Citation Nr: 21022794 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-09 207 DATE: April 19, 2021 ORDER A rating higher than 20 percent prior to December 3, 2019, for lumbar strain is denied. A 40 percent rating, but no higher, as of December 3, 2019, for lumbar strain is granted. A rating higher than 10 percent for left knee patellofemoral pain syndrome is denied. A separate 10 percent rating for left knee instability is granted. REMANDED A rating higher than 50 percent for major depressive disorder and panic disorder is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to December 3, 2019, the Veteran’s lumbar spine flexion was not shown to be limited to 30 degrees or less; ankylosis was not shown. 2. As of December 3, 2019, the Veteran’s lumbar spine flexion was limited to 20 degrees; ankylosis was not shown. 3. The Veteran's left knee exhibited, at worst, limitation of flexion to ¬¬¬60 degrees. 4. Resolving reasonable doubt in the Veteran's favor, her left knee disability is also manifested by slight lateral instability. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 prior to December 3, 2019, for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5237. 2. As of December 3, 2019, the criteria for a 40 percent rating, but no higher, for a lumbar spine disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5237. 3. The criteria for a rating higher than 10 percent for left knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260. 4. The criteria for a separate 10 percent rating for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1994 to February1998. The Board has previously remanded these matters; they have been returned to the Board for adjudication. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40 , which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from that date. Lumbar Strain The Veteran’s lumbar strain was assigned a 20 percent rating prior to December 14, 2019, and a 40 percent rating thereafter under DC 5237. DC 5237 was not subject to revision in 2021. DC 5237 is part of the General Rating Formula for Diseases and Injuries of the Spine found in 38 C.F.R. § 4.71a. Under this formula, a 20 percent rating is assigned when there is 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 for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires forward flexion of the thoracolumbar spine limited to 30 degrees or less, or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. Lastly, a 100 percent rating is assigned if there is unfavorable ankylosis of the entire spine (when considering all segments - cervical, thoracic, and lumbar (thoracolumbar)). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees, extension is to 30 degrees, left and right lateral flexion are to 30 degrees, and left and right lateral rotation are to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See Note (2). At the outset, the medical evidence of record does not show that the Veteran experienced any degree or type of ankylosis. Nor has the Veteran or her representative identified any evidence which indicated that the Veteran has any degree of ankylosis of the lumbar spine. Thus, ratings higher than 40 percent are not supported by the record. Additionally, the Board notes that the Veteran’s December 2019 examination which provided the basis for her 40 percent rating was conducted on December 3, 2019. As such, her lumbar spine was shown to meet the criteria for a 40 percent rating as of that date. Thus, a 40 percent rating, but no higher, for the Veteran’s lumbar spine disability is warranted as of December 3, 2019. However, for the period prior to December 3, 2019, there is no evidence of record, and neither the Veteran nor her representative identified any such evidence, which showed the Veteran’s lumbar spine was limited in range of motion to forward flexion to 30 degrees or less. The rating criteria mandates that such a limitation is necessary for a rating higher than 20 percent (based on limitation of motion and not ankylosis). Prior to her December 2019 examination, the Veteran’s lumbar spine flexion was normal. See April 2015 VA examination. Though the Veteran did report flare-ups and has consistently and credibly reported severe lumbar spine pain, there is no evidence to indicate that her flare-ups or documented pain resulted in a limitation of flexion to 30 degrees or less, which is required by the rating criteria for a rating higher than 20 percent. At no point prior to the December 2019 VA examination was lumbar spine flexion measured at 30 degrees or less nor has her pain been shown to approximate a limitation of flexion to 30 degrees or less. Therefore, rating higher than 20 percent prior to December 3, 2019, is not warranted. The Board finds the VA examiners' medical opinions and VA medical records probative to the issue of the severity of the Veteran's lumbar spine disability. Specifically, the examiners interviewed the Veteran and conducted physical examinations. Moreover, the examiners had the requisite medical expertise and had sufficient facts and data on which to base the conclusions. As such, the Board accords the examination findings great probative weight. The Board has also considered the Veteran’s lay statements. While the Veteran is competent to report her symptoms and the Board finds her complaints of pain credible, whether a disability meets the schedular criteria for the assignment of an evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Here, although the Veteran may believe that she meets the criteria for a higher rating, the medical findings show that she does not meet the schedular requirements for such, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran’s degree of disability. Thus, based on the evidence of record, the Board does not find that a rating higher than 20 percent prior to December 3, 2019, is warranted. However, the Veteran’s 40 percent rating for her lumbar spine is warranted as of her December 3, 2019, VA examination. Left Knee Patellofemoral Pain Syndrome The Veteran’s left knee has been assigned a 10 percent rating as of December 1, 2014, pursuant to DC 5260. The Board notes that DC 5260 was not revised under the 2021 revisions. DC 5260 provides a 10 percent rating for flexion limited to 45 degrees, a 20 percent rating for flexion limited to 30 degrees, and a 30 percent rating for flexion limited to 15 degrees. See 38 C.F.R. § 4.71a, DC 5260. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71a, Plate II. After review of the record, the Board does not find that a rating higher than 10 percent is warranted. Throughout the period on appeal, the Veteran’s left knee showed, at worst, flexion limited to 60 degrees, even when accounting for pain and repetitive testing. See April 2016 VA medical record. Though the Veteran did report flare-ups and has consistently and credibly reported severe left knee pain, there is no evidence to indicate that her flare-ups or documented knee pain resulted in a limitation of flexion to 30 degrees or more, which is required by the rating criteria for a rating higher than 10 percent. At no point was flexion in her left knee measured at less than 60 degrees nor has her pain been shown to approximate a limitation of flexion to 30 degrees or more. Indeed, medical records showed that though the Veteran consistently reported left knee pain, her range of motion was often normal. See November 2014, April 2015 VA examination, Therefore, a higher rating under DC 5260 for limitation of motion of the Veteran’s left knee is not warranted. The Board again finds the VA examiners' medical opinions and VA medical records probative to the issue of the severity of the Veteran's left knee disability. Specifically, the examiners interviewed the Veteran and conducted physical examinations. Moreover, the examiners had the requisite medical expertise and had sufficient facts and data on which to base the conclusions. As such, the Board accords the examination findings great probative weight. The Board has again considered the Veteran’s lay statements of evidence and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran’s degree of disability. As such, a rating higher than 10 percent for the Veteran’s left knee limitation of motion is denied.   Left Knee Instability The Board has also considered whether a separate rating under DC 5257 for recurrent subluxation or lateral instability is appropriate. As stated above, the rating criteria prior to the 2021 revisions must be applied in the manner most favorable to the Veteran. Prior to the revisions, DC 5257 mandated that a 10 percent rating was assigned when slight impairment is shown, a 20 percent rating was warranted for moderate disability, and a maximum 30 percent evaluation was warranted for severe disability. 38 C.F.R. § § 4.71a. See also Johnson v. Brown, 9 Vet. App. 7, 11 (1996) (holding that DC 5257 is not predicated on loss of range of motion). Descriptive terms such as "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The Board finds that DC 5257 prior to the 2021 revisions is more favorable to the Veteran as the revised DC criteria require diagnosis of either a sprain, incomplete ligament tear, or complete ligament tear, which is not found in the Veteran’s left knee medical treatment. Though the Veteran’s VA examinations did not find she had recurrent subluxation or lateral instability, the Veteran has consistently reported that she frequently experiences buckling, popping, locking, and left knee instability. See November 2014, April 2015, December 2019 VA examinations and October 2015 VA medical records. The Veteran stated that she has fallen a few times due to her knee buckling. Id. Additionally, the Veteran’s VA examinations show that she was prescribed a knee brace for support. Based on the foregoing, after resolving reasonable doubt in the Veteran's favor, the Board finds that a separate 10 percent rating is warranted for slight lateral instability of the left knee. However, at no time during the appeal period has any of the Veteran's physicians or VA examiners noted the Veteran to have moderate recurrent subluxation or lateral instability. Further, the Board does not find the record to contain any evidence, to include the Veteran's lay statements, which may suggest the disability picture more nearly approximates moderate instability. As such, a rating higher than 10 percent is not warranted. As the Veteran's knee disability did not result in ankylosis, impairment of the tibia and fibula, or genu recurvatum, DCs 5256, 5262, and 5263 are not for application. In sum, a rating higher than 10 percent for the Veteran's left knee disability pursuant to DC 5260 is not warranted; however, resolving reasonable doubt in the Veteran's favor, a separate rating of 10 percent for the Veteran's left knee instability pursuant to DC 5257, is warranted. REASONS FOR REMAND Major Depressive Disorder and Panic Disorder The Veteran was service connected for her posttraumatic stress disorder (PTSD) in February 2021. The Veteran has undergone multiple VA examinations which addressed the severity of her PTSD, but she has not been afforded a comprehensive examination which addressed the totality of the severity of her PTSD, depressive disorder, and panic disorder. Thus, an examination which assesses the severity of the entirety of the Veteran’s mental health disabilities is warranted. TDIU With respect to the Veteran’s claim for a TDIU, the claim is inextricably intertwined with the above grant of a separate rating for the Veteran’s left knee lateral instability as well as the remand of the Veteran’s mental health disorders. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected PTSD, major depressive disorder, and panic disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to the Veteran’s mental health disorders. 2. After the above directives have been completed and appropriate action has been taken on the remanded claims and completing any other development necessary, readjudicate the claim of entitlement to a TDIU considering all pertinent evidence and legal authority. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.