Citation Nr: 21028779 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-42 239 DATE: May 12, 2021 ORDER Entitlement to a rating in excess of 20 percent for a back disability is denied. Entitlement to a rating in excess of 40 percent for a right knee disability based on limitation of motion is denied. Entitlement to a rating in excess of 40 percent for a left knee disability based on limitation of motion is denied. Entitlement to a rating in excess of 10 percent for left knee instability is denied. FINDINGS OF FACT 1. The Veteran's back disability has not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less or manifested by favorable ankylosis of the entire thoracolumbar spine. 2. The Veteran's right knee limitation of motion has not manifested with extension limited to 45 degrees. 3. The Veteran's left knee limitation of motion has not manifested with extension limited to 45 degrees. 4. The Veteran has not undergone surgery that involves the repair of one or more patellofemoral components that contribute to this underlying instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for a back disability have not been met. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5242). 2. The criteria for entitlement to a rating in excess of 40 percent for a right knee disability based on limitation of motion have not been met. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5003- 5261). 3. The criteria for entitlement to a rating in excess of 40 percent for a left knee disability based on limitation of motion have not been met. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5003- 5261). 4. The criteria for entitlement to a rating in excess of 10 percent for left knee instability have not been met. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from November 1981 to November 2001. In May 2019, the Veteran testified at a video hearing before the undersigned and a transcript of that hearing has been associated with the record. These matters were previously before the Board of Veterans' Appeals (Board) in October 2019 and were remanded for further development, which has been completed. It is valuable to note that the Veteran has already been found to be 100 percent disabled by VA. The Veteran has been in receipt of a schedular 100 percent combined disability rating since April 15, 2015. The Veteran has also been in receipt of a total disability rating based on individual unemployability (TDIU) since October 6, 2012. In this case, the Board is only dealing with the limited outstanding issues that it must address under the law. Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. 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. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (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; 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 criteria."). 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 1. Entitlement to a rating in excess of 20 percent for a back disability The Veteran contends that he is entitled to a higher rating because his back disability is worse than the assigned disability rating reflects. The Veteran's back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242 for degenerative disc disease of the lumbar spine. As of February 7, 2021, the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, was amended. Diagnostic Code 5242 has been amended to include degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5242). Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for 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. 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 such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's back disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and being unable to bend or squat. See November 2020 VA Examination. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The Veteran's initial ROM measurements were noted as abnormal, with forward flexion to 70 degrees. See id. Pain, fatigue, weakness, and lack of endurance was noted to limit functional ability with forward flexion to 60 degrees and extension to 10 degrees. An additional loss of function or range of motion after three repetitions was not found. As for flare-ups, ROM for forward flexion was measured to 55 degrees and extension to 5 degrees. Guarding or muscle spasm was noted on examination but did not result in abnormal gait or abnormal spinal contour. Additionally, there was no ankylosis of the spine. Regarding neurological impairment, the Veteran has already been granted service connection for left lower extremity radiculopathy and lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. In this regard, the Board must note that a 20 percent rating will cause the Veteran many problems. Accordingly, the Board finds that a disability rating in excess of 20 percent for a back disability is not warranted. The Board finds that the preponderance of the evidence is against the assignment of a higher rating. 2. Entitlement to a rating in excess of 40 percent for a right knee disability based on limitation of motion 3. Entitlement to a rating in excess of 40 percent for a left knee disability based on limitation of motion 4. Entitlement to a rating in excess of 10 percent for left knee instability The Veteran contends that he is entitled to a higher disability rating for his service-connected knee disabilities. In this particular case, the Veteran's knee disabilities are rated under Diagnostic Codes 5003-5261 for bilateral knee limitation of extension with osteoarthritis, previously evaluated as limitation of flexion. The Veteran is also rated under 5257 for left knee instability. As of February 7, 2021, the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, was amended. Diagnostic Code 5260 was not amended after February 7, 2021 and therefore a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension 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 50 percent rating is warranted for extension limited to 45 degrees. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5261). Diagnostic Code 5257 was amended to remove the language of "severe," "moderate," and "slight" when describing impairment of the knee for recurrent subluxation or lateral instability. A separate rating for patellar instability was also added. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Under Diagnostic Code 5257 and recurrent subluxation or lateral instability, a 10 percent rating is warranted 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. 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), walker) or bracing for ambulation. 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. Under Diagnostic Code 5257 and patellar instability, 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. 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. A 30 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 a brace and either a cane or a walker. Note (1) provides that the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon for patellar instability. Note (2) provides that 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). The Board finds the preponderance of the evidence is against a rating in excess of 40 percent for a bilateral knee disability based on limitation of motion and 10 percent for impairment of the left knee. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and being unable to bend or squat. See November 2020 VA Examination. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that it is difficult to get in and out of a truck and difficult to drive due to pain, would not result in limitation of motion more nearly approximating extension limited to 45 degrees. The Veteran's initial ROM for the right knee was flexion to 115 degrees and extension to 25. Id. As for the left knee, the initial ROM was noted 125 for flexion and 25 degrees for extension. Id. No additional loss of function or ROM was reported after three repetitions. Pain and weakness contribute to functional loss with ROM of the right knee with flexion to 115 degrees and extension to 30 degrees. The left knee also had pain and weakness that contributed to functional loss with ROM of flexion to 120 degrees and extension to 30 degrees. Pain and lack of endurance also limits functional ability during a flare-up for the left knee with ROM for flexion to 115 degrees and extension to 35 degrees. A history of arthroscopic surgery, slight recurrent subluxation, and mild instability was noted for the left knee. Furthermore, left knee joint effusion and spondylosis around the patella was also noted. Ankylosis was not shown in either knee. The Veteran occasionally uses a cane for bilateral osteoarthritis in the knees. (Continued on the next page) The Veteran's diagnosed left knee condition involves the patellofemoral complex with mild instability in the knee joint. See id. However, the Veteran has not undergone surgery that involves the repair of one or more patellofemoral components that contribute to this underlying instability for his left knee to warrant a higher disability rating, despite having a cane for ambulation. See id. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for a bilateral knee disability based on limitation of motion and 10 percent for impairment of the left knee. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.