Citation Nr: 21009395 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-48 963 DATE: February 22, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a right knee strain is denied. Entitlement to an initial rating in excess of 10 percent for a left knee strain is denied. Entitlement to a combined rating in excess of 50 percent for lumbar spine degenerative disc disease and bilateral lower extremity sciatic radiculopathy prior to April 22, 2016 is denied. REMANDED Entitlement to a separate rating for a bowel condition secondary to service-connected disease or injury is remanded. FINDINGS OF FACT 1. The Veteran’s right knee strain has been manifested by complaints of pain, painful motion with limitation of flexion at worst to 90 degrees, with no limitation of extension, but with difficulty with prolonged walking, stair climbing, and sitting. 2. The Veteran’s left knee strain has been manifested by complaints of pain, painful motion with limitation of flexion at worst to 90 degrees, with no limitation of extension, but with difficulty with prolonged walking, stair climbing, and sitting. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a right knee strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5260 (2019). 2. The criteria for an initial rating in excess of 10 percent for a left knee strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5260 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training in the United States Army National Guard from October 1973 to February 1974 and on active duty in the United States Army from February 1974 to November 1995. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in March 2020. A transcript of the hearing is associated with the electronic claims file. In June 2020, the Board remanded these issues to the RO for additional development. The October 2020 supplemental statement of the case lists the issue of whether the Veteran is entitled to an evaluation in excess of 40 percent for his back disability after August 25, 2020. The June 2020 Board decision awarded a 40 percent disability rating for the Veteran’s back and explained why a higher rating was not warranted. Accordingly, that issue is not on appeal. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s 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 practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to “staged” ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 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. See 38 C.F.R. § 4.45. 1. Entitlement to a rating in excess of 10 percent for a right knee strain 2. Entitlement to a rating in excess of 10 percent for a left knee strain The Veteran’s right and left knee strains are each evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5260, effective May 14, 2014. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. While the Veteran’s knee strains are rated under Diagnostic Code 5260, limitation of flexion, the Board will consider all applicable rating criteria. Under Diagnostic Code 5260, leg limitation of flexion, provides for the assignment of a noncompensable rating when flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A rating of 20 percent is appropriate when leg flexion is limited to 30 degrees, and a rating of 30 percent is warranted when flexion is limited to 15 degrees, which warrants the maximum, 30 percent rating. Under Diagnostic Code 5261, the knee is rated based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. As explained in more detail below, the claims file does not reflect that the Veteran’s knee conditions cause recurrent subluxation or instability, or patellar instability. Accordingly, Diagnostic Code 5257, Knee, other impairment of, is not applicable. Diagnostic Code 5262, tibia and fibula, impairment, is also not applicable, as the evidence also does not reflect the Veteran suffers from any tibia or fibula conditions. The diagnostic criteria applicable to semilunar cartilage are found at 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under that code, a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Previously, VA General Counsel has held that a rating under Diagnostic Code 5259, cartilage, semilunar, removal (see also Diagnostic Code 5258, dislocated semilunar cartilage) already contemplates limitation of motion, such that separate ratings for limitation of motion (e.g., Diagnostic Codes 5003, 5260, or 5261) would violate the regulatory prohibition against pyramiding under 38 C.F.R. § 4.14. See VAOPGCPREC 9-98 (August 14, 1998). However, the Court has held that evaluation of a knee disability under Diagnostic Code 5257 or 5261 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under Diagnostic Code 5258 or 5259, and vice versa. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Rather, a separate evaluation in a given case depends on whether manifestations for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different diagnostic code; and that, in evaluations of musculoskeletal disabilities based on limitation of motion, a manifestation has not been compensated, for separate evaluation and pyramiding purposes, if that manifestation did not result in an elevation of the evaluation under 38 C.F.R. §§ 4.40 and 4.45, pursuant to principles set forth in DeLuca. Id. at 118-119. The Veteran filed a claim for entitlement to service connection for right and left knee disabilities in May 2014. An August 2014 buddy statement revealed that the Veteran was observed applying ice to his right and left knees. A January 2015 buddy statement reflected that swelling was observed on the Veteran’s right and left knees. May 2015 private treatment records revealed that the Veteran walked with a normal gait and had full range of motion in his lower extremities. June 2015 private treatment records revealed that the Veteran walked with a normal gait and there was no swelling or tenderness in his lower extremities. July 2015 private treatment records reflect that the Veteran walked with a normal gait. The Veteran attended a VA examination in July 2015. He told the examiner than his knee disabilities were progressively worse, with intermittent sharp, shooting, pain, evaluated as 7-8/10 on the pain scale. Range of motion testing revealed flexion to 90 degrees and extension to 0 degrees, bilaterally, with pain. Repetitive use testing did not result in any additional loss of motion. Although range of motion was not speculated, the examiner determined that during repeated use or a flare-up, weakness, fatiguability or incoordination would significantly limit functional ability. Muscle strength was normal and there was no indication of right or left knee instability. The examiner concluded that the Veteran’s knee disabilities would make prolonged standing, walking, or climbing stairs difficult. February 2016 private treatment records reflect that the Veteran denied any edema or tenderness in his lower extremities and that he walked with a steady gait without a cane. He had full strength. The Veteran submitted a disability benefits questionnaire in May 2016. He reported flare-ups that caused his left knee to form a knot and make bending painful. He denied using any assistive devices. He reported severe stiffness and difficulty sitting and walking. Range of motion testing revealed flexion to 140 degrees bilaterally. The physician who specialized in anesthesiology and pain management, reported that following repetitive-use testing the Veteran had additional limitation in range of motion but did not express the results with degrees of motion lost. He noted pain on active and passive motion and pain with weight-bearing. The physician determined that pain, weakness, fatiguability or incoordination did not significantly limit functional ability during flare-ups or when the knee was used repeatedly over time, and that there was no functional loss. The Veteran’s muscle strength was normal, and there was no indication of joint instability. The physician determined that the Veteran had bilateral shin splints, but it did not affect the Veteran’s range of motion in the knee or ankle. The physician also determined that the Veteran had bilateral crepitus. The physician concluded that the Veteran’s knees were “more likely than not [more than] 50 percent service connection.” June 2016 VA treatment records reflect that the Veteran reported no pain and walked with a steady gait. A medical note reflects that the Veteran was able to ambulate independently and appeared in no distress. August 2017 VA treatment records reveal that the Veteran denied muscle pain, weakness, joint pain, swelling, or stiffness. March 2018 VA treatment records reflect that the Veteran denied joint pain or swelling. Examination revealed that his mobility was not limited. April 2018 VA treatment records reflect that the Veteran had normal movement in all extremities. The Veteran attended a Board hearing in March 2020. He testified that his knees were bothering him a bit more. He reported limited range of motion and that his knees were like everything else, “it comes and goes.” He testified that he had a knee brace and cane at home that he used periodically. When asked if he felt like he had knee instability, the Veteran stated that he felt stiffness. The Veteran testified that he was unable to bend his knee all the way down and he had to lay back and put his socks on from the side. The Veteran attended another VA examination in August 2020. He reported progressed pain and using a cane to aid ambulation. He told the examiner that he had difficulty running due to knee pain. Range of motion testing revealed flexion to 120 degrees and extension to 0 degrees bilaterally with pain. The Veteran was able to complete repetitive use testing without any additional loss of motion. The examiner estimated that the Veteran’s right and left knee extension would be limited to 115 degrees during repeated use and to 120 degrees during a flare up, bilaterally. There were no additional factors contributing to the Veteran’s disability. The Veteran’s muscle strength was normal and there was no indication of joint instability upon testing. The examiner noted that the Veteran had never had recurrent patellar dislocation, shin splints, stress fractures or any other tibial or fibular impairment. There was objective evidence of pain with non-weight bearing, and his passive range of motion was the same of his active range of motion. The examiner concluded that the Veteran’s knee disabilities would reduce his tolerance for using the stairs and running. Based on the lay and medical evidence of record the Board finds that the Veteran’s right and left knee strains do not more nearly approximate the level of severity contemplated by an increased 20 percent rating. The Board notes the Veteran’s contentions regarding his ongoing knee pain and stiffness and increased pain with prolonged walking, sitting, and running. The Veteran has also reported a worsening of his pain during the appeal. The Veteran is competent to testify to such lay observable symptomatology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, such lay evidence in this case even when accepted as accurate, does not establish a level of disability contemplated by a higher evaluation. An increased 20 percent rating is available under Diagnostic Code 5260, with flexion limited to 30 degrees. During the appeal period, the VA examinations and treatment records noted bilateral knee flexion to at worst to 90 degrees in with painful motion and extension to 0 degrees taking into consideration repetitive use and painful motion. The current evaluation contemplates pain on motion. There is no evidence of flexion limited to 30 degrees warranting an increased 20 percent rating. As such the Board finds that the Veteran is not entitled to an increased rating in excess of 10 percent for the appeal for his knee flexion. No additional higher or alternative ratings under different Diagnostic Codes for either knee can be applied during this period. For the purposes of Diagnostic Code 5256, ankylosis is “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing SAUNDERS ENCYCLOPEDIA AND DICTIONARY OF MEDICINE, NURSING, AND ALLIED HEALTH 68 (4th ed. 1987)). As the Veteran is able to move his right and left knee, they are clearly not ankylosed. Further during the appeal period, the Veteran’s right and left knee extension was noted to be to 0 degrees. Thus, an increased or additional rating is not warranted under limitation of extension under Diagnostic Code 5261. In addition, under Diagnostic Codes 5258 and 5259, is applicable where there is medical evidence of a meniscal tear, or dislocated semilunar cartilage with frequent episodes of locking pain and effusion into the joint. There is no evidence of a meniscal disability, and as such a separate evaluation under Diagnostic Code 5258 or 5259 is not warranted. Additionally, there is no indication of nonunion or malunion or the tibia or fibula warranting a rating under Diagnostic Code 5262. 38 C.F.R. § 4.71a, DC 5262. Further, while evaluations under DC 5262 may be based in part upon a knee disability, the underlying impairment must be related to damage to the bones of the lower leg. No tibia or fibula impairment of the right lower extremity is shown by the evidence during the appeal period, so DC 5262 is not for application. 38 C.F.R. § 4.71a. The May 2016 DBQ reported shin splints; however, this is not supported anywhere else in the record and the most recent VA examination clarifies that the Veteran has never had shin splints. Regarding assigning a higher disability rating according to 38 C.F.R. §§ 4.40, 4.45, 4.59, the Board finds that painful motion is already contemplated by the currently assigned 10 percent rating. In addition, as shown above, there is no evidence of record reflecting that the Veteran experiences additional functional loss or limitation of motion due to symptoms such as pain, weakness, weakened movement, excess fatigability, or incoordination, beyond that noted by the VA examiners. Therefore, the Board concludes that the greater weight of evidence is against assigning additional higher ratings under Deluca. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against finding increased ratings in excess of 10 percent for the Veteran’s service connected right or left knee strains are warranted. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. REASONS FOR REMAND 4. Entitlement to a separate rating for a bowel condition secondary to service-connected disease or injury The Veteran contends that he is entitled to a separate disability rating for constipation, secondary to his low back disability. During March 2015 and May 2015 private back treatment, the Veteran denied constipation. The Veteran submitted a privately completed Disability Benefits Questionnaire (DBQ) in May 2016 regarding his back. No neurological abnormalities, to include bowel problems, were found. The Veteran explicitly denied experiencing constipation or diarrhea during January 2016, August 2017, March 2018, and April 2018 VA treatment. During the March 2020 Board hearing, the Veteran testified that he experiences constipation as a result of his service-connected lumbar spine condition. See Hearing Transcript. The Veteran attended a VA back examination in August 2020. The examiner determined that the Veteran did not have any bowel problems associated with his back condition. The Veteran also attended a VA examination for intestinal conditions in August 2020. The Veteran reported that he was often constipated due to his pain medications and frequently took stool softeners which caused diarrhea. Following an examination of the Veteran and review of the claims file, the examiner determined that the Veteran had diarrhea of unknown etiology and failed to provide any explanation as to the Veteran’s contentions that the pain medication he took for his back caused constipation. Accordingly, an additional opinion is necessary on remand. Furthermore, as indicated above, the Veteran receives private medical care. Updated records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from private providers and associate them with the claims file. 2. Obtain an addendum opinion from a VA examiner regarding any bowel conditions, to include constipation and diarrhea. The examiner must provide an opinion on the following: (a.) What are the Veteran’s intestinal conditions, if any? (b.) For each condition, whether it is at least as not (a 50 percent probability or greater) that the impairment is caused by the Veteran’s service-connected back disability, to include the prescribed medication used to treat back pain; and (c.) Whether it is at least as not (a 50 percent probability or greater) that the impairment is aggravated by the Veteran’s service-connected back disability, to include the prescribed medication used to treat back pain. A rationale must be provided for any opinion expressed. The examiner is asked to address the Veteran’s contentions that his back medication causes constipation. 3. After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran’s claim. If any of the benefits sought are not granted in full, the AOJ should furnish the Veteran and his representative with an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.