Citation Nr: 21042572 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-09 347 DATE: July 13, 2021 ORDER A rating in excess of 10 percent for a lumbosacral strain prior to April 10, 2021, is denied. A rating in excess of 20 percent for a lumbosacral strain since April 10, 2021, is denied. A rating in excess of 10 percent for left knee chondromalacia, status/post cartilage restoration surgery is denied. FINDINGS OF FACT 1. The Veteran had active duty from April 1994 to April 2014. 2. Prior to April 10, 2021, a lumbar spine disability was manifested by subjective complaints of stiffness and soreness; objective findings included forward flexion to be, at worst, 90 degrees, the combined range of motion of the thoracolumbar spine to be, at worst, 180 degrees, and no muscle spasm, guarding, or intervertebral disc syndrome (IVDS). 3. Since April 10, 2021, a lumbar spine disability has been manifested by subjective complaints of pain that worsened with activity; objective findings include forward flexion to be, at worst, 55 degrees, and no ankylosis or IVDS. 4. A left knee disability has been manifested by subjective complaints of pain, stiffness, and swelling; objective findings include a semilunar cartilage condition with only frequent episodes of pain and effusion, flexion to be, at worst, 110 degrees, extension to be, at worst, 0 degrees, and no tibial or fibular impairment, shin splints, or medial tibial stress syndrome (MTSS). CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for lumbosacral strain prior to April 10, 2021, have not been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.385, 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, Diagnostic Code (DC) 5237 (2020). 2. The criteria for a rating in excess of 20 percent for lumbosacral strain since April 10, 2021, have not been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.385, 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, DC 5237 (2020). 3. The criteria for a rating in excess of 10 percent for left knee chondromalacia, status post cartilage restoration surgery (previously rated under DC 5003) have not been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.385, 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, DCs 5010-5260 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified before the undersigned Veterans Law Judge in October 2018. A copy of the transcript has been associated with the claims file. In May 2019, the Board denied compensable ratings for lumbar spine and left knee disabilities. The Veteran appealed to the Veterans Claims Court (Court). In April 2020, the Court Clerk vacated and remanded the claims based on a joint Motion for Remand. In October 2020, the Board remanded the claims in conjunction with the order specified by the Court. In an April 2020 supplemental statement of the case, the Agency of Original Jurisdiction (AOJ) assigned a 10 percent rating for a lumbar spine disability prior to April 2021, a 20 percent rating for a lumbar spine disability since April 2021, and a 10 percent rating for a left knee disability. These actions stem the basis for the current appeals. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. §§ 4.1. Separate diagnostic codes identify the various disabilities. Lumbar Spine Disability The Veteran's lumbar spine disability was rated at 10 percent under DC 5237 prior to April 10, 2021, and has been rated at 20 percent under DC 5237 since April 10, 2021. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Specifically, the amended regulations clarify that DC 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses. No other changes were made to the rating criteria for the spine. Under the applicable rating criteria, a 20 percent rating is warranted when the objective medical evidence shows: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the 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; or IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted when the objective medical evidence shows: forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes of IVDS having a total duration of at least four weeks but less than six weeks during the past 12 months. Turning to the medical evidence for the first period on appeal, the medical evidence does not show forward flexion to be between 30 and 60 degrees. Specifically, in an April 2015 VA examination, the Veteran complained of back stiffness and soreness. Upon examination, forward flexion was 90 degrees. Further, the combined range of motion of the thoracolumbar spine has not been shown to be 120 degrees or less. Specifically, in an April 2015 VA examination, forward flexion was 90 degrees, and extension, right lateral flexion, and left lateral flexion, were 30 degrees each. This equaled 180 degrees. In addition, there was no evidence of guarding, muscle spasm, or IVDS. Specifically, in an April 2015 VA examination, the examiner marked that the Veteran did not have guarding, muscle spasm, or IVDS. Based on the above, the medical evidence does not support a rating in excess of 10 percent for a lumbar spine disability prior to April 10, 2021. Specifically, the medical evidence showed forward flexion to be, at worst, 90 degrees, the combined range of motion of the thoracolumbar spine to be, at worst, 180 degrees, and no guarding, muscle spasm, or IVDS. While clinical records show the Veteran's complaints of and treatment for a lumbar spine disability, they do not contradict the above findings. Specifically, in a May 2016 clinical record, the clinician wrote that the Veteran had full range of motion (ROM) in all joints. Therefore, the medical evidence does not support a rating in excess of 10 percent for a lumbar spine disability prior to April 10, 2021. Turning to the medical evidence for the second period on appeal, the medical evidence does not show flexion to be 30 degrees or less. Specifically, in an April 2021 VA examination, the Veteran reported to the examiner that he had back tightness and soreness in the mid to upper back especially when lifting or turning since 1999. He had some readjustment and physical therapy. He complained of constant back pain that worsened with prolonged sitting or driving. Upon examination, initial forward flexion was 70 degrees. After three repetitions, forward flexion was 65 degrees. While the Veteran was not examined after repeated use, forward flexion after repeated use was estimated to be 60 degrees. Further, while the Veteran was not examined during a flareup, forward flexion was estimated to be 55 degrees. Next, there is no evidence of ankylosis or IVDS. Specifically, in an April 2021 VA examination, the Veteran did not have ankylosis or IVDS. Based on the above, the medical evidence does not support a rating in excess of 20 percent for a lumbar spine disability since April 10, 2021. In this regard, the medical evidence showed forward flexion to be, at worst, 55 degrees, and no ankylosis or IVDS. While clinical records show treatment for a lumbar spine disability, they do not contradict the above findings. Therefore, the medical evidence does not support a rating in excess of 20 percent for a lumbar spine disability since April 10, 2021. Left Knee Disability During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). 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 amended 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 pre-amended regulation 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. 38 U.S.C. § 5110. Therefore, the Board will consider the claim under the pre-amended criteria prior to February 7, 2021 and both the pre-amended and amended rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Veteran has been rated at 10 percent under DCs 5003-5260 for a left knee disability. Further, he has been rated separately at 10 percent under DC 5257 for left knee instability. Therefore, while DC 5257 will not be considered, the Board will consider all other appropriate diagnostic codes. Prior to the regulatory change, a 20 percent rating was warranted when the objective medical evidence showed: dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; flexion of the leg limited to 30 degrees; extension of the leg limited to 15 degrees; or malunion of the tibia or fibula with moderate knee or ankle disability. As of February 7, 2021, under the amended criteria, a 20 percent rating is warranted when the objective medical evidence shows: flexion of the leg limited to 30 degrees; extension of the leg limited to 15 degrees; or MTSS, or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. Turning to the medical evidence, while a semilunar cartilage condition has been shown, it has not caused frequent episodes of pain, "locking," and effusion into the joint. Specifically, in an April 2015 VA examination, the Veteran complained of soreness and stiffness occurring about four to five days a week. Upon examination, the examiner marked that the Veteran did not have a semilunar cartilage condition. However, in an April 2021 VA examination, he complained of achy, throbbing pain and occasional swelling. Upon examination, the examiner marked that the Veteran had a semilunar cartilage condition with frequent episodes of only pain and effusion but did not mark that the Veteran had frequent episodes of "locking." As to flexion, it has not been limited to 30 degrees. Specifically, in an April 2015 VA examination, flexion was 140 degrees. Further, in a May 2016 clinical record, the clinician wrote that the Veteran had full ROM in all joints. In addition, in an April 2021 VA examination, initial forward flexion was 115 degrees. After three repetitions, flexion was 120 degrees. While the Veteran was not examined after repeated use, flexion after repeated use was estimated to be 115 degrees. And, while the Veteran was not examined during a flareup, the estimated flexion after a flareup was 110 degrees. As to extension, it has not been limited to 15 degrees. Specifically, in April 2015 and April 2021 VA examinations, extension was limited to 0 degrees. Further, there is no evidence of tibial or fibular impairment, shin splints, or MTSS. Specifically, in April 2015 and April 2021 VA examinations, there was no evidence of tibial or fibular impairment, shin splints, or MTSS. Based on the above, the medical evidence does not support a rating in excess of 10 percent for a left knee disability. In this regard, the medical evidence showed a semilunar cartilage condition with only frequent episodes of pain and effusion, flexion to be, at worst, 110 degrees, extension to be, at worst, 0 degrees, and no evidence of tibial or fibular impairment, shin splints, or MTSS. While clinical records show treatment for a left knee disability, they do not contradict the above findings. Therefore, the medical evidence does not support a rating in excess of 10 percent for a left knee disability. The Board has also considered the Veteran's lay statements and testimony that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by these disabilities and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ragofsky, 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.