Citation Nr: 21012953 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-31 567A DATE: March 8, 2021 ORDER The claim for a higher initial disability rating in excess of 20 percent for lumbar spine degenerative arthritis with spinal stenosis, degenerative disc disease, and spondylosis (herein lumbar spine disability) is denied. The claim for a higher initial disability rating in excess of 20 percent prior to September 23, 2014, for left knee arthritis (herein left knee disability) is denied. The claim for a higher initial disability rating in excess of 30 percent beginning November 1, 2015, for left knee arthritis status post total knee replacement (herein left knee disability) is denied. The claim for a total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability is manifest by painful, decreased motion with forward flexion possible 45 degrees, at worst, without ankylosis. 2. Prior to September 23, 2014, the Veteran’s left knee disability was awarded the maximum schedular rating permitted for dislocation of semilunar cartilage and did not demonstrate compensable loss of range of motion, ankylosis, instability, or subluxation. 3. Beginning November 1, 2015, the left knee disability did not demonstrate left knee extension limited to 30 degrees, ankylosis, instability, subluxation, or severe residuals of his total knee replacement. 4. The Veteran’s service-connected disabilities are not shown to preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. Prior to February 23, 2014, the criteria for a rating in excess of 20 percent for left knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5256-5258, 5260, 5261. 3. Beginning November 1, 2015, the criteria for a rating in excess of 30 percent for left knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5055, 5256-5258, 5260, 5261. 4. The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to July 1971, September 1971 to July 1977, and December 1980 to April 1984. The claim was remanded by the Board in September 2018 for additional development and has been returned now following substantial compliance with the remand order. The Board also remanded the issues regarding right lower extremity and right anterior trunk scars for the issuance of a statement of the case. The SOC was issued in December 2020 and, to date, a Substantive Appeal has not been received. As the period to appeal has passed, the issues are no longer on appeal and will not be considered herein. Increased Rating 1. Entitlement to an increased disability rating in excess of 20 percent for lumbar spine disability The Veteran contends that he is entitled to a higher rating for his lumbar spine disability. Unfortunately, the Board finds that evidence does not demonstrate that the Veteran’s lumbar spine disability more nearly approximates the next highest disability rating. The Veteran’s lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, the next highest disability rating, a 40 percent rating, is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Based on the foregoing, the Veteran is eligible for a higher disability rating for his lumbar spine disability if the evidence demonstrates forward flexion of 30 degrees or less or some form of ankylosis. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for lumbar spine disability. At no time has his lumbar spine forward flexion been found to be limited to 30 degrees or less. A September 2011 VA examination revealed 50 degrees forward flexion without any change following repetitive use. Private physical therapy treatment records dated in 2020 reveal an estimated forward flexion of 50 percent of full flexion, or 45 degrees. Finally, in July 2020, VA examiner found forward flexion of 70 degrees, with an estimated decrease of forward flexion to 50 degrees due to functional factors such as pain and flare ups. In addition, at no time has the Veteran been diagnosed with ankylosis of the spine. He has been able to bend his lumbar spine in all directions throughout the appeal and both the 2011 and 2020 VA examiners specifically indicated that there was no ankylosis upon examination. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, repetitive use, and pain during flare-ups. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, while the Veteran has been diagnosed with IVDS during the 2011 VA examination, the 2020 VA examiner found no evidence of the disability upon examination. Furthermore, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The 2011 VA examiner indicated that the Veteran had a total duration of at least one week, but less than two weeks of bedrest within the last 12 months. At no time has the Veteran reported or has the medical evidence demonstrated doctor-prescribed bedrest, and certainly not bedrest of at least 4 weeks but less than 6 weeks during any 12-month period during this appeal. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any neurological abnormality associated with his spine disability. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for lumbar spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a higher initial disability rating in excess of 20 percent prior to September 23, 2014, for left knee arthritis (herein left knee disability) The Veteran contends that he is entitled to a higher rating for his left knee disability. The Board concludes that the evidence does not support a grant of a disability rating in excess of 20 percent prior to September 23, 2014. During this period, the Veteran’s left knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5258, a maximum 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of “locking, pain”, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. As the Veteran is in receipt of the highest schedular rating for dislocation of semilunar cartilage, there is no basis to award a higher evaluation. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). At the outset, the Board notes that throughout this period, including during VA treatment and the 2011 VA examination, the Veteran’s left knee was shown to be moveable in all directions and at no time during this period has the left knee joint been shown to be fixed in any position. Moreover, the 2011 VA examiner specifically found no evidence of ankylosis upon examination. Similarly, at no time has the Veteran reported, nor has the treatment or VA examination evidence demonstrate any evidence of instability or subluxation of the left knee. As such, a disability rating in excess of 20 percent is not warranted under Diagnostic Codes 5256 or 5257. Regarding range of motion, during the 2011 VA examination, the Veteran’s left knee flexion was possible to 105 degrees, with pain beginning at 100 degrees, while extension was limited by five degrees. The examiner found no changes following repetitive movement as well as no additional functional impairment despite pain and swelling of the left knee. The medical evidence during this time does not demonstrate compensable limitation of flexion or extension, which require flexion limited to 45 degrees or extension limited to 10 degrees. While the Board acknowledges the Veteran’s reports of limiting factors such as pain, flare ups, swelling, and fatiguability, such complaints were specifically considered by the 2011 VA examiner, who concluded that there was not an additional limitation of motion due to such factors. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for left knee disability prior to September 23, 2014. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a higher initial disability rating in excess of 30 percent beginning November 1, 2015, for left knee disability The Veteran contends that he is entitled to a higher rating for his left knee disability. The Board concludes that the evidence does not support a grant of a disability rating in excess of 30 percent beginning November 1, 2015. During this period, the Veteran’s left knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5055, as the Veteran underwent a total left knee replacement and subsequent convalescence and was therefore rated as 100 percent disabled from September 23, 2014, to November 1, 2015. The 30 percent rating assigned beginning November 1, 2015, is the minimum rating provided status post total right knee replacement under Diagnostic Code 5055. The Board has considered entitlement to a higher rating under Diagnostic Codes 5256, 5261, and 5262, as directed by Diagnostic Code 5055. Ankylosis, nonunion of the tibia and fibula, lateral instability, recurrent effusion, or recurrent subluxation is simply not shown nor contended. Indeed, reference is made to post-surgical X-ray reports that showed that the left knee prosthesis was in good position. In addition, the Veteran's limitation of motion of the left knee also does not equate limitation of extension of the leg to 30 degrees and his residual symptoms do not equate to severe, chronic residuals. In fact, evidence of record during this time period showed that the Veteran demonstrated mildly limited extension between zero and 20 degrees and demonstrated flexion to 120 degrees during the July 2020 VA examination. The examiner found no change in left knee performance following repetitive movement or as a result of factors such as pain, flare ups, weakness, or swelling. Indeed, the 2020 VA examination report indicated that the Veteran specifically denied any residuals of his total left knee replacement and the examiner categorized any associated residuals as mild. Evidence of record during the appeal period shows that the Veteran suffered from no more than intermediate degrees of residual weakness, pain, or limitation of motion in the left knee that does not warrant the assignment of a rating in excess of 30 percent under Diagnostic Codes 5055, 5261, or 5262. The Board has also considered all other Diagnostic Codes pertaining to the knee and leg and has found no other codes that apply in this case. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 30 percent for left knee disability beginning November 1, 2015. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to TDIU The Board notes that as of March 7, 2018, the Veteran is in receipt of a permanent and total disability rating. As such, the focus on this claim is entitlement to TDIU prior to that date. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. At the outset, the Board notes that following the Board remand, the Regional Office (RO) asked the Veteran on August 24, 2020, to complete and submit VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. As of the date of this decision, this form has not been received. The evidence of record does not contain information regarding the Veteran’s educational and employment history sufficient enough for the Board to properly evaluate the Veteran’s claim for TDIU. The only evidence of record regarding the Veteran’s TDIU contentions is a March 2013 statement from his representative which asserted that the Veteran ended employment as a computer technician in June 2010 because of the associated difficulty and stress of working with deteriorating extremities. The statement explained that the Veteran’s duties required him to crawl on hands and knees and use acute hand motor movements in order to plug in and service computers. The statement asserted that this is a clearly unmanageable task documented by his medical history given the severity of the arthritis in four major joints. As the Veteran was no longer able to complete tasks required by his profession, his representative stated that the Veteran was entitlement to TDIU beginning June 2010. The Board notes that it is unclear the level of education the Veteran possesses or his work history and experience. Furthermore, there is no evidence or opinion in the claims file prior to March 7, 2018, including numerous medical treatment records and VA examinations, which suggests that the Veteran was unable to obtain and maintain gainful employment for which his education and experience would otherwise qualify him. While the application for TDIU that the Veteran was requested to submit could have provided information necessary to evaluate the claim, the information can not be considered as the form was not submitted. (Continued on the next page)   As such, the Board finds that entitlement to TDIU is not demonstrated in this case and the claim must be denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. B., Bordewyk. 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.