Citation Nr: 21022672 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-26 829 DATE: April 19, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for lumbosacral strain with degenerative arthritis and degenerative disc disease is denied. Entitlement to a disability rating in excess of 10 percent for patellar tendonitis right knee is denied. Entitlement to a separate 10 percent disability rating, but no higher, for slight right knee instability is granted. Entitlement to a disability rating in excess of 10 percent for patellar tendonitis left knee is denied. FINDINGS OF FACT 1. The Veteran’s lumbosacral strain with degenerative arthritis and degenerative disc disease is manifest at the worst, by forward flexion limited to 60 degrees. 2. The Veteran's right knee patellar tendonitis is manifest by pain with normal extension and flexion, at worst, limited to 60 degrees. 3. Affording the Veteran the benefit of the doubt, the right knee demonstrated slight lateral instability. 4. The Veteran's left knee arthritis is manifest by pain with normal extension and flexion, at worst, limited to 70 degrees. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for lumbosacral strain with degenerative arthritis and degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5237. 2. The criteria for a rating in excess of 10 percent for right knee patellar tendonitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5260. 3. The criteria for a separate 10 percent rating for right knee lateral instability have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 4. The criteria for a rating in excess of 10 percent for left knee patellar tendonitis manifest in limitation of motion with pain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1987 to December 1997 and in the United States Army from January 2001 to May 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. In April 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). As in the instant case, separate ratings for distinct periods of time, based on the facts may be for consideration. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss is evidenced by visible behavior of the claimant undertaking the motion. 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. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic codes, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria."). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. VA recently published a final rule amending its regulations on musculoskeletal disabilities, including some diagnostic codes pertaining to the knees, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. See VAOGCPREC 7-2003. However, “the case law is clear that a regulation is not to be applied retroactively unless the regulation is intended to be retroactive.” Ervin v. Shinseki, 24 Vet. App. 318, 322 (2011) (citing Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003)). Here, the recently revised regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, for the period beginning February 7, 2021, the version more favorable to the Veteran will apply. Here, however, the only applicable changes pertaining to instability of the knee, which will be discussed below. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Lumbosacral strain with degenerative arthritis and degenerative disc disease The Veteran contends that his lumbar spine disability is more severe than what is contemplated by the currently assigned 20 percent disability rating. DC 5237 provides that: a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. Note (1) of the General Rating Formula provides that VA should evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. Id. In the alternative, intervertebral disc syndrome (IVDS) is evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, DC 5243 (2020). Note (1) of 38 C.F.R. § 4.71a, DC 5243 states that an "incapacitating episode" is 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. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Upon review of all the evidence of record, the Board finds that the evidence of record weighs against a finding that the Veteran's lumbosacral spine disability more nearly approximates a rating in excess of 20 percent. A July 2015 clinic note reflects that the Veteran reported worsening back pain without leg numbness or weakness. He had full range of motion upon examination. In an October 2017 note the Veteran’s chronic back pain was stable and he used Flexeril on an as needed basis. In the April 2019 Board hearing, the Veteran testified that he was taking medication for his chronic back pain and was currently undergoing holistic treatment including an inversion table and acupuncture. Neither treatment seemed to be working and his only options were steroid injection shots and surgery. In December 2020 the Veteran underwent a VA back conditions examination in which lumbosacral strain and degenerative arthritis of the spine were confirmed. IVDS and ankylosis were not noted. At that time, he reported difficulty walking, twisting or turning and pain and stiffness aggravated by sitting at a desk all day at a computer. The symptoms increased during flare-ups precipitated by low impact exercise, doing heavy lifting or moving, or intense stretching yoga. Pain was noted with weightbearing, there was tenderness to palpation and pain on examination causing functional loss. The examiner further indicated that pain limited the Veteran's functional ability after repeated use over time and during a flare-up. Muscle strength testing was normal. There was also no objective evidence of muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. Initial and observed repetitive use range of motion testing demonstrated forward flexion to 70 degrees and extension to 10 degrees with right and left flexion and rotation totalling an additional 70 degrees. With repeated use over time there was an additional 5 degrees lost in each vector, and with flare-ups 10 degrees was lost in each vector from the initial ranges of motion. Bilateral radicular symptoms from the sciatic nerve were present with constant moderate pain on the right and constant mild pain on the left. The Board considered the Veteran's reported impairment of function and additional limitations of motion due to pain. In the absence of IVDS, even considering additional limitation of motion or function of the lumbar spine due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence does not show that the lumbar spine disabilities more nearly approximate the criteria for higher ratings. Observed repetitive range of motion testing did not reveal any additional loss of range of motion of the lumbar spine. At worst, projections for flare-ups indicate a decrease to 60 degrees of forward flexion. The Board finds that the limitation of motion and functional loss due to pain is contemplated in the 20 percent rating already assigned. Based on the objective medical evidence of record, there is no basis for the assignment of a higher rating pursuant to 38 C.F.R. §§ 4.40 and 4.45. In addition to consideration of the orthopedic manifestations of the lumbar spine disabilities, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. The Board notes that the Veteran has been awarded service connection for bilateral lower extremity radiculopathy effective December 1, 2020. However, as he has not indicated his disagreement with either the initial rating assigned or the effective date, the Board need not revisit the ratings. In Tyrues v. Shinseki, 23 Vet. App. 166 (2009) (en banc) the Court recognized that VA has broad discretion to dismember a claim and adjudicate the pieces in jurisdictionally separate proceedings. See also Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (“Bifurcation of a claim generally is within VA’s discretion.”). For these reasons, the Board finds that the preponderance of the evidence is against the assignment of a disability evaluation in excess of 20 percent for the lumbar spine for the rating period on appeal. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Evaluation in excess of 10 percent for patellar tendonitis right knee 3. Evaluation in excess of 10 percent for patellar tendonitis left knee The Veteran seeks a higher rating for his service-connected bilateral knee disabilities, diagnosed as patellar tendonitis. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The relevant rating criteria include Diagnostic Code 5010, which instructs the rater to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f). The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 (limitation of flexion) and 5261 (limitation of extension). The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004. Separate ratings may be assigned for limitation of flexion, extension, instability, and a meniscal disability of the same knee under Diagnostic Codes 5260, 5261, 5237, 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017); VAOPGCPREC 09-04. Diagnostic Code 5257 (in effect prior to February 7, 2021) provides ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. For the version of Diagnostic Code 5257 in effect since February 7, 2021, recurrent subluxation or instability warrants a 10 percent rating for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). A 20 percent rating is warranted for one of the following: a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s),crutch(es), walker) for ambulation; or, b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), or a walker) or bracing for ambulation. See id. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. See id. Also under Diagnostic Code 5257, patellar instability warrants a 10 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. See id. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. See id. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. See id. Note (1) following Diagnostic Code 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) states a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). See id. Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). On review, the Board finds that the criteria for a rating higher than 10 percent for limitation of motion of the right and left knees are not met. During the appeal period, flexion of the right knee was, at worst, limited to 60 degrees and of the left knee 70 degrees. As such, a rating in excess of 10 percent for limitation of flexion of the right knee is not warranted. Diagnostic Code 5260. A review of the VA treatment records includes March, April and July 2015 visits in which the Veteran reported constant bilateral knee pain present for 2 years or more which did not decrease with sitting. His knee examination was within normal limits. January 2014 x-rays were within normal limits with no arthritic change visible. The Veteran testified in his April 2019 hearing that his knees were constantly clicking and popping in all positions. They were sore with a dull aching pain and flare-ups twice a week. The Veteran stated that his disabilities had worsened since his last VA examination in 2014. The Veteran underwent a VA lower extremity examination in December 2020. Bilateral degenerative arthritis and patellar tendonitis was confirmed by the examiner. No x-rays had been taken. The Veteran reported bilateral knee pain and swelling and moderate flare-ups twice a month lasting three days when “overworked.” Functional loss included the feeling of knees giving-out, swelling, and painful stiffness or locking up. The Veteran indicated that he is unable to kneel, crouch and has difficulty walking and standing more than 30 minutes and navigating stairs or uneven territory. Upon examination pain causing functional loss was noted on flexion and extension as the pain translated to decreased range of motion. There was localized tenderness to palpation in the subpatellar area over the tibial tuberosity. Upon both initial testing and observed repetitive use testing the right knee exhibited 70 degrees of flexion and extension and the left knee exhibited 80 degrees of flexion and extension. Upon repeated use over time, the Veteran was noted to lose 5 degrees of motion from initial range of motion testing bilaterally. With flare-ups he lost 10 degrees of motion bilaterally from initial range of motion testing. Stability testing was normal, and the Veteran reported slight right knee lateral instability. There was no evidence of pain on passive range of motion testing or on non-weightbearing testing of the left knee; pain was present with both for the right knee. The examiner commented that passive range of motion was the same as active as the Veteran tensed and guarded against moving the knee joint past where he indicated pain was elicited. Muscle strength testing was normal and there was no ankylosis or tibia-fibula symptomology. For a rating in excess of 10 percent to be warranted, the Veteran's disability must be manifested by flexion limited to 30 degrees (Diagnostic Code 5260), or extension limited to 15 degrees (Diagnostic Code 5261). The Board notes that the VA treatment records and examinations do not reflect this limitation. Addressing the DeLuca criteria, there is no medical evidence to show that there is any additional loss of motion of the right knee due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 10 percent. At the worst, flexion was limited during flare-ups to 60 and 70 degrees for the right and left knees respectively with a corresponding full extension to the degree of flexion. These limitations in range of motion with pain during repetitive use over time and during flare-ups are accounted for in the 10 percent ratings currently assigned to the knees bilaterally. The Board has also considered the criteria for a separate rating for right knee instability under Diagnostic Code 5257, in effect both prior to and since February 7, 2021. The medical evidence throughout the rating period on appeal does not show that the Veteran has instability of the right knee or recurrent subluxations or dislocations. The Veteran reported slight lateral instability of the right knee during his 2020 examination, however, the examiner found no objective evidence of instability in the right knee or the left knee upon testing. Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347 (2018). Based on the evidence of record, the Board finds that, affording the Veteran the benefit of the doubt, his right knee instability warrants a separate 10 percent rating throughout the period on appeal under the version in effect prior to February 7, 2021. As the Veteran has competently and credibly reported right knee instability symptoms, the Board finds that a separate 10 percent rating is warranted for slight lateral instability of the right knee for the rating period on appeal. As the Board is granting the benefit under Diagnostic Code 5527 pursuant to the version in effect prior to February 7, 2021, further discussion of the regulations in effect since February 7, 2021 is not warranted. In considering the applicability of other diagnostic codes, the Board finds that Diagnostic Codes 5256 (ankylosis of the knee), 5258 (dislocated cartilage), 5259 (symptomatic removal of semilunar cartilage), 5262 (tibia and fibula impairment), and 5263 (genu recurvatum) are not applicable in this instance, as the medical evidence does not show that the Veteran has any of those conditions. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5263. For these reasons, the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's bilateral knee pain with limitation of motion and an increased disability rating is not warranted. Affording the Veteran the benefit of the doubt, a separate rating for slight lateral instability of the right knee is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.