Citation Nr: 21009578 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-25 830 DATE: February 22, 2021 ORDER An initial rating in excess of 10 percent prior to August 14, 2017, and in excess of 40 percent on and thereafter for, the service-connected degenerative arthritis of the thoracolumbar spine is denied. An initial rating in excess of 10 percent prior to June 28, 2013, and in excess of 20 percent on and thereafter, for the service-connected right knee degenerative joint disease is denied. FINDINGS OF FACT 1. Prior to August 14, 2017, the Veteran’s lumbar spine disability had not been manifested by forward flexion limited to greater than 30 degrees but no greater than 60 degrees or a combined range of motion greater than 120; from August 14, 2017, this disability was not manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 2. Prior to June 28, 2013, the Veteran’s right knee disability had not been manifested by abnormal flexion or extension, ankylosis, slight recurrent subluxation or slight lateral instability, dislocated meniscus causing locking, an impairment of the tibia and fibula, or genu recurvatum; from June 28, 2013, this disability was not manifested by abnormal flexion or extension, ankylosis, slight recurrent subluxation or slight lateral instability, an impairment of the tibia and fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to August 14, 2017, and in excess of 40 percent on and thereafter, for the service-connected degenerative arthritis of the thoracolumbar spine have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5242-5243. 2. The criteria for an initial rating in excess of 10 percent prior to June 28, 2013, and in excess of 20 percent on and thereafter, for the service-connected right knee degenerative joint have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5003-5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2000 to October 2010. This matter was previously before the Board of Veterans’ Appeals (Board) in July 2020 and was remanded for further evidentiary development. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Initial rating in excess of 10 percent prior to August 14, 2017, and in excess of 40 percent on and thereafter, for the service-connected degenerative arthritis of the thoracolumbar spine Service connection was originally granted for the Veteran’s lumbar spine disability in a November 2011 rating decision which assigned a 10 percent evaluation, effective October 27, 2010, for degenerative arthritis of the spine under Diagnostic Code (DC) 5242. Since August 14, 2017, this disability has been evaluated as 40 percent disabling pursuant to the criteria for intervertebral disc syndrome (IVDS) under DC 5243. 38 C.F.R. § 4.71a. The following ratings are available for Diagnostic Code 5242 under the General Rating Formula for Diseases and Injuries of the Spine: 100 percent is warranted for unfavorable ankylosis of the entire spine; 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; 40 percent for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis for the entire thoracolumbar spine; 20 percent for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion for the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spine contour such as scoliosis, reversed lordosis, or abnormal kyphosis; 10 percent for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Plate V, 38 C.F.R. § 4.71a. Under Diagnostic Code 5243 for intervertebral disc syndrome, such disability may also be rated under The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent rating when there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months and a 20 percent rating when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) defines an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Here, the Veteran contends that higher ratings are warranted for her lumbar spine disability. She underwent a VA examination of her spine in February 2011. The examiner noted that the Veteran had focal herniated nucleus pulposus at L5-S1. At that time, her forward flexion was 90 degrees, 25 degrees extension, 35 degrees right and left lateral bend, and 30 degrees right and left rotation. Her combined range of motion was 245 degrees. There was no evidence of inflammatory arthritis, spinal muscular abnormalities, pain with active and repetitive motion, or additional limitations following repetitive motion. There was symmetry of spinal motion with normal curves. Detailed reflex, sensory, and motor examinations were normal. There was no evidence of sacroiliitis. The Veteran underwent another VA examination in June 2013. The examiner diagnosed the Veteran with IVDS and degenerative disc disease of the lumbosacral spine. The Veteran reported worsening of symptoms and described severe pain with limp, inability to sleep, inability to sit and perform job duties for extended periods of time, and extreme pain that extended from the lower back into the left leg and foot. At that time, her forward flexion was 90 degrees, with pain beginning at 65 degrees. Extension was 0 degrees with no objective evidence of pain. Right and left lateral flexion and right and left lateral rotation were to 30 degrees with no objective evidence of pain. Her combined range of motion was 210 degrees. The examiner noted no additional limitation following repetitive use testing, and functional loss was described as pain on movement. There was no localized tenderness or pain and no guarding or muscle spasms. Neurological evaluation of the lower extremities was normal, and straight leg raising test was positive bilaterally. There was no evidence of vertebral fracture. The Veteran reported moderate pain due to radiculopathy of the left lower extremity. Although IVDS was documented, the Veteran had not experienced any incapacitation episodes over the past 12 months. The Veteran also underwent a VA examination in August 2017. The examiner confirmed the Veteran’s IVDS and thoracolumbar spine herniated nucleus pulposus diagnosis and provided an additional diagnosis of lumbar radiculopathy involving left lower extremity. The Veteran reported daily back flare-ups with a pain intensity of ‘8/10’ and difficulty with prolonged periods of sitting, standing, and walking. Range of motion testing revealed forward flexion to 40 degrees, extension to 20 degrees, right and left lateral flexion and bilateral rotation to 30 degrees. The range of motion itself contributed to functional loss to the extent that the Veteran had difficulty bending forward and backwards. Pain was noted on examination and caused functional loss and also, there was evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing, and the examiner noted that there was no additional loss of function or range of motion after three repetitions. However, the examiner stated that the Veteran was not examined immediately after repetitive use over the period of time or during a flare-up. Muscle spasm was present however, it did not result in abnormal gait or abnormal spinal contour. There was no evidence of guarding and muscle strength and reflexes were within normal limits. The Veteran reported decreased sensation in her left lower extremity however, had positive leg raising test in the left lower extremity. The Veteran also reported moderate intermittent pain and mild paresthesias and/or dysesthesias and numbness in her left lower extremity. The examiner noted mild radiculopathy affecting the left sciatic nerve and noted IVDS. The Veteran however, denied any incapacitating episodes in the past year. The Veteran underwent another VA examination in May 2019. The Veteran reported no flare-ups and reported having functional loss that affected her occupational activities. Range of motion testing revealed forward flexion to 90 degrees, extension to 20, right and left lateral flexion and bilateral rotation to 30 degrees. No pain was noted on examination, and there was no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing, and no additional loss of function or range of motion after three repetitions was noted. Further, the examiner stated he had no basis to offer additional losses of function or motion when it came to repetitive use or during a flare-up based on the examination, review of records, the Veteran’s history, and her current complaints. An addendum opinion was provided in July 2020. The examiner noted that additional functional impairment occurred during back flare-ups due to pain. As such, flexion was reduced to 30 degrees during back flare-ups and extension was reduced to 10 degrees. Given the above, the Board finds that the evidence does not show entitlement to a rating in excess of 10 percent prior to August 14, 2017. At no time prior to August 14, 2017 did the medical treatment records associated with the claims file indicate that the Veteran’s lumbar spine symptoms were more severe than those exhibited on VA examinations. 38 C.F.R. § 4.71a clearly requires that a rating higher than 10 percent for a lumbar spine disability can only be assigned if, at a minimum, the Veteran exhibits forward lumbar flexion greater than 30 degrees but not greater than 60 degrees; or the combined range of motion for the thoracolumbar spine are not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spine contour such as scoliosis, reversed lordosis, or abnormal kyphosis. At no time prior to August 14, 2017 did the Veteran exhibit forward flexion limited to greater than 30 degrees but not greater than 60 degrees, and her combined range of motion was greater than 120 degrees. Further, medical treatment records do not indicate any symptoms of guarding or muscle spasms. She is thus not entitled to a schedular rating in excess of 10 percent for her lumbar spine disability prior to August 14, 2017 under DC 5242. As previously discussed, however, in evaluating disabilities of the musculoskeletal system, it is also necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca, 8 Vet. App. at 206. Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell, 25 Vet. App. at 32. Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” to constitute functional loss. Id. The weight of the evidence also indicates that the Veteran’s lumbar spine disability has not been so functionally limited as to warrant a rating in excess of 10 percent. Despite the Veteran’s representative submitting a written argument asserting otherwise, at no VA spine examination did the Veteran’s functional loss due to pain result in decreased flexion greater than 30 degrees but not greater than 60 degrees, even during flare-ups or after repeated use overtime. As such, while the Veteran may have, at times, experienced pain on range of motion, pain had not been shown to effectively limit the forward flexion in her back to 60 degrees or less, or to so functionally limit the range of motion in her back such that her combined range of motion was less than 120 degrees. Turning to the issue of entitlement to a rating in excess of 40 percent for the Veteran’s lumbar spine disability from August 14, 2017, the Board finds that an increase evaluation is not warranted. 38 C.F.R. § 4.71a requires that a rating higher than 40 percent for a lumbar spine disability can only be assigned if, at a minimum, unfavorable ankylosis of the entire thoracolumbar spine. At no time on or after August 14, 2017 do the records show evidence of unfavorable ankylosis of the entire spine. Additionally, the evidence of record does not show that the Veteran has been physician prescribed bed rest to treat incapacitating episodes of IVDS at any time during the appeal period. No argument has been submitted to the contrary. Importantly, the June 2013 VA spine examiner noted that, although the Veteran had IVDS, he had not exhibited incapacitating episodes over the past 12 months due to IVDS. Further, there are no medical treatment records associated with the claims file which show that the Veteran had ever been prescribed bed rest for IVDS during either portion of the appeal period. Because the prescription of bed rest for IVDS is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, here, a rating based on IVDS is not appropriate for either portion of the appeal period. In light of the evidence presented, the Veteran has not met the criteria for an initial rating greater than 10 percent prior to August 14, 2017 or in excess of 40 percent on and after that date. Accordingly, the Veteran’s appeal for an increased rating for this service-connected disability is denied. An initial rating in excess of 10 percent prior to June 28, 2013, and an initial rating in excess of 20 percent on and thereafter, for the service-connected right knee degenerative joint disease Prior to June 28, 2013, the Veteran’s right knee disability was assigned an initial 10 percent rating for degenerative arthritis under DC 5003. DC 5003 provides that arthritis is generally rated based on limitation of motion of the joint.  However, if limitation of motion of the knee is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be assigned. See 38 C.F.R. § 4.71a, DC 5003. From June 28, 2017, the Veteran was rated 20 percent under DC 5258. 38 C.F.R. § 4.71a. DC 5258 provides a 20 percent rating for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. This is the highest schedular evaluation allowed under the law for dislocated semilunar cartilage of the knee. 38 C.F.R. § 4.71a. Knee disabilities can also be evaluated for limitation of motion. Under DC 5260, a noncompensable rating is warranted for flexion of a knee limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Limited motion of a knee disability can also be rated under DC 5261. DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees warrants a noncompensable 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 rating. 38 C.F.R. § 4.71a, DC 5261. The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71. Normal extension and flexion of the knee is from 0 to 140 degrees. Separate ratings under DC 5260 for limitation of flexion of the leg and DC 5261 for limitation of extension of the leg may be assigned for disability of the same joint, but separate compensable pathology must be shown. VAOGCPREC 9-2004. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Pursuant to 38 C.F.R. § 4.71a, DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. Id. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Id. Other DCs relating to the knees are DC 5256 for ankylosis; DC 5262 for impairment of tibia and fibula; DC 5263 for genu recurvatum; and DC 5259 for symptomatic removal of semilunar cartilage (meniscus). Those conditions are not shown on examination or in the medical evidence of record during the appeal period, and the Board finds that application of these DCs is not warranted. 38 C.F.R. § 4.71a. Here, the Veteran contends entitlement to higher ratings for the right knee disability. She underwent VA examination in February 2011 and reported pain and stiffness in her knee. Range of motion testing showed flexion to 125 degrees and extension to 0 degrees. The examiner reported no objective evidence of pain with active or repetitive motion. There were no additional limitations following repetitive motion. There were also no symptoms of edema, weakness, deformity, instability, giving way, “locking” episodes, lack of endurance, effusion, episodes of dislocation or subluxation, malalignment, abnormal movement, or abnormal gait. Reflex and motor examinations were normal. X-rays showed degenerative joint disease and mild joint space narrowing. The examiner diagnosed right knee degenerative joint disease. The Veteran underwent another VA examination in June 2013. She reported having flare-ups which impacted weight bearing activities, standing for long periods, twisting and turning, sitting for extended periods causing aggravation of knee joint, swelling, tenderness, and pain which affected her sleep. Range of motion testing showed flexion to 140 degrees with pain indicated at 105 degrees, and extension to 0 degrees. There was no additional limitation of motion following repetitive use testing noted. Likewise, there was no functional loss or impairment of the knee. Joint stability was normal and there was no evidence of patellar subluxation or dislocation. The examiner noted the Veteran had a meniscus condition causing frequent episodes of joint “locking,” pain, and effusion. The Veteran underwent another VA examination in August 2017. The examiner confirmed the right knee degenerative joint disease diagnosis. The Veteran reported daily flare-ups, difficulty going up and down stairs, and an inability to kneel, squat, or run. Range of motion testing showed flexion to 140 degrees and extension to 0 degrees. Pain was exhibited on both flexion and extension. There was evidence of pain with weight bearing. Repetitive use testing showed no additional functional loss or range of motion. Muscle strength testing was normal and there was no indication of ankylosis, subluxation, or joint instability. The examiner reported the Veteran did not have a meniscus condition. The Veteran underwent another VA examination in May 2019. The Veteran did not report flare-ups but reported having functional loss. Range of motion testing showed flexion to 140 degrees and extension to 0 degrees, with no pain noted on examination. The examiner noted that there was no additional functional loss or range of motion upon repetitive use testing. Muscle strength testing was normal an there was no indication of muscle atrophy. Likewise, there was no ankylosis, joint instability, patellar dislocation, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. An addendum opinion was provided in July 2020. The examiner found that there was additional functional impairment that occurs during right knee flare-ups which results in additional loss of range of motion. During flare-ups right knee flexion is reduced to 90 degrees due to pain with extension to 0 degrees. Given the above, the Board finds that the Veteran’s right knee disability does not meet the criteria for a rating in excess of 10 percent prior to June 28, 2013. In light of the findings of normal range of flexion and extension of her right knee, compensable ratings based on limitation of flexion and extension are not warranted. 38 C.F.R. § 4.71a, DCs 5260, DC 5261. However, the Board’s analysis is not yet complete. With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45, the Board must consider whether an increased rating could be assigned on the basis of functional loss due to the Veteran’s subjective complaints of pain. See DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans’ Claims (Court) clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. The Court discounted the notion that the highest disability ratings are warranted under DCs 5260 and 5261 where pain is merely evident as it would lead to potentially “absurd results.” Id. at 43. Here, the Veteran has shown and attested to pain and functional limitation in her right knee. However, repetitive motion testing was not shown to cause additional limitation of motion as to suggest that the flexion or extension in the right knee was functionally limited to a level warranting even a compensable rating. Pain was not shown to occur prior to the stopping points at a compensable range of motion with regard to either flexion or extension on either knee. While records show a diagnosis of right knee degenerative arthritis, a compensable rating for limitation of motion is not warranted. As such, because the Veteran did not meet the criteria for a compensable rating for limitation of motion, under DC 5003, a 10 percent evaluation, but no higher, is applied to her right knee disability. The Board has also considered the other diagnostic codes pertaining to the knee and leg. However, the Veteran’s right knee disability has not resulted in symptoms such as ankylosis, meniscal conditions, or instability that would warrant compensable under the other diagnostic codes of the knee and leg. Accordingly, the Veteran is not entitled to a rating in excess of 10 percent for a right knee disability prior to June 28, 2013. The Board also finds that entitlement to a rating in excess of 20 percent from June 28, 2013 is not warranted. The medical records indicate “locking” pain which warrants a 20 percent rating under DC 5258. Considering limitation of motion however, the Board finds that a higher rating is not warranted as her limitation of flexion and extension were within normal limits even during-flare ups. Further, a rating under other diagnostic codes pertaining to the knee and leg is not warranted as the Veteran had no symptoms such as ankylosis, meniscal conditions, or instability that would warrant compensable under the other diagnostic codes of the knee and leg. In conclusion, the Board finds that the preponderance of the evidence is against a finding for an initial rating in excess of 10 percent prior to June 28, 2013, and against an evaluation greater than 20 percent on and thereafter for right knee degenerative arthritis. In denying such ratings, 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. In reaching these conclusions with respect to all of the claims on appeal, the Board has considered all relevant lay statements as to the Veteran’s relevant symptoms. Indeed, after a complete and thorough review of the record, the Board concludes that the findings during medical evaluations are more probative than are the lay statements. Of significance here is the fact that, as a lay person, the Veteran is simply not competent to address specific range of motion findings (and other particular medical examination findings) with regard to his lumbar spine and right knee. As such, the Board has considered the lay assertions of record, but has also relied heavily on VA examinations, which duly considered the subjective symptoms but do not show limitation of function approximating the criteria for higher ratings. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. R. Bobb, 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.