Citation Nr: 21020870 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-00 129 DATE: April 8, 2021 ORDER Entitlement to an initial 10 percent rating for the period prior to April 14, 2017 for right knee chondromalacia is granted. Entitlement to an initial 10 percent rating for the period prior to April 14, 2017 for left knee chondromalacia is granted. Entitlement to an initial 10 percent rating for the period prior to April 14, 2017 for thoracolumbar spine disability, to include degenerative disc disease (DDD) and intervertebral disc syndrome (IVDS) is granted. Entitlement to an initial compensable rating of 10 percent, but no higher, for left (minor) shoulder calcific tendonitis for the period prior to July 11, 2011 is granted. Entitlement to a disability rating in excess of 10 percent for left (minor) shoulder calcific tendonitis for the period from July 11, 2011 to April 13, 2017 is denied. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s bilateral knee chondromalacia manifested as painful motion during the period prior to April 14, 2017. 2. The evidence is at least in equipoise as to whether the Veteran’s thoracolumbar spine disability, to include degenerative disc disease (DDD)and intervertebral disc syndrome (IVDS), manifested as painful motion for the period prior to April 14, 2017. 3. The evidence is at least in equipoise as to whether the Veteran’s left (minor) shoulder calcific tendonitis manifested as painful motion prior to July 11, 2011. 4. The weight of the evidence is against a finding that the Veteran’s left (minor) shoulder calcific tendonitis manifested as limitation of motion of the arm at the shoulder level for the period from July 11, 2011 to April 13, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial minimum compensable rating for the period prior to April 14, 2017 for right knee chondromalacia have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.59, 4.7, 4.71a. 2. The criteria for entitlement to an initial minimum compensable rating for the period prior to April 14, 2017 for left knee chondromalacia have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.59, 4.7, 4.71a. 3. The criteria for entitlement to an initial minimum compensable rating for the period prior to April 14, 2017 for thoracolumbar spine disability, to include degenerative disc disease (DDD) and intervertebral disc syndrome (IVDS) have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.59, 4.7, 4.71a. 4. The criteria for entitlement to an initial compensable rating of 10 percent, but no higher, for left (minor) shoulder calcific tendonitis for the period prior to July 11, 2011 have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.59, 4.7, 4.71a. 5. The criteria for entitlement to a disability rating in excess of 10 percent for left (minor) shoulder calcific tendonitis for the period from July 11, 2011 to April 13, 2017 have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.20, 4.59, 4.7, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1982 to September 2010, including a tour in Iraq from January 2008 to April 2009. His awards and decorations include the Legion of Merit and Bronze Star Medal. This appeal to the Board of Veterans’ Appeals (Board) originates from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). An April 2011 rating decision, in pertinent part, granted service connection for a thoracolumbar spine disability (then characterized as thoracolumbar spine osteophyte formation), a left shoulder disability, and bilateral knee chondromalacia, and assigned separate noncompensable ratings to all four disabilities, effective October 1, 2010 (the day after the Veteran’s discharge from active service). The Veteran timely initiated and perfected an appeal of the assigned ratings. A March 2015 supplemental statement of the case (SSOC) reflects that, upon further review, the RO granted a compensable rating of 10 percent for the left shoulder disability effective January 23, 2014. As this did not represent a complete grant of the benefits sought, the appeal continued, consistent with AB v. Brown, 6 Vet. App. 35 (1993). In March 2018 the Board granted a disability rating of 10 percent, but no higher, for the Veteran’s left shoulder disability, effective July 11, 2011; denied initial compensable ratings for the Veteran’s bilateral knee disabilities for the period prior to April 14, 2017; and denied an initial compensable rating for the Veteran’s thoracolumbar spine disability, to include DDD and IVDS for the period prior to April 14, 2017. The Veteran appealed his left shoulder claim; and his bilateral knee and thoracolumbar spine claims as to the period prior to April 14, 2017 to the U.S. Court of Appeals for Veterans Claims (CAVC). In August 2019 CAVC partially vacated the March 2018 Board decision and ordered the implementation of a Joint Motion for Partial Remand (JMPR) in which VA and the Veteran agreed, in pertinent part, that the Veteran’s left shoulder claim for a compensable rating prior to July 11, 2011 and in excess of 10 percent thereafter; and his bilateral knee and thoracolumbar spine claims for compensable ratings prior to April 14, 2017, should be remanded to obtain a medical opinion as to the functional limitations associated with those disabilities that complied with the standards discussed in Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, to be adequate, a medical opinion as to functional limitations of joint disabilities must include consideration of active, passive, weight bearing and non-weight bearing range of motion (ROM) testing, or an indication as to why such testing cannot or should not be performed. See Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The Board remanded the Veteran’s left shoulder, bilateral knee, and thoracolumbar spine claims in April 2020 to obtain a VA medical opinion consistent with Correia and the terms of the August 2019 JMPR. Specifically, the Board directed a VA examiner to opine as to whether it could reasonably be determined or estimated from ROM testing performed in September 2010 and August 2014 what passive range of motion (PROM) testing results and ROM on weight bearing and non-weight bearing would have been, had such testing been performed in relation to the Veteran’s left shoulder, bilateral knees, and thoracolumbar spine. In April 2020 a VA examiner stated as follows: “As initial exam performed was 10 years ago by a different provider, it cannot be reasonably determined or estimated without speculation from the noted ROM values what PROM, and ROM on weight- and non-weight bearing would have been at that time.” A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In October 2020 the Board found that there had not been substantial compliance with its April 2020 remand directives and remanded the Veteran’s claim again to obtain an addendum opinion, directing the examiner to provide the reasons why the requested opinion would require speculation, and to indicate whether there was any further need for information or testing necessary to make a determination; or, that the requested opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. A second addendum opinion was obtained in January 2021 from the examiner who provided the April 2020 addendum. The examiner stated their inability to retrospectively opine as to testing not performed a decade earlier by a different examiner was reflective of the medical community at large, and was the result of the fact that PROM may increase when motion is aided (as an element of PROM testing) and that ROM may decrease when weight is added (as in weight-bearing). The Board finds this explanation to be adequate, and therefore concludes that there has been substantial compliance with the April 2020 and October 2020 remand directives, and that adjudication of the instant claims is appropriate. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In adjudicating claims for VA benefits, the burden of proof only requires an “approximate balance” of the evidence for and against a claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is “unique” to the VA adjudicatory process, and “the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits.” Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully. Id. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Id. Painful motion may be shown by lay evidence. See Petitti v. McDonald, 27 Vet. App. 415, 425 (2015); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. Entitlement to an initial minimum compensable rating for the period prior to April 14, 2017 for bilateral knee chondromalacia is granted. The Veteran’s bilateral knee chondromalacia is rated under diagnostic code 5260 for limitation of flexion of the leg. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, both as in effect at the time of the Veteran’s October 2010 claim and presently, a minimum compensable rating requires a showing of limitation of flexion to 45 degrees; higher ratings require progressively greater degrees of limitation of flexion. Other diagnostic codes contemplate subluxation and/or instability of the knee. A July 2010 VA examiner noted normal bilateral knee ROM including after repetitive use. The examiner documented no instability. A June 2011 imaging study by private treating providers reflects no subluxation of the bilateral knees and the Veteran denied knee instability. A January 2014 VA examiner documented normal bilateral knee ROM. However, the July 2010 VA examiner noted bilateral crepitus in both knees and the Veteran reported a history of knee pain since April 2008, manifesting as stiffness, lack of endurance, tenderness, and grinding, elicited by physical activity. June 2011 private treating provider notes reflect complaints of knee pain well as treating provider documentation of crepitus on extension of both knees. The Veteran reported a “long history” of bilateral knee pain to the January 2014 VA examiner. The Board finds that, for the period prior to April 14, 2017, the evidence does not support a compensable rating for the Veteran’s bilateral knees on the basis of ROM limitation or instability. However, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s bilateral knee chondromalacia manifested as painful motion and/or crepitus for the period prior to April 14, 2017. Accordingly, the criteria for an initial minimum compensable rating for bilateral knee chondromalacia for the period prior to April 14, 2017 are met, and the same is hereby granted. 2. Entitlement to an initial minimum compensable rating for the period prior to April 14, 2017 for thoracolumbar spine disability, to include degenerative disc disease (DDD)and intervertebral disc syndrome (IVDS) The Veteran’s thoracolumbar spine disability is rated under Diagnostic Code 5242, which refers to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a. Under the General Rating Formula, both as in effect at the time of the Veteran’s October 2010 claim and presently, a minimum compensable rating requires a showing of, in pertinent part, 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. July 2010 and January 2014 VA examinations reflect normal lumbar spine ROM. However, the Veteran’s April 2010 separation examination reflects complaints of back pain. A June 2011 private treating provider note reflects complaints of low back pain. A July 2011 private treating provider note reflects limited ROM of the lumbar spine, though specific values were not recorded. The Board acknowledges that the January 2014 VA examination report reflects a diagnosis of IVDS, which, under the regulations in effect in October 2010 and presently, may be rated on the basis of incapacitating episodes treated by bed rest as prescribed by a physician. 38 C.F.R. § 4.71a. In this regard, the Board notes that while the January 2014 VA examiner documented incapacitating episodes purported to require bed rest, the only evidence of bed rest is the Veteran’s report that he self-treated with bed rest for a day or two. While the Veteran is competent to report this, such statements do not meet the rating criterion that bed rest must be prescribed by a physician. The Board finds that the evidence of record does not support a compensable rating for the Veteran’s thoracolumbar spine disability on the basis of limitation of ROM for the period prior to April 14, 2017. However, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s thoracolumbar spine disability manifested as painful motion for the period prior to April 14, 2017. Accordingly, the criteria for an initial minimum compensable rating for the Veteran’s thoracolumbar spine disability for the period prior to April 14, 2017 are met, and the same is hereby granted. 3. Entitlement to an initial minimum compensable rating of 10 percent for left (minor) shoulder calcific tendonitis for the period prior to July 11, 2011 is granted; entitlement to a disability rating in excess of 10 percent for left (minor) shoulder calcific tendonitis for the period from July 11, 2011 to April 13, 2017 is denied. The Veteran’s left shoulder disability is rated under a hyphenated diagnostic code: 5019-5201. See 38 C.F.R. § 4.20. Diagnostic code 5019 (bursitis) requires that bursitis be rated on the basis of limitation of motion as degenerative arthritis. Degenerative arthritis is rated under Diagnostic Code 5003, which provides that degenerative arthritis established by x-ray is rated on the basis of limitation of motion under the appropriate diagnostic code for the joint involved. Diagnostic Code 5201 provides for rating disabilities on the basis of limitation of motion of the arm. Thus, the Veteran’s left shoulder disability is rated under the hyphenated diagnostic code 5019-5201. The Board notes that the pertinent diagnostic codes as presently in effect are substantially the same as at the time of the Veteran’s October 2010 claim; pertinent differences are noted below. In rating disabilities of the shoulder and arm a distinction is made between major (dominant) and minor upper extremities for rating purposes. In the instant case, the record reflects that the Veteran is right-handed, which means that his left shoulder is the minor, or non-dominant, shoulder. Diagnostic code 5201 provides for a minimum compensable rating of 20 percent for limitation of motion of the arm to shoulder level. Presently, the code provides additional guidance that limitation of the arm to shoulder level means flexion and/or abduction limited to 90 percent. Alternatively, under Diagnostic Code 5003, in the absence of limitation of motion, a 10 percent rating may be assigned on the basis of x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. 38 C.F.R. § 4.71a. Thus, for the purposes of assigning a minimum rating on the basis of painful motion under 38 C.F.R. § 4.59, 10 percent represents the minimum rating available. A July 2010 VA examination report reflects the Veteran’s complaints of left shoulder pain, swelling, weakness, giving away, and lack of endurance, all of which were worsened by activity and relieved by rest and medication. Physical examination revealed no detectable alteration in form or function of the left shoulder. There was no sign of edema, weakness, tenderness, effusion, redness, heat, or abnormal movement. ROM testing revealed normal ROM in all planes. June 2011 private treatment records reflect decreased ROM of the bilateral shoulders, though specific values were not record. July 2011 private treating records note the Veteran’s complaints of increased shoulder pain after fishing, and that an MRI examination had shown a superior labral tear from anterior to posterior (SLAP) and minimal rotator cuff tendonitis without tear; physical examination revealed decreased ROM (though specific values were not recorded) and a positive impingement signs. A January 2014 VA examination report reflects a diagnosis of left shoulder strain. The Veteran reported the results of the 2011 MRI, and that he had been referred for physical therapy. He complained of aches, primarily when performing overhead activities, and he reported that he could not swing a golf club. He denied any flare-ups. Physical examination revealed no tenderness to palpation of the joint or guarding. ROM on flexion and abduction of 0 to 180 degrees, with onset of pain at 160 degrees of each plane. The examiner noted that the Veteran’s functional loss was pain on movement. The Board finds that the Veteran’s reports to the June 2010 VA examiner regarding his pain and functional limitations are consistent with his reports to his private treating providers in June 2011 and July 2011. The Board thus finds that the evidence is at least in equipoise as to whether the Veteran’s left shoulder disability manifested as painful movement prior to July 11, 2011. Accordingly, the criteria for a disability rating of 10 percent for left (minor) shoulder calcific tendonitis for the period prior to July 11, 2011 are met, and the same is hereby granted. Further, the Board finds that at no point during the period prior to April 13, 2017 did the Veteran’s left shoulder disability manifest as limitation of motion of the arm to shoulder level; in this regard, the Board specifically notes the Veteran’s January 2014 report of aches in his shoulder while performing overhead activities. In light of the provisions of 38 C.F.R. §§ 4.59 and 4.71a regarding rating under both Diagnostic Codes 5003 and 5201, the Board finds that the Veteran’s left shoulder disability does not most closely approximate the higher 20 percent rating available under code 5201. Thus, there is no question to resolve and the lower rating is appropriate. 38 C.F.R. § 4.7. In light of the foregoing, a grant of a disability rating in excess of 10 percent for left (minor) shoulder calcific tendonitis for the period from July 11, 2011 to April 13, 2017 is not warranted, and the same is hereby denied. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.