Citation Nr: 21029940
Decision Date: 05/17/21	Archive Date: 05/17/21

DOCKET NO. 16-63 337
DATE: May 17, 2021

ORDER

Prior to December 3, 2020, entitlement to a 40 percent rating, but no higher, for lumbar spine strain is granted, subject to the laws and regulations governing the payment of monetary benefits.

From December 3, 2020, entitlement to a rating in excess of 40 percent rating for lumbar spine strain is denied

Prior to December 10, 2016, entitlement to a 10 percent rating, but no higher, for left patellofemoral pain syndrome (PFPS) manifested by limitation of extension is granted, subject to the laws and regulations governing the payment of monetary benefits.

From December 10, 2016, entitlement to a rating in excess of 10 percent for a left PFPS manifested by limitation of extension is denied.

Prior to December 10, 2016, entitlement to a 10 percent rating, but no higher, for right PFPS manifested by limitation of extension is granted, subject to the laws and regulations governing the payment of monetary benefits.

From December 10, 2016, entitlement to a rating in excess of 10 percent for right PFPS manifested by limitation of extension is denied.

Prior to December 3, 2020, entitlement to a compensable rating for left PFPS manifested by limitation of flexion is denied.

From December 3, 2020, entitlement to a rating in excess of 10 percent for left PFPS manifested by limitation of flexion is denied.

Prior to December 3, 2020, entitlement to a compensable rating for right PFPS manifested by limitation of flexion is denied.

From December 3, 2020, entitlement to a rating in excess of 10 percent for right PFPS manifested by limitation of flexion is denied.

Entitlement to a separate 10 percent rating, but no higher, for a left knee disability manifested by recurrent subluxation is granted, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to a separate 10 percent rating, but no higher, for a right knee disability manifested by recurrent subluxation is granted, subject to the laws and regulations governing the payment of monetary benefits.

From October 9, 2015, entitlement to a 40 percent rating, but no higher, for radiculopathy of the sciatic nerve of the left lower extremity is granted, subject to the laws and regulations governing the payment of monetary benefits.

From December 3, 2020, entitlement to a 20 percent rating, but no higher, for radiculopathy of the sciatic nerve of the right lower extremity is granted, subject to the laws and regulations governing the payment of monetary benefits.

FINDINGS OF FACT

1. Throughout the period on appeal, the Veran's low back disability has been manifested by, at worst, flexion to 10 degrees with pain and a combined range of motion of 65 degrees with pain.

2. Throughout the period on appeal, the Veteran's bilateral knee disability has been manifested by, at worst, extension to 5 degrees with pain and greater limitation with flares, and slight recurrent subluxation.

3. Prior to December 3, 2020, the Veteran's bilateral knee disability has been manifested by limitation of flexion of 45 degrees or less.

4. From December 3, 2020, the Veteran's bilateral knee disability has not been manifested by limitation of flexion of 30 degrees or less.

5. From October 9, 2015, the Veteran's radiculopathy of the left lower extremity, has been manifested by at worst, moderately severe incomplete paralysis of the sciatic nerve without atrophy.

6. From December 3, 2020 but no earlier, symptoms of the Veteran's radiculopathy of the right lower extremity, has been manifested by, at worst, moderate incomplete paralysis of the sciatic nerve without atrophy.

CONCLUSIONS OF LAW

1. Prior to December 3, 2020, the criteria for a 40 percent rating, but no higher, for lumbar spine strain are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5237.

2. From December 3, 2020, the criteria for a rating in excess of 40 percent for lumbar spine strain  are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5237.

3. Prior to December 10, 2016, the criteria for a 10 percent rating, but no higher, for left PFPS manifested by limitation of extension are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5261.

4. Prior to December 10, 2016, the criteria for a 10 percent rating, but no higher, for a right PFPS manifested by limitation of extension are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5261.

5. From December 10, 2016, the criteria for a rating in excess of 10 percent for left PFPS manifested by limitation of extension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5261.

6. From December 10, 2016, the criteria for a rating in excess of 10 percent for right PFPS manifested by limitation of extension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5261.

7. Prior to December 3, 2020, the criteria for a compensable rating for left PFPS manifested by limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5260.

8. From December 3, 2020, the criteria for a rating in excess of 10 percent for left PFPS manifested by limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5260.

9. Prior to December 3, 2020, the criteria for a compensable rating for right PFPS manifested by limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5260.

10. From December 3, 2020, the criteria for a rating in excess of 10 percent for right PFPS manifested by limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5260.

11. The criteria for a separate 10 percent rating, but no higher, for a left knee disability with subluxation are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5257.

12. The criteria for a separate 10 percent rating, but no higher, for a right knee disability with subluxation are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5257.

13. From October 9, 2015, the criteria for a 40 percent rating, but no higher, for radiculopathy of the sciatic nerve of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Diagnostic Code 8520.

14. From December 3, 2020, the criteria for a 20 percent rating, but no higher, for radiculopathy of the sciatic nerve of the right lower extremity are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Marine Corps from October 2007 to August 2011.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in March 2015.

This matter was previously before the Board in August 2020, and was remanded to the AOJ for further development.

On remand, and in a December 2020 rating decision, the AOJ granted service connection for bilateral knee patellofemoral pain syndrome manifested by limitation of flexion with 10 percent ratings effective December 3, 2020; granted a 40 percent rating for lumbar strain with bilateral radiculopathy effective December 2, 2020; granted a 20 percent rating for sciatica of the left lower extremity effective December 3, 2020; and granted service connection for radiculopathy of the right lower extremity with a 10 percent rating effective December 3, 2020. Because the increase in evaluation of the Veteran's bilateral knee disability and lumbar spine disability does not represent the maximum evaluation available for these conditions, the Veteran's claims remain in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

Increased Rating

Disability ratings are based on 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id.

Although the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994), see also 38 C.F.R. § 4.1.

The Veteran seeks an increased rating for his low back disability and his bilateral knee disabilities, which are rated under the schedule of ratings for the musculoskeletal system under 38 C.F.R. § 4.71a.

During the course of this appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 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 ). These amendments revised certain diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Id.  Therefore, where applicable, the Board will consider the Veteran's claims under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize 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; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis).

Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, 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. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011).

In Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), the United States Court of Appeals for Veterans Claims (Court) clarified the additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination.

1. Entitlement to a rating in excess of 10 percent prior to December 10, 2016, in excess of 20 percent from December 10, 2016, and in excess of 40 percent from December 3, 2020, for service-connected low back disability

2. Entitlement to a rating in excess of 10 percent prior to December 3. 2020 and in excess of 20 percent from December 3, 2020 for service-connected sciatica of the left lower extremity

3. Entitlement to a rating in excess of 10 percent from December 3, 2020 for service-connected radiculopathy of the sciatic nerve of the right lower extremity

The Veteran has a current diagnosis of lumbosacral strain and lumbar disc herniation at L5-S1 with radiculopathy of the bilateral lower extremities. See February 2015 VA examination; October 2015, November 2015 and May 2016 VA treatment records; December 2020 VA examination. But see November 2018 VA examination (lumbar disc herniation without radiculopathy). Wise v. Shinseki, 26 Vet. App. 517, 531 (2014).

As discussed in greater detail below, resolving all reasonable doubt in favor of the Veteran, and in consideration of the objective and subjective medical evidence of record, the Board finds that a 40 percent rating, but no higher, is warranted for the Veteran's low back disability for the entire period on appeal; a 40 percent rating, but no higher, is warranted for the Veteran's radiculopathy of the sciatic nerve of the left lower extremity from October 9, 2015; and a 20 percent rating, but no higher, is warranted for the Veteran's radiculopathy of the sciatic nerve of the right lower extremity from December 3, 2020.

The Veteran's lumbar strain (previously rated as lumbar disc herniation at L5-S1) is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237; and his radiculopathy of the bilateral lower extremities is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Board will consider whether the Veteran is entitled to receive higher ratings for his low back disability under all applicable diagnostic codes.

Under the General Rating Formula for Diseases and Injuries of the Spine (General Formula), the spine is evaluated 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. 38 C.F.R. § 4.71a.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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. The normal ranges of motion for each component of spinal motion provided in note 2 of the General Formula are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a; See also 38 C.F.R. § 4.71a, Plate V.

Under the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding or localized tenderness not resulting in abnormal gait or 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, combined range of motion of the thoracolumbar spine not greater than 120 degrees, 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 of 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, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Formula.

Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one of more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Formula at Note 5.

A review of the record reveals that the VA examinations in February 2015, December 2016 and December 2020 satisfy the requirements of Sharp. However, while the most recent VA examination in December 2020 satisfies the requirements of Correia, the prior VA examinations in February 2015 and December 2016 do not satisfy the requirements of Correia. Nevertheless, the Board finds that a remand to satisfy the requirements of Correia is not warranted here, since remanding for another VA examination would not remedy the inadequacies of the evidence prior to December 2020, and there is adequate evidence of record to address the guidance in those cases. For these reasons, the Board finds that VA examinations are in substantial compliance with applicable law and regulations, and that there is no prejudice to the Veteran in proceeding to a decision without a remand under the circumstances.

VA examinations and VA treatment records indicate that the Veteran had limitation of forward flexion of the thoracolumbar spine no worse than 10 degrees with pain, and a combined range of motion no worse than 65 degrees with pain causing functional loss with repeated use over time and during flare-ups. See February 2015 VA examination (forward flexion to 85 degrees with 235 degrees combined range of motion); January 2016 and May 2016 VA treatment records (forward flexion to 45 degrees); December 2016 (forward flexion to 40 degrees with 175 degrees combined range of motion); December 2020 VA examination (forward flexion to 10 degrees with 65 degrees combined range of motion); January 2019 VA treatment record (forward flexion to 10 degrees). But see November 2018 VA examination (No range of motion testing due to pain).

The evidence of record also indicates that pain and weakness caused functional loss with repetitive use, with repeated use over time and during flare-ups. See December 2020 and November 2018 VA examinations. There was also objective evidence of mild pain on palpation over the left lumbar paraspinals. See February 2015 and December 2020 VA examinations; and January 2016 and May 2016 VA treatment records. In addition, there was objective evidence of guarding and muscle spasm of the low back which resulted in abnormal gait and spinal contour. See November 2018 and December 2020 VA examinations.

The Veteran's low back disability does not reflect findings of favorable or unfavorable ankylosis at any time during the pendency of the appeal. 38 C.F.R. § 4.71a, General Rating. The medical evidence of record clearly shows that the Veteran's spine is not ankylosed at any level. Although the Veteran's low back disability does manifest in some limitation of motion from pain and stiffness, it is not in a fixed position without motion at any degree or angle or analogous to such symptomatology, nor does the Veteran contend otherwise. 38 C.F.R. § 4.71a.

Resolving all reasonable doubt in favor of the Veteran, his low back disability warrants a 40 percent rating, but no higher, for the entire period on appeal under Diagnostic Code 5237 to include based upon the December 2020 VA examination, which revealed forward flexion less than 30 degrees without ankylosis. 38 C.F.R. § 4.71a, General Formula.

The Board notes that the evidence of record does not reflect a diagnosis of degenerative arthritis or complete traumatic paralysis; thus, Diagnostic Codes 5242 and 5244 are not for application.

The Board has also considered whether the Veteran's low back disability warrants a rating under Diagnostic Code 5243.

The revised rating criteria of Diagnostic Codes 5242-5243, as in effect from February 7, 2021, now provide that degenerative arthritis and degenerative disc disease other than IVDS are rated under Diagnostic Code 5242, while Diagnostic Code 5243 is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 is assigned for all other disc diagnoses. 85 Fed. Reg. 76,453 (November 30, 2020).

Under both the former and revised rating criteria, IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020); 85 Fed. Reg. 76,453 (November 30, 2020).

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a maximum 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243.

An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1.

A December 2016 VA examination reflects that the Veteran has been diagnosed with IVDS without incapacitating episodes. But see February 2015, November 2018 and December 2020 VA examinations. The Board acknowledges the statements of the Veteran and his spouse that his low back disability would leave him bedridden following exertion. See March 2020 Hearing testimony and March 2020 Lay statement. However, the evidence of record reflects that the Veteran has not had incapacitating episodes requiring bed rest prescribed by a physician, as required by Diagnostic Code 5243. 38 C.F.R. § 4.71a. Thus, the Board finds that the Veteran's low back disability does not warrant a rating under Diagnostic Code 5243 throughout the period on appeal.

As noted, the Veteran's radiculopathy of the bilateral lower extremities is currently rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520 and the General Rating Formula for Neurological Conditions and Convulsive Disorders.

Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve. 38 C.F.R. § 4.124a. A 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is assignable for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. A maximum rating of 80 percent is warranted for complete paralysis of the sciatic nerve; when the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

In rating peripheral nerve injuries and their residuals, attention must be given to the site and character of the injury, the relative impairment of motor function, trophic changes, and/or sensory disturbances. 38 C.F.R. § 4.120. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild degree, or at most, the moderate degree. Id. The terms "mild," "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. Combined nerve injuries should be rated by reference to the major involvement, or if enough in extent, VA should consider the applicability of the radicular group ratings. See 38 C.F.R. § 4.124a, Note following Diagnostic Code 8719.

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124.

Resolving all reasonable doubt in favor of the Veteran, the evidence of record reflects that the Veteran has had moderately severe radiculopathy of the sciatic nerve of the left lower extremity from October 9, 2015. See also November 2015 VA treatment record (severe lower back pain radiating down the left); January 2016 VA treatment record (mild radiculopathy of the sciatic nerve of the left lower extremity); and December 2020 VA examination (moderate radiculopathy of the left lower extremity). But see February 2015 and November 2018 VA examinations (no signs or symptoms of radiculopathy). Thus, the Board finds that a 40 percent rating, but no higher, is warranted for the Veteran's radiculopathy of the sciatic nerve of the left lower extremity from October 9, 2015. The evidence of record does not warrant a rating in excess of 40 percent as there is no evidence of muscle atrophy or complete paralysis of the sciatic nerve of the left lower extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

Resolving all reasonable doubt in favor of the Veteran, the evidence of record reflects that the Veteran has had moderate radiculopathy of the sciatic nerve of the right lower extremity from December 3, 2020. But see February 2015, December 2016, and November 2018 VA examinations; October 2015, November 2015 and May 2016 VA treatment records. Thus, the Board finds that a 20 percent rating, but no higher, is warranted for the Veteran's radiculopathy of the sciatic nerve of the right lower extremity from December 3, 2020. The evidence of record does not warrant a rating in excess of 20 percent as there is no evidence of moderately severe symptoms, muscle atrophy or complete paralysis of the sciatic nerve of the right lower extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

The Board has considered the lay testimony and statements of record regarding the severity of the Veteran's low back disability with radiculopathy of the bilateral lower extremities and has relied on these reports in determining the appropriate disability rating under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. The Veteran and his spouse are competent to report on factual matters of which they have firsthand knowledge and their statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Where the Veteran and his spouse have not discussed particular findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).

For the reasons set forth above, the Board finds that a 40 percent rating, but no higher, is warranted for the Veteran's low back disability characterized as lumbar strain for the entire period on appeal; a 40 percent rating, but no higher, is warranted for the Veteran's radiculopathy of the sciatic nerve of the left lower extremity from October 9, 2015; and a 20 percent rating, but no higher, is warranted for the Veteran's radiculopathy of the sciatic nerve of the right lower extremity from December 3, 2020. In reaching this decision, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

4. Entitlement to a compensable rating prior to December 10, 2016 and in excess of 10 percent from that date for left PFPS manifested by limitation of extension 

5. Entitlement to a compensable rating prior to December 10, 2016 and in excess of 10 percent from that date for right PFPS manifested by limitation of extension 

6. Entitlement to a rating in excess of 10 percent for left PFPS manifested by limitation of flexion

7. Entitlement to a rating in excess of 10 percent for right PFPS manifested by limitation of flexion

The Veteran has a current diagnosis of bilateral patellofemoral pain syndrome (PFPS) with subluxation from January 2015. See January 2015 VA treatment record, February 2015, December 2016 and December 2020 VA examinations.

As discussed in greater detail below and resolving all reasonable doubt in favor of the Veteran, and in consideration of the objective and subjective medical evidence of record, the Board finds that 10 percent ratings are warranted for the Veteran's bilateral PFPS manifested by limitation of extension throughout the appellate period; and separate 10 percent ratings are warranted for the Veteran's bilateral knee disability with slight subluxation throughout the appellate period. However, based on the evidence of record, for reasons set forth below, the Board finds that the Veteran's bilateral knee disability manifested by limitation of flexion does not warrant compensable ratings prior to December 3, 2020, and does not warrant ratings in excess of 10 percent from December 3, 2020.

The Veteran's bilateral PFPS is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. The Board will consider whether the Veteran is entitled to receive higher ratings for his knees under all applicable diagnostic codes.

Disabilities of the knee are rated under Diagnostic Codes 5256 to 5263. 38 C.F.R. § 4.71a.

Diagnostic Code 5260 provides that a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a.

Diagnostic Code 5261 provides that 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; and a 50 percent rating is warranted for extension limited to 50 degrees. 38 C.F.R. § 4.71a.

For comparison, normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II.

Under Diagnostic Code 5256, ankylosis of the knee in a favorable angle in full extension, or in slight flexion between 0 and 10 degrees warrants a 30 percent rating. Ankylosis of the knee in flexion between 10 and 20 degrees warrants a 40 percent rating. Ankylosis of the knee in flexion between 20 and 45 degrees warrants a 50 percent rating. Extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more warrants a 60 percent rating. 38 C.F.R. § 4.71a.

A review of the record reveals that, while the most recent VA examinations in December 2016 and December 2020 satisfy the requirements of Correia, the prior VA examination in February 2015 does not satisfy the requirements of Correia; and while the most recent VA examination in December 2020 satisfies the requirements of Sharp, the prior VA examinations in December 2016 and February 2015 do not satisfy the requirements of Sharp.

Nevertheless, the Board finds that a remand to satisfy the requirements of Correia and Sharp is not warranted here, since remanding for another VA examination would not remedy the inadequacies of the evidence prior to December 2020, and there is adequate evidence of record to address the guidance in those cases. For these reasons, the Board finds that VA examinations are in substantial compliance with applicable law and regulations, and that there is no prejudice to the Veteran in proceeding to a decision without a remand under the circumstances.

The evidence of record indicates that the Veteran's right knee had limitation of flexion no worse than 90 degrees with pain and extension no worse than 5 degrees with pain, and his left knee had limitation of flexion no worse than 85 degrees with and extension no worse than 5 degrees with pain throughout the period on appeal. See January 2015 VA treatment record (bilateral range of motion (ROM) 0 to 115 degrees with pain); February 2015 VA examination (right knee ROM 0 to 110 degrees without pain; left knee ROM 0 to 120 degrees without pain); December 2016 VA examination (right knee ROM 0 to 130 degrees with pain; left knee ROM 0 to 140 degrees with pain); December 2020 VA examination (right knee ROM 5 to 90 degrees with pain, left knee ROM 5 to 85 degrees with pain).

The December 2020 VA examination also indicated that pain and weakness caused functional loss with repeated use over time and during flare-ups. A January 2015 private treatment record revealed objective evidence of tenderness to palpation along the medial lateral joint line of the knees, bilateral crepitus, and bilateral patella grind.

Resolving all reasonable doubt in favor of the Veteran, his bilateral knee disability characterized as patellofemoral pain syndrome with limitation of extension warrants a rating of 10 percent, but no higher, throughout the appellate period under Diagnostic Code 5261 based upon the presence of functional impairment including as due to flare-ups of pain, pain on movement, and weakness and painful limited motion in the knees.

The evidence of record during this appeal period has reflected limited and painful, albeit not compensable, limitation of extension. The evidence of record does not reflect that the Veteran has been diagnosed as having degenerative arthritis in either knee, which has been substantiated by x-ray findings. See 38 C.F.R. §§ 4.40, 4.45; see also Mitchell, 25 Vet. App. at 42-43; DeLuca, 8 Vet. App. at 206-207. The Board notes that the Veteran's bilateral knee disability is productive of additional functional limitation beyond what is reflected in his range of motion measurements; including reports of pain, pain on movement, and weakness during flare-ups. Thus, resolving all reasonable doubt in favor of the Veteran, his limitation of extension of the knees more nearly approximates the criteria required for a 10 percent rating, but no higher, for his bilateral PFPS manifested by limitation of extension based on the presence of functional impairment including as due to flare-ups of pain, pain on movement, and weakness and painful limited motion in his knees from January 5, 2015. See 38 C.F.R. §§ 4.7, 4.40, 4.45; see also Mitchell, supra; DeLuca, supra.

Based on the evidence as outlined above, the Veteran's bilateral PFPS manifested by limitation of flexion does not warrant a compensable rating prior to December 3, 2020; and does not warrant a rating in excess of 10 percent thereafter under Diagnostic Code 5260, because the evidence of record does not reflect that the Veteran has had limitation of flexion of at least 45 degrees prior to December 3, 2020; and the evidence of record does not reflect that the Veteran has had limitation of flexion of at least 30 degrees from December 3, 2020. 

Ratings may also be assigned for impairment of the tibia or fibula, genu recurvatum, or a meniscal dysfunction of the knees. 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5263, 5256, 5258. However, the Board notes that the evidence in this case does not reflect and the Veteran does not allege that he has had a tibia or fibula impairment, genu recurvatum or a meniscus condition of the knees. As such, those diagnostic codes are not for application.

The Board has considered whether the Veteran is entitled to a higher rating under Diagnostic Code 5257, which provides rating for recurrent subluxation and lateral instability of the knee.

Prior to February 7, 2021, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively under Diagnostic Code 5257. 38 C.F.R. § 4.71a. The terms "slight," "moderate," and "severe" are not defined. 

Under the amended diagnostic code, a 10 percent rating is assigned where a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causes persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Alternatively, a 10 percent rating is assigned 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. 85 Fed. Reg. at 76463 . 

A 20 percent rating is assigned where: (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causes persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) an unrepaired or failed repair of a complete ligament tear causes persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. Alternatively, a 20 percent rating is assigned 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, cane, or walker. Id. 

A maximum 30 percent rating is assigned where an unrepaired or failed repair of a complete ligament tear causes persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. Alternatively, a 30 percent rating is assigned 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. Id. 

Resolving all reasonable doubt in favor of the Veteran, his bilateral knee disability with subluxation warrants separate 10 percent ratings, but no higher, for the entire period on appeal under Diagnostic Code 5257 based upon slight recurrent subluxation of the knees. The Board finds that a rating in excess of 10 percent is not warranted for the Veteran's bilateral knee disability with recurrent subluxation, at any point during the period on appeal under either version of the criteria for Diagnostic Code 5257. The evidence of record does not reflect findings of moderate or severe recurrent subluxation at any point during the period on appeal and does not reflect findings of patellofemoral syndrome with recurrent instability after surgical repair with a prescription for a brace, cane or walker, by a medical provider.

The Board has considered the lay testimony and statements of record regarding the severity of the Veteran's bilateral PFPS manifested by subluxation and has relied on these reports in determining the appropriate disability rating under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. Where the Veteran and his spouse have not discussed particular findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri, supra.

For the reasons set forth above, the Board finds that separate 10 percent ratings, but no higher, are warranted for the Veteran's bilateral PFPS manifested by limitation of extension throughout the period on appeal; and 10 percent ratings, but no higher, for bilateral knee PFPS manifested by slight recurrent subluxation. However, based on the evidence as outlined above, the Board finds that the Veteran's bilateral knee disability does not warrant ratings in excess of 10 percent for limitation of extension throughout the period on appeal; does not warrant compensable ratings for limitation of flexion prior to December 3, 2020 and does not warrant ratings in excess of 10 percent for limitation of flexion from December 3, 2020. In reaching this decision, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107(b); Gilbert, supra.

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Johnson

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.