Citation Nr: 21012487 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 18-46 286A DATE: March 4, 2021 ORDER Service connection for a right knee disability is denied. An initial rating higher than 20 percent for service-connected lumbosacral strain is denied. FINDINGS OF FACT 1. The Veteran does not have a current right knee disability. 2. The Veteran’s service-connected lumbosacral strain does not manifest forward flexion to 30 degrees or less or thoracolumbar spine ankylosis. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an initial rating higher than 20 percent for service-connected lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to March 1987. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2015 rating decision which denied service connection for a right knee condition and granted service connection, with an initial rating of 10 percent effective as of the date of his claim, for lumbosacral strain. A September 2018 (notice was sent in October 2018) rating decision increased the initial rating for his service-connected lumbosacral strain to 20 percent effective as of the date of his claim. As this determination constitutes only a partial grant, the Veteran’s appeal continues to encompass that disability as well as a right knee disability. AB v. Brown, 6 Vet. App. 35, 38 (1993). In October 2018, the Veteran’s representative indicated that further evidence and argument would be submitted upon receipt of notification that the appeal had been docketed at the Board. The Board was requested to refrain from issuing a decision until either the submission was received or the full 90 days allowed for submission had passed. A Board docketing letter, which specified this submission period and other applicable regulations under 38 C.F.R. § 20.1304 (now 38 C.F.R. § 20.1305), was sent to the Veteran in May 2020. It was not copied to his representative, however. Another Board docketing letter accordingly was sent to the Veteran and copied to his representative in early November 2020. Fair process requires that the Board honor the aforementioned request for up to 90 days to submit evidence or argument. Bryant v. Wilkie, 33 Vet. App. 43, 46 (2020). That period has now passed, without submission of any kind. The Veteran’s representative additionally requested a copy of the claims file in February 2020 and again in June 2020. These requests were fulfilled in October 2020 and December 2020. Service Connection Direct service connection is established when there is a nexus between a current disability and an injury or disease incurred or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For veterans with qualifying service, it is presumed under certain circumstances when the current disability is a chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The claimant is afforded the benefit of the doubt when there is an approximate balance of evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The applicable standard thus is at least as likely as not. Only the most relevant evidence must be discussed. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Right Knee Disability The Veteran has made no contentions regarding a right knee disability. However, it is presumed from the fact that he filed a claim including the issue of service connection for such a disability that he contends he has one as a result of his service. The first criterion that must be established to grant service connection, whether directly, presumptively, or otherwise, is a current disability. Degmetich v. Brown, 104 F.3d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A disability qualifies as current if present near or at the time a claim is filed or at any time during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran filed his claim in August 2015. There is no indication that he was medically diagnosed with a right knee disability from any point near then to present. Indeed, no VA or private treatment records are available. As there is no indication the Veteran has a medical background, he is a lay person. Lay persons are competent to diagnose simple and readily observable disabilities. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007). However, the Veteran has not indicated that he suffers from a simple and readily observable right knee disability. He indeed has not identified a particular right knee disability at all, regardless of its nature. His claim, which constitutes the only relevant statement from him, simply states “right knee.” Even absent a diagnosis, a symptom significant enough to result in functional impairment in earning capacity qualifies as a disability. Wait v. Wilkie, 33 Vet. App. 8, 17 (2020); Saunders v. Wilkie, 886 F.3d 1356, 1367-1368 (Fed. Cir. 2018). Yet the Veteran has not complained of any specific right knee symptoms. He further has not related any information on how these symptoms, whatever they are, have impacted his ability to work. The Veteran, in sum, has not been diagnosed with a current right knee disability or provided sufficient reports concerning his right knee to conclude he has such a disability. A VA medical examination has not been performed, as the duty to assist does not mandate one in this situation. 38 U.S.C. § 5103A(d)(2)(A); 38 C.F.R. § 3.159(c)(4)(i)(A); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Based on the preponderance of the evidence, the Board finds that the Veteran does not have a current right knee disability. Neither direct, presumptive, nor any other type of service connection therefore can be granted as a result. It follows that proceeding with a discussion of the other criteria that must be established would be inconsequential. The Board observes, however, that there is almost as little evidence regarding those criteria as there is regarding the current disability criterion. The Veteran is encouraged to submit more if he chooses to file a new claim. For now, this issue of his instant claim is denied. Higher Initial Rating Ratings represent the average impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. One is assigned by comparing the extent a disability impairs the ability to function with the criteria for that disability. Id.; 38 C.F.R. § 4.10. The disability’s history and all other relevant evidence is to be considered and, if necessary, reconciled. 38 C.F.R. §§ 4.1, 4.2, 4.6. When two ratings may be applicable, the higher is assigned if its criteria are more nearly approximated. 38 C.F.R. § 4.7. Any reasonable doubt is resolved in the claimant’s favor. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53. Different ratings may be assigned for different periods, a process known as staging. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). With respect to ratings involving motion, important factors include weakness, excess fatigability, swelling, incoordination, more movement than normal, less movement than normal, and painful movement. 38 C.F.R. § 4.45. Pain must be supported by adequate pathology and evidenced by visible behavior. 38 C.F.R. §§ 4.40, 4.59. A higher rating may be assigned when there is functional loss due to pain or another factor, to include during flare-ups and with repeated use over a period of time. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 205-207 (1995). However, pain does not constitute functional loss unless it affects some aspect of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Lumbosacral Strain When a Diagnostic Code specifically addresses a disability, it must be used for rating that disability. Copeland v. McDonald, 27 Vet. App. 333, 336-337 (2015). Diagnostic Code 5237 under 38 C.F.R. § 4.71a addresses lumbosacral strain. Whether with or without symptoms like pain (whether or not it radiates), stiffness, or aching, it uses the General Rating Formula for Diseases and Injuries of the Spine. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion not greater than 120 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned when there is forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine results in a 50 percent rating. The maximum 100 percent rating is reserved for unfavorable ankylosis of the entire spine. Normal thoracolumbar spine range of motion is from 0 to 90 degrees forward flexion and from 0 to 30 degrees extension, left and right lateral flexion, and left and right lateral rotation for a combined total of 240 degrees. Note (2); Plate V. For each objective neurologic abnormality associated with the spinal disability, a separate rating finally is assigned under the appropriate Diagnostic Code. Note (1). Prior to discussing the merits, the Board notes that several musculoskeletal Diagnostic Codes were amended effective February 7, 2021. 85 Fed. Reg. 76453-76469 (Nov. 30, 2020). However, these amendments are not applicable here. The Veteran’s November 2015 VA examination is the only relevant medical evidence available. One diagnosis, lumbosacral strain, was made at that examination. Diagnostic Code 5237 for that disability was not amended. Several other diagnoses, to include those for disabilities addressed by amended Diagnostic Codes, were considered at the examination. Each was rejected, however. The ensuing discussion accordingly considers only Diagnostic Code 5237. Based upon the preponderance of the evidence, the Board finds that an initial rating (the rating first assigned after service connection is granted) higher than 20 percent for the Veteran’s service-connected lumbosacral strain is not warranted under it. There indeed is no indication that the Veteran’s disability manifests thoracolumbar forward flexion to 30 degrees of less. At the November 2015 examination, he complained of pain. Mild tenderness or pain on palpation in his L4-S1 paravertebral area was found. Though motion also was painful, his thoracolumbar spine forward flexion initially was to 85 degrees. It decreased to 80 degrees due to his pain after three repetitions. An affected joint and, if possible, the opposite undamaged joint are to be tested for pain on both active and passive motion as well as in weight-bearing and nonweight-bearing. Correia v. McDonald, 28 Vet. App. 158, 168 (2016) (citing 38 C.F.R. § 4.59). There is no opposite joint for the spine. The Veteran’s active forward flexion presumably was measured, as is standard. This represents the worst-case scenario for him. Actively moving a joint indeed generally is equally or more limiting than passively having someone else like the examiner move it. If it had been measured, the Veteran’s passive forward flexion thus likely would have been better than or at least the same as his active forward flexion. Measuring forward flexion in nonweight-bearing finally is standard. This once again represents the worst-case scenario for the Veteran. Pain indeed was not found in weight-bearing. It follows that thoracolumbar spine forward flexion measured then likely would have been better than or at least the same as in nonweight-bearing, when he was in pain. The VA examination, in sum, portrayed his disability at its worst. Any noncompliance with how to measure for pain during range of motion at it therefore is not prejudicial. Estimates of the Veteran’s forward flexion during his reported pain flare-ups triggered by prolonged bending, lifting, and carrying heavy objects as well as following repetitive use over a period of time finally were provided, as required. Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017). Both once again were to 80 degrees. The Veteran’s thoracolumbar spine forward flexion, taking into account measurements initially, after three repetitions, during flare-ups, and following repetitive use over a period of time, accordingly was 80 degrees at worst. This is far greater than the 30 degrees required for the next highest initial rating of 40 percent. That criterion simply is not met. Neither is the other criterion for a higher initial rating of 40 percent, favorable ankylosis of the entire thoracolumbar spine. Ankylosis is immobility, consolidation, or fixation of a joint. Dorland’s Illustrated Medical Dictionary 94 (31st ed. 2007); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The Veteran has not reported anything of the sort. The November 2015 examination further did not find any ankylosis. Indeed, the Veteran was found to have range of motion in forward flexion as well as in extension, right and left lateral flexion, and right and left lateral rotation. He was able to move his spine in all directions, in other words. Currently, service connection and separate initial ratings are not in effect for any objective neurologic abnormalities associated with the Veteran’s service-connected lumbosacral strain. At no point has he reported symptoms suggestive of an associated objective neurologic abnormality. The November 2015 examination did not find radiculopathy in either lower extremity, as the straight leg raising test was negative and muscle strength, reflexes, and sensation were normal in each leg. Bowel problems and bladder problems/pathologic reflexes also were not found. As such, the Board finds based upon the preponderance of the evidence that there are no objective neurologic abnormalities associated with the Veteran’s lumbosacral strain that warrant being separately service-connected and assigned initial ratings. Coupled with the previous finding that an initial rating higher than 20 percent is not warranted means that this issue of the Veteran’s claim is denied in its entirety. Thomas H. O’Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becker 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.