Citation Nr: 21023614 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-19 472 DATE: April 21, 2021 ORDER A rating in excess of 20 percent for degenerative disc disease, lumbar spine, is denied. A rating of 30 percent for tension headaches (claimed as migraines) is granted. A rating in excess of 10 percent for a right knee disability is denied. FINDINGS OF FACT 1. The weight on the competent evidence reflects that the Veteran’s degenerative disc disease of the lumbar spine was not manifested by functional limitations or limitation of motion equivalent to 30 degrees or less of forward flexion, or favorable ankylosis of the entire thoracolumbar spine. 2. The weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s migraine disability more closely approximated characteristic prostrating attacks occurring on an average once a month. 3. The weight on the competent evidence reflects that Veteran’s right knee had extension of 10 degrees or better, and flexion of 45 degrees or better. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for degenerative disc disease, lumbar spine, have not been met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.10, 4.71a, Diagnostic Codes 5242-5237. 2. The criteria for a rating of 30 percent, but no higher, for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.114, Diagnostic Code 8100. 3. The criteria for a rating in excess of 10 percent disabling for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2009 to February 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in July 2018, at which time it was remanded for further development. As the requested development has been substantially completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the propriety of the initial disability rating assigned after a grant of service connection, the evidence since the effective date of the award must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct periods during the course of the appeal. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to report symptoms and experiences observable by his or her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease, lumbar spine. The Veteran contends that he is entitled to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine, evaluated under Diagnostic Codes 5242-5237. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) a 20 percent disability rating is assigned 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 such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’” as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because “pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss.” Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (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 (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.”). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero 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 Plate V, 38 C.F.R. § 4.71a, Note (2). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this instance, the evidence does not support a change to the assigned rating. The Veteran’s lumbar spine disability is currently rated as 20 percent disabling. As noted above, in order to warrant a higher rating, the Veteran’s disability would have to be manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. An October 2013 VA examination conducted ROM testing and noted forward flexion of 75 degrees. Pain was noted in the ROM testing but did not result in additional loss of motion. The examiner found that the Veteran did not have ankylosis, muscle atrophy, intervertebral disc syndrome (IVDS), or radiculopathy (or any other neurologic abnormalities or findings related to the back). The Veteran did not report flareups. 10/23/2013, C&P Exam, pages 2-7. More recently, a December 2020 VA examination conducted ROM testing and noted forward flexion of 60 degrees. Pain was noted in the ROM testing on rest and non-movement. There was not additional loss of ROM after three repetitions. There was functional loss after repeated use over time and flareups due to pain, fatigue, weakness, and lack of endurance. The examiner noted an estimated forward flexion of 50 degrees during flareups and after repeated use over time. The examiner found that the Veteran did not have ankylosis, muscle atrophy, or IVDS. The examiner noted radiculopathy of the left lower extremity, which is a service-connected disability. 12/23/2020, C&P Exam. After reviewing the pertinent evidence, the Board finds that it does not reflect a disability picture with functional limitation significant enough to more nearly approximate flexion restricted to 30 degrees, or analogous to favorable ankylosis of the entire thoracolumbar spine. Therefore, the criteria for a disability rating higher than 20 percent are not met. 2. Entitlement to a rating in excess of 10 percent for tension headaches. The Veteran contends that he is entitled to a rating in excess of 10 percent for headaches, evaluated under Diagnostic Code 8100. Under the General Rating Formula, a 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on average once a month over the last several months. Finally, a maximum 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The phrase “very frequent,” while inexact, connotes a frequency greater than once a month. DC 8100 contains successive rating criteria, as each disability level builds on another in terms of duration and frequency and requires that a veteran rated at a higher level satisfy all of the requirements of the lower levels. Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018). The Board observes that the rating criteria do not define “prostrating.” Dorland’s Illustrated Medical Dictionary defines “prostration” as “extreme exhaustion or powerlessness.” See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd ed. 2012). Similarly, the rating criteria also do not define “severe economic inadaptability.” However, the Court has stated that this term is not synonymous with being completely unable to work and VA has conceded that the phrase “productive of” could be read to mean either “producing” or “capable of producing” economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004) (stating that “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating”). Additionally, “Characteristic” is “a trait, quality, or property or a group of them distinguishing an individual, group, or type.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 376 (1966) [WEBSTER’S]. “Prostrating” means “lacking in vitality or will: powerless to rise: laid low.” Id. at 1822. “Completely” is defined as “to complete degree: entirely.” WEBSTER’S at 465. In other words, the headaches must render the veteran entirely powerless. Johnson, 30 Vet. App. at 253. An October 2013 VA examination noted the diagnosis of tension headaches. The examiner found that the Veteran did not have characteristic prostrating attacks of migraine headache pain. Nonetheless, the Veteran reported daily headaches that can last anywhere from a couple of hours to all day. And, the pain from severe headaches was described as the Veteran’s head about the explode, with pain starting at the back of the head and radiating to the front in a band like pattern. 10/23/2013, C&P Exam, pages 16-19. A December 2020 VA examiner found that the Veteran had characteristic prostrating attacks of migraine headache pain occurring less frequently than once in every two months. The symptoms of the Veteran’s headache pain included pulsating or throbbing head pain, pain on both sides of the head worsening with physical activity, nausea, vomiting, sensitivity to light and sound, and changes in vision. The examiner founds that the Veteran would have difficulty with strenuous activities and that work environments may trigger onset of this condition in both physical and sedentary jobs. 12/23/2020, C&P Exam. The VA treatment records reveal that, in May 2015, the Veteran reported that his headaches occurred between four and five times a week, causing him to miss work on multiple occasions over a period of a couple months. 04/16/2020, CAPRI, page 256. The Board finds that a rating of 30 percent, but no higher, is warranted for tension headaches throughout the period on appeal, because the frequency, severity, and duration of the Veteran’s headaches more closely approximated characteristic prostrating attacks occurring once a month on average. Furthermore, the symptoms of a typical headache, as described in both VA examinations, indicate that the Veteran is frequently rendered entirely powerless several times a week due to severe pain. And, the evidence shows that the Veteran having to leave work early on occasion due to his headaches. The Board acknowledges the October 2013, which indicated that the Veteran did not have characteristic prostrating attacks, as well as the December 2020, which indicated that the Veteran had characteristic prostrating attacks occurring less frequently than once in every two months. However, the symptoms described in both the October 2013 and December 2020 VA examinations suggest that the Veteran experienced headaches at least once a month, and that those headaches produce powerlessness or a lack of vitality, as the headaches cause throbbing head pain, nausea, and vomiting. The Board, however, finds that a rating in excess of 30 percent is not warranted because the weight of the competent and probative evidence is against finding that the Veteran’s headaches resulted in severe economic inadaptability. Although the Veteran reported that his headaches periodically prevent him from performing his job functions during flareups, the Veteran also indicated that he was not incapacitated for a single continuous period of time. 02/03/2021, Medical Treatment Record – Non-Government Facility, page 8. In summary, the Board finds that the weight of the competent and probative evidence is against finding that the Veteran’s headaches resulted in severe economic inadaptability. The Board considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991); however, the evidence does not show symptoms that could be separately rated higher under another diagnostic code. See 38 C.F.R. § 4.124a. Indeed, when a disorder is listed in the Rating Schedule, rating by analogy is not appropriate. Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015). The benefit of the doubt has been applied as applicable. 3. Entitlement to a rating in excess of 10 percent for a right knee disability. The Veteran contends that he is entitled to a rating in excess of 10 percent for a right knee disability, evaluated under Diagnostic Code 5260. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that 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). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). 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). The Veteran currently has a 10 percent disability rating for a right knee disability under Diagnostic Code 5260 (limited flexion). Disabilities of the knee are rated under Diagnostic Codes 5256 to 5263. 38 C.F.R. § 4.71a. Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5260, a 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion of the leg is limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A maximum rating of 50 percent is warranted for extension limited to 45 degrees. Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint warrants a 20 percent rating. Removal of symptomatic semilunar cartilage warrants a 10 percent rating under Diagnostic Code 5259. Separate ratings can be assigned for the above knee disabilities (Diagnostic Codes 5257, 5258, 5259, 5260, and 5261) when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, semilunar cartilage removal, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5259, 5262, 5263. As an initial matter, the Board notes that the evidence in this case does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, semilunar cartilage removal, or ankylosis. As such, those diagnostic codes are not for application. An October 2013 VA examination noted a diagnosis of right knee strain. The ROM testing revealed that the right knee had 135 degrees of flexion and 0 degrees of extension, with painful motion beginning at 135 degrees of flexion. Normal range of motion was from zero to 140 degrees. The Veteran was able to perform repetitive motion testing, which did not produce any additional limitation of motion. There was no ankylosis or subluxation, and no instability. The Veteran does not have a semilunar cartilage condition, and the semilunar cartilage has not been removed. 10/23/2013, C&P Exam, pages 8-14. A December 2020 VA examination conducted ROM testing and noted that the right knee had 100 degrees of flexion and 0 degrees of extension. The Veteran was able to perform repetitive motion testing, which did not produce any additional limitation of motion. Passive range of motion testing also did not produce any additional limitation of motion. Pain was noted when the right knee was used in non-weight bearing. The examination was not done immediately after repetitive use over time, which the Veteran reported would result in functional loss due to pain, fatigue, and weakness. The examiner estimated that range of motion would reflect 90 degrees of flexion and 0 degrees of extension after repetitive use over time. Additionally, the examiner estimated that range of motion would reflect 90 degrees of flexion and 0 degrees of extension during a flare-up. There was no ankylosis or subluxation, and no instability. The Veteran does not have a semilunar cartilage condition, and the semilunar cartilage has not been removed. 12/23/2020, C&P Exam. The Board finds the evidence does not support entitlement to a rating in excess of 10 percent for the limitation of flexion of the right knee. The Veteran currently has a 10 percent rating based on painful motion. To receive a 20 percent rating, his flexion must be limited to 30 degrees or his extension must be limited to 15 degrees. This is not shown in the examination during this period, even with consideration of possible additional limitation due to pain or weakness following repetitive use or on flareups. The most recent examination revealed limitation of flexion was to only 90 degrees and extension was only to 0 degrees following repetitive use or on flareups. Therefore, there is no basis for an increased rating for the right knee under the rating criteria for limitation of flexion or extension. 38 C.F.R. §§ 4.40, 4.45, 4.71a, Codes 5260, 5261. Finally, the Board has considered entitlement to increased or additional separate ratings for the right knee based on ankylosis, recurrent subluxation or lateral instability, or injury to the cartilage. As none of these things were demonstrated at the December 2020 VA examination or during any portion of the appeal period, there is no basis for such an award. 38 C.F.R. § 4.71a, Codes 5256, 5257, 5258, 5259. A. Zenzano Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.