of the Veteran’s currently diagnosed narcolepsy. Finally, the Board finds that the issue of entitlement to a TDIU is inextricably intertwined with the increased rating claims currently on appeal. A hypothetical grant of the pending claims could significantly change the adjudication of the TDIU issues, as grants would increase the Veteran’s overall combined disability percentage. Furthermore, the Veteran has alleged that all of his service-connected disabilities, to include his spine and neck disabilities, have interfered with his ability to secure and maintain gainful employment. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). Consideration of entitlement to a TDIU must therefore be deferred until the intertwined issues are resolved. See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate examiner so as to determine the nature and severity of his service-connected cervical and lumbar spine disabilities. The VA examiner is directed to conduct range of motion testing and provide commentary regarding symptoms including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Any additional loss of motion or function (decreased or abnormal excursion, strength, speed, coordination, or endurance) with repetitive movement must be noted. Any range of motion testing should be conducted in both active and passive range of motion, as well as in weightbearing and non-weightbearing conditions. The examiner must inquire as to periods of flare-up and following repeated use over time, and note the frequency of duration of any such flare-ups. The examiner must also estimate the additional loss of function, expressed in degrees of motion, during such flare-ups, to the extent possible. The VA examiner should comment on how and to what extent these manifestations affect the Veteran. If the severity of these manifestations cannot be quantified, the examiner must so indicate and fully explain the reasons therefore, and what additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for any opinion given. 2. Obtain an addendum opinion with regards to narcolepsy from an appropriate sleep specialist who has not previously participated in this case. The claims file, to include this Remand, should be forwarded to and reviewed by the examiner; the need for an examination of the Veteran is left to the discretion of the examiner, as deemed appropriate. Following a full review of the record (and examination if deemed necessary), the VA examiner should provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s narcolepsy was incurred in or caused by his service. The examiner is advised that the absence of a diagnosis in service cannot be the basis of a negative opinion. If the examiner cannot find that his narcolepsy was directly related to military service, the examiner should then provide an opinion as to whether it is at least as likely as not that the Veteran’s narcolepsy is (a) caused by or (b) aggravated (i.e. worsened) beyond its natural progression by his service-connected sleep apnea. The examiner must consider and address the Veteran’s May 2017 contentions, as well as the medical literature submitted by the Veteran that his diagnosis of sleep apnea delayed his diagnosis of narcolepsy. The examiner is reminded that a full and complete opinion with regards to secondary service connection will contemplate both prongs (a) and (b), with separate rationales provided for the conclusions reached with regards to those prongs. The examiner must provide a complete rationale for all opinions and conclusions reached. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite 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.