Citation Nr: 21013623 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-15 920A DATE: March 10, 2021 ORDER A disability rating for patella tendonitis of the right knee, in excess of 10 percent from May 12, 2012, and in excess of 30 percent from October 2, 2019, is denied. A disability rating for lumbosacral strain in excess of 20 percent from May 31, 2012 is denied. FINDINGS OF FACT 1. For the rating period on appeal from May 12, 2012 to October 2, 2019, the patella tendonitis of the right knee has been manifested by pain and weakness of the joint. 2. For the rating period on appeal from October 2, 2019, the patella tendonitis of the right knee has been manifested by limitation of extension to 20 degrees during flare-ups. 3. For the entire rating period on appeal from May 31, 2012, the lumbosacral strain has been manifested by limitation of forward flexion to greater than 30 degrees but not greater than 60 degrees. CONCLUSIONS OF LAW 1. For the rating period on appeal from May 12, 2012 to October 2, 2019, the criteria for an increased disability rating in excess of 10 percent for patella tendonitis 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, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5003. 2. For the rating period on appeal from October 2, 2019, the criteria for a disability rating in excess of 30 percent for patella tendonitis 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, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5261. 3. For the entire rating period on appeal from May 31, 2012, the criteria for an increased disability rating in excess of 20 percent for lumbosacral strain 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, 4.71, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1984 to September 2004 during the Gulf War Era and Peacetime. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Review of the record reflects that the Veteran received adequate notice concerning the issues on appeal and that the duty to assist has been fulfilled. Neither the Veteran nor the representative has raised any contentions regarding the duties to notify or assist. 1. Rating Right Knee Patella Tendonitis For the rating period on appeal from May 12, 2012, the Veteran is in receipt of a 10 percent rating for the service-connected patella tendonitis of the right knee, applying 38 C.F.R. § 4.59 for painful motion of the joint and rating under the substantive criteria of Diagnostic Code 5003 (10 percent rating for painful, noncompensable limitation of motion). For the rating period on appeal from October 2, 2019, the Veteran is in receipt of a 30 percent rating for the patella tendonitis of the right knee under DC 5261. The Veteran contends that the right knee disability should be rated at 30 percent from the date of the claim for increased rating: May 12, 2012. The 30 percent stage of the rating is based on the date of a VA examination and findings during that examination. The Veteran also contends that the patella tendonitis should be rated higher than 30 percent for the stage of the rating from October 2, 2019. The Agency of Original Jurisdiction initially granted the 10 percent rating based upon painful motion of the spine with noncompensable limitation of motion, which is the substantive criteria of Diagnostic Code 5003. VA treatment records from March 2012 and May 2012 include reports that the Veteran did not have myalgia, arthralgia, swollen joints, leg cramps, or loss of muscle strength; the Veteran had coordinated and smooth gait; there was no clubbing or cyanosis; the knee joints had full ROM with no pain and no contractures; and there were no findings of muscle atrophy or weakness. The Veteran was examined by VA in August 2012. The Veteran reported mild pain and swelling of the right knee, especially with activity. Wearing a knee brace helped to prevent most symptoms. The Veteran denied experiencing flare-ups. The range of motion in flexion was to 100 degrees, with pain beginning at 100 degrees. There was no limitation of motion in extension. The VA examiner noted full knee strength; no instability; no subluxation or dislocation; no tibial or fibular issue; and no meniscal conditions. In October 2012, the Veteran reported that the knee condition was worse than was rated. The Veteran stated that the range of motion and ability to flex the knee was less than that stated by the examiner in the August 2012 examination. In October 2018, the Veteran reported that he was required to use a knee brace because of frequent bouts of knee pain. When questioned about whether the knee brace was to address the joint locking or to address knee pain, the Veteran stated that the brace was to address knee pain. The Veteran was next examined by VA in October 2019. The Veteran reported pain and flare-ups of the right knee. The range of motion in flexion was limited to 140 degrees both with and without repetitive use, and assessed to be limited to 130 degrees during flare-ups. The range of motion in extension was limited to 10 degrees; to 15 degrees with repetitive use; and to 20 degrees during flare-ups. The VA examiner found no ankylosis, no nonunions, no subluxation or dislocation, no instability, no effusions, no tibial or femoral issues, and no meniscal conditions. A 30 percent rating under DC 5261 is warranted when extension is limited to 20 degrees. The Board finds that the 30 percent rating was first factually ascertainable based on the evidence of record starting on October 2, 2019. As this is later than the May 12, 2012 claim for increase, by law October 2, 2019 is the effective date. After a review of all the evidence, the Board finds that, for the rating period from May 12, 2012 to October 2, 2019, the right knee disability most nearly approximates the criteria for a 10 percent rating under 38 C.F.R. § 4.59 and Diagnostic Code 5003 for painful but noncompensable limitation of motion of the joint. The VA examination performed in August 2012 showed the Veteran had noncompensable limitation of motion in flexion and extension. Treatment records from March and May 2012 are consistent with these limitation of motion measures. The evidence does not show a worsening from May 12, 2012 to October 2, 2019 to meet the criteria for a higher rating than 10 percent. The Veteran stated in October 2012 that the range of motion was less than in August 2012, but this is contrasted by consistent findings of noncompensable limitation of motion in March, May, and August 2012. In a hearing before the Board in October 2018, the Veteran stated that he used a knee brace in response to knee pain: similarly, on the August 2012 examination, the Veteran reported that wearing a knee brace helped alleviate the pain in his knee. A rating of 20 percent is also not warranted for the period from May 12, 2012 to October 2, 2019 because the limitations of motion during this period are not even compensable (10 percent), but are noncompensable; therefore, ratings in excess of 10 percent, or separate 10 percent ratings for limitations of both extension and flexion are not warranted for this period. A rating of 20 percent under DC 5260 requires limitation of flexion to 30 degrees. A rating of 20 percent under DC 5261 requires limitation of extension to 15 degrees. As noted above, all limitation of motion in flexion and extension from May 12, 2012 to October 2, 2019 was noncompensable. Accordingly, a rating in excess of 10 percent is not warranted prior to October 2, 2019. Only the October 2, 2019 VA examination showed compensable limitation of motion to warrant the staged rating of 30 percent. The Board finds that the disability picture of the right knee from October 2, 2019 most resembles a 30 percent rating under DC 5261. A 40 percent rating under DC 5261 is warranted where limitation of motion in extension is to 30 degrees. The October 2019 VA examination revealed that the limitation of motion of extension of the right knee is to 10 degrees. With repetitive use, extension is further limited to 15 degrees. Extension is further limited to 20 degrees during flare-ups. Accordingly, a 40 percent rating under DC 5261 is not warranted. Regarding possible alternative ratings, a 40 percent rating under DC 5256 is warranted where there is ankylosis of the knee in flexion between 10 degrees and 20 degrees. However, the October 2019 VA examination found no evidence of ankylosis in the right knee, and the other evidence of record similarly shows no lay descriptions or findings of knee ankylosis. For these reasons, a disability rating for patella tendonitis of the right knee, in excess of 10 percent from May 12, 2012, and in excess of 30 percent from October 2, 2019, must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.71a. 2. Initial Rating of Lumbosacral Strain For the entire rating period on appeal from May 31, 2012, the Veteran is in receipt of a 20 percent initial disability rating for the service-connected lumbosacral strain under DC 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, applicable under DC 5237, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. A 40 percent rating is warranted where there is favorable ankylosis of the entire thoracolumbar spine. Note 5 of DC 5237 defines unfavorable ankylosis as a condition of the cervical, thoracolumbar, or entire spine where the spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Note 5 also states that fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. At the August 2012 VA examination, the Veteran reported persistent stiffness and occasional pain worsened by activity, and experiencing flare-ups. Forward flexion of the spine was limited to 60 degrees, which was where pain began. Extension was limited to 5 degrees where pain began. Right and left lateral flexion each were limited to 15 degrees where pain began. Right and left lateral rotation each were limited to 10 degrees where pain began. These values were unchanged with repetitive use. The VA examiner noted full muscle strength, no atrophy, normal sensory examinations, no radiculopathies, no IVDS, and occasional use of a back brace. An April 2014 VA treatment record measured the range of motion of the thoracolumbar spine. Flexion was limited to 55 degrees; extension to 10 degrees; and right and left lateral flexion were each limited to 10 degrees. The record includes findings of full muscle strength and normal reflexes. In October 2018, the Veteran reported infrequent episodes of locking of the back that were six or seven months apart. The episodes reportedly resolved within three or four days. At a VA examination in October 2019, the Veteran reported daily pain of 5 out of 10, with severe flare-ups monthly lasting up to a few hours per day and with pain increased to a 10 out of 10. Initial range of motion findings were forward flexion limited to 55 degrees; extension to 5 degrees; right and left lateral flexion each to 15 degrees; right lateral rotation to 5; and left lateral rotation to 10. With repetitive use and during a flare-up, range of motion was further limited to 45 degrees in forward flexion; 0 degrees in extension; 5 degrees in right lateral flexion; 10 degrees in left lateral flexion; 5 degrees in right lateral rotation; and 10 degrees in left lateral rotation. The VA examiner found no muscle atrophy, some reduced strength in the hips and knees, no ankylosis, normal reflexes, no IVDS, and no vertebral fractures. The Veteran did not report use of an assistive device. (Continued on the next page)   Regarding a potential increase under the General Rating Formula for Diseases and Injuries of the Spine, the Board finds that the lumbosacral strain has not manifested in ankylosis of the thoracolumbar spine. No segment of the spine is fixed in a neutral position. The evidence, lay and medical, does not describe or show ankylosis at any point in time. After a review of all the evidence of record, the Board finds that, even considering periods of flareups, for the entire rating period on appeal from May 31, 2012, the lumbosacral strain has been manifested by limitation of forward flexion to greater than 30 degrees but not greater than 60 degrees. Accordingly, the Board finds that, for the entire initial rating period on appeal from May 31, 2012, the criteria for an increased disability rating in excess of 20 percent for lumbosacral strain are not met. 38 C.F.R. §§ 4.3, 4.7, 4.71a. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Charles Plambeck 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.