Citation Nr: 22013471
Decision Date: 03/09/22	Archive Date: 03/09/22

DOCKET NO. 20-08 315
DATE: March 9, 2022

ORDER

Whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss is denied.

Entitlement to an evaluation in excess of 20 percent for a right shoulder disability for the period prior to January 2, 2020, is denied.

Entitlement to an evaluation of 30 percent, but not higher, for limitation of motion associated with a right shoulder disability for the period from January 2, 2020, is granted.

Entitlement to an evaluation in excess of 10 percent for left knee patellofemoral syndrome prior to April 2, 2021, is denied.

Entitlement to an evaluation in excess of 10 percent for right knee extension limitation for the period prior to January 31, 2021, and in excess of 50 percent thereafter is denied.

Entitlement to an evaluation in excess of 10 percent for right knee instability for the period prior to January 31, 2021, and in excess of 30 percent thereafter is denied.

Entitlement to an evaluation in excess of 20 percent for right knee semilunar cartilage dislocation is denied.

Entitlement to an evaluation of 50 percent for left knee limitation of extension from April 2, 2021, is granted.

Entitlement to an evaluation of 20 percent rating for left knee instability from April 2, 2021, is granted.

Entitlement to an evaluation in excess of 10 percent for a lumbar spine disability for the period prior to January 2, 2020, and in excess of 20 percent thereafter is denied.

REMANDED

Entitlement to service connection for a stomach disability, to include acid reflux is remanded.

Entitlement to service connection for a headache disability is remanded.

Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded.

FINDINGS OF FACT

1. The evidence received since the July 2011 rating decision concerning bilateral hearing loss is either cumulative or redundant, does not relate to unestablished facts necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of entitlement to service.

2. The Veteran's right shoulder disability is productive of the functional equivalent of motion limited to shoulder level, but not midway between the side and shoulder level or to 25 degrees from the side for the period prior to January 2, 2020.

3. The Veteran's right shoulder disability is productive of the functional equivalent of motion limited to midway between the side and shoulder level, but not to 25 degrees from the side, for the period from January 2, 2020.

4. The Veteran's left knee disability for the period prior to April 2, 2021, is manifest by painful motion. 

5. For the period prior to January 31, 2021, the Veteran's right knee extension was manifest by painful motion, and was limited to 80 degrees thereafter.

6. For the period prior to January 31, 2021, the Veteran's right knee produced slight instability, and recurrent instability after surgical repair that requires a prescription for a brace thereafter.

7. Throughout the entire appellate period, the Veteran's right knee was manifest with a dislocated semilunar cartilage with frequent episodes of "locking", pain and effusion in the joint.

8. For the period from April 2, 2021, the Veteran's left knee extension was limited to 50 degrees.

9. For the period from April 2, 2021, the Veteran's left knee was manifest in a strain with persistent instability; for which he was prescribed a knee brace.

10. For the appeal period prior to January 2, 2020, the Veteran's lumbar spine disability manifested by forward flexion greater than 60 degrees and a combined range of motion greater than 120 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, or intervertebral disc syndrome (IVDS); and by forward flexion greater than 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-up without ankylosis, or IVDS thereafter.

CONCLUSIONS OF LAW

1. As new and material evidence has not been received, the claim for service connection for bilateral hearing loss is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021).

2.  The criteria for an initial evaluation in excess of 20 percent for limitation of motion associated with a right shoulder disability for the period prior to January 2, 2020, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2021). 

3. The criteria for an initial evaluation of 30 percent, but not in excess thereof, for limitation of motion associated with a right shoulder disability for the period from January 2, 2020, are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2021). 

4. The criteria for a rating in excess of 10 percent for left knee patellofemoral syndrome prior to April 2, 2021, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.45, 4.71a, DCs 5010, 5261 (2021).

5. The criteria for a rating in excess of 10 percent for right knee patellofemoral syndrome prior to January 31, 2021, and in excess of 50 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.45, 4.71a, DCs 5010, 5261 (2021).

6. The criteria for an evaluation of 10 percent prior to January 31, 2021, for right knee instability, and of 30 percent, but no higher, thereafter have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 5257 (2021).

7. The criteria for a rating in excess of 20 percent for right knee dislocated semilunar cartilage with periods of locking, pain, and effusion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258 (2021).

8. The criteria for an evaluation of 50 percent for left knee limitation of extension from April 2, 2021, have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.45, 4.71a, DCs 5010, 5261 (2021).

9. The criteria for a separate rating of 20 percent for left knee instability for the period from April 2, 2021, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257(a) (2021).

10. The criteria for an increased rating for a lumbar spine disability, rated as 10 percent disabling prior to January 2, 2020, and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.102, 4.14.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237-5232 (2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 2000 to October 2004 and from July 2007 to July 2009.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2018 and January 2020 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

The Board notes that the issue of entitlement to an increased rating for right knee patellofemoral syndrome, addressed in the January 2020 Statement of the Case (SOC) is still in legacy.  In order to opt-in to AMA from a SOC or SSOC, the Veteran must submit a higher-level review, supplemental claim, or Form 10182 within 60 days of an AMA-eligible SOC or SSOC or within one year of an AMA-eligible rating decision (after February 19, 2019, or RAMP).  Here, the Veteran submitted a VA Form 20-0995 Supplemental Claim on January 31, 2021 outside of the 60-day period for the January 17, 2020, SOC, and the August 2018 rating decision that addressed the Veteran's February 2017 increased rating claim for right knee patellofemoral syndrome is not AMA eligible.  As a result, the claim for an increased rating for right knee patellofemoral syndrome in legacy remains in legacy, as it was not properly opted-in to AMA.

The Board also notes that the Veteran's January 31, 2021, supplemental claim was filed within one year of the January 2020 rating decision that granted a separate evaluation for instability of the right knee. 

The Board finds that the separate right knee evaluations granted in the January 2020 rating decision are part and parcel of the legacy increased rating claim for the right knee. As such, this and subsequent rating decisions issued by the RO are not initial rating decisions for purposes of AMA. See 38 C.F.R. § 19.2.

1. Whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss

The Veteran contends that his hearing loss is due to service. He reported exposure to tanks, mortars and .50 cal weapons. See March 2011 VA examination.

Impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993).

Service connection for bilateral hearing loss was denied in a July 2011 AOJ decision. The reason for the AOJ denial was that the Veteran did not have a diagnosis of hearing loss which met the VA criteria to be considered a disability. See 38 C.F.R. § 3.385. At the time of this rating decision, the record pertinently contained a VA examination dated in March 2011. The examiner conducted audiometric testing, and the Veteran did not meet the VA hearing loss criteria.

Evidence associated with the claims file since the July 2011 AOJ decision includes additional lay statements and VA medical records. However, review of the medical record contains no audiometric findings which show hearing loss disability as defined by regulation. 38 C.F.R. § 3.385.

The VA medical records added to the claims file are new, but they are not material, as none of the treatment providers give any audiometric findings which meet the regulatory criteria for a hearing loss disability for VA purposes.

The Board finds the evidence added to the claims file since the July 2011 AOJ decision is cumulative or redundant of the evidence of record and does not raise a reasonable possibility of substantiating the claim. The evidence added to the record does not include any new competent and credible evidence which suggests that the Veteran has audiometric findings that meet the regulatory criteria for a hearing loss disability for VA purposes, which was the basis for the prior determination. The Veteran's lay statements are redundant of the evidence previously considered, and the medical reports do not contain any audiometric findings which meet the regulatory criteria.

As the information provided in support of the application to reopen the claim for service connection for a bilateral hearing loss disability does not include new and material evidence, the appeal remains denied and the claim is not reopened.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent 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. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 ; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 ; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 ; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.

Governing law provides that the evaluation of the same manifestation under different diagnoses, known as pyramiding, is to be avoided. See Esteban v. Brown, 6 Vet. App. 259 (1994); see also 38 C.F.R. § 4.14. In Esteban, the Court found that when a Veteran has separate and distinct manifestations from the same injury he should be compensated under different Diagnostic Codes.

When it is not possible to separate the effects of the service-connected disability from a non-service-connected disability, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).

2. Entitlement to an evaluation in excess of 20 percent for a right shoulder disability

The Veteran contends that he is entitled to an evaluation in excess of 20 percent for his right shoulder disability. See February 2017 claim.

The Veteran's right shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5201, for limitation of motion of the arm.  Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity.  Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity.  Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint.  38 C.F.R. § 4.71a, Diagnostic Code 5201.  

Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013).

Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27.

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Codes 5003, 5010, and 5201, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic code only; however, for the period beginning February 7, 2021, the Board will consider both the old and amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran.

Prior to February 7, 2021, Diagnostic Code 5010 provided that the rating for arthritis due to trauma was determined under the criteria pertaining to degenerative arthritis, Diagnostic Code 5003, which rated based on limited motion. 38 C.F.R. § 4.71a. Since February 7, 2021, Diagnostic Code 5010 provides that post-traumatic arthritis shall be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Since the old and new Diagnostic Code 5010 indicate that the joint is rated based on limitation of motion, for the purposes of this case, the amendment to Diagnostic Code 5010 does not affect the Veteran's claim. 

Effective February 7, 2021, VA amended Diagnostic Code 5201 to reflect that limitation of motion may be shown by flexion and/or abduction and clarified the degrees of limitation of motion that correspond to each rating.  Now, limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor extremity.  Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity.  Flexion and/or abduction limited to 25 degrees from the side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint.

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."  

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.

The Veteran was afforded a VA shoulder examination in May 2018. He was confirmed to have a diagnosis of right shoulder degenerative joint disease with rotator cuff tears and impingement. The Veteran reported current pain in both shoulders, numbness, and tingling. He denied having flare ups. Functional loss was reported as inability to lift over 50 pounds or perform any overhead motion. Initial range of motion measurements showed right flexion limited to 140 degrees; abduction limited to 130 degrees; and full external and internal rotation. Pain was noted to be productive of functional loss, and was noted to be present on flexion and abduction. No additional limitations were noted after observed repetitive use. Estimations for limitations after repetitive use over time were noted to be impossible to determine given a lack of conceptual or empirical basis for making such a determination without observation. Muscle strength testing was normal. There was no ankylosis. A right shoulder rotator cuff condition was suspected, given positive Hawkin's impingement; empty can; external rotation/infraspinatus strength; and lift-off subscapularis tests. Shoulder instability, dislocation or labral pathology was suspected. There was a reported history of mechanical symptoms. There was also a reported history of frequent recurrent dislocation of the glenohumeral joint. No AC join or sternoclavicular joint conditions were suspected. No humerus joint conditions were noted. The veteran was noted to have undergone arthroscopy of the right shoulder with posterior Bakart reconstruction and rotator interval closure. No functional employment impact was noted. 

The Veteran was afforded a VA shoulder examination in January 2020. He was confirmed to have a diagnosis of right shoulder degenerative joint disease with rotator cuff tears and impingement. The Veteran reported current pain in both shoulders, numbness and tingling. He denied having flare ups. Functional loss was reported as inability to lift anything with the right arm or perform any overhead motion. Initial range of motion measurements showed right flexion limited to 90 degrees; abduction limited to 80 degrees; external rotation was limited to 40 degrees; and internal rotation was limited to 80 degrees. Pain was noted to be productive of functional loss, and was noted to be present on flexion and abduction. On observed repetitive use, range of motion measurements showed right flexion limited to 80 degrees; abduction limited to 60 degrees; external rotation was limited to 35 degrees; and internal rotation was limited to 75 degrees. For repetitive use over time, these values remained unchanged. Muscle strength testing was reduced, reflective of active movement against some resistance. There was no muscle atrophy or ankylosis. A right shoulder rotator cuff condition was suspected, given positive Hawkin's impingement; empty can; external rotation/infraspinatus strength; and lift-off subscapularis tests. Shoulder instability, dislocation or labral pathology was suspected. There was a reported history of mechanical symptoms. There was also a reported history of frequent recurrent dislocation of the glenohumeral joint, as well as guarding of movement only at the shoulder level. Crank apprehension and relocation test was positive on the right. No clavicle, scapula, AC joint or sternoclavicular joint conditions were suspected. No humerus joint conditions were noted. The veteran was noted to have undergone arthroscopy of the right shoulder with posterior Bakart reconstruction and rotator interval closure. Functional impact was noted to include inability to perform overhead activities, and to avoid lifting anything with the right arm. 

The Board finds that the evidence of record persuasively weighs against a rating in excess of 20 percent for a right shoulder disability under DC 5201 for limitation of motion for the period prior to January 2, 2020.  The evidence of record shows that the Veteran is right-handed. See January 2020 VA examination.  The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, repetitive use, and pain during repetitive use over time.  However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he is unable to lift heavy items or perform functions overhead would not result in symptoms more nearly approximating limitation of motion of the arm midway between side and shoulder level of the major extremity or limitation of motion of the arm to 25 degrees from the side of the major or minor extremity. In this regard, prior to January 2, 2020, the Veteran's right shoulder flexion was at worse limited to 140 degrees and abduction was at worse limited to 130 degrees, including after observed repetitive use. See May 2018 VA examination. Furthermore, the Veteran's medical records, including VA treatment records during this period, do not document flexion or abduction limited to 45 degrees or less. 

Nonetheless, for the period from January 2, 2020, the Board finds that the evidence of record persuasively weighs in favor of a rating of 30 percent, but no more, for a right shoulder disability under DC 5201 for limitation of motion. In this regard, throughout the entire appellate period, the Veteran's right shoulder flexion was at worse limited to 80 degrees and abduction was at worse limited to 60 degrees both after observed repetitive use and after repetitive use over time. See January 2020 VA examination. Furthermore, the VA examiner indicated that the Veteran is unable to perform any overhead activities or lift significant weight with his right arm. Such a rating is warranted for the functional equivalent of motion limited to midway between the side and shoulder level. Notably, prior to February 2021 the criteria did not use a numerical degree, nor did it say "at least" or offer a range. The January 2020 VA examiner estimated that abduction was limited to 60 degrees after repetitive use over time. Such a measurement is closer to midway between the shoulder and side than it is to shoulder level. While earlier VA examinations do not show motion limited to such a severity, none measured his limitation of motion after repetitive use over time. Thus, affording the Veteran all benefit of the doubt, the Board finds that a 30 percent rating is warranted for the entirety of the appeal period. A higher rating is available for motion limited to 25 degrees from the side or the functional equivalent thereof, but the evidence weighs against such severe symptoms. At no time has any examiner or treatment provider measured flexion or abduction less than 80 degrees, nor have they estimated a functional equivalence of less than 60 degrees. For these reasons, the Board finds that a 30 percent rating, but no higher, is warranted for limitation of motion due to the Veteran's right shoulder disability.

The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating.  However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code.  See 38 C.F.R. § 4.71a.  Furthermore, the Veteran's medical records, including VA examinations in May 2018 and in January 2020 specifically indicate that the Veteran does not have right shoulder ankylosis, humerus, clavicle or scapula impairment. Therefore, diagnostic codes 5200, 5202 and 5203 are not for application.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a rating in excess of 20 percent for a right shoulder disability for the period prior to January 2, 2020; and weighs in favor of a rating of 30 percent, but no more, for the period thereafter. The benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

3. Entitlement to an evaluation in excess of 10 percent for left knee patellofemoral syndrome

4. Entitlement to an evaluation in excess of 10 percent for right knee extension limitation for the period prior to January 31, 2021, and in excess of 50 percent thereafter

5. Entitlement to an evaluation in excess of 10 percent for right knee instability for the period prior to January 31, 2021, and in excess of 30 percent thereafter

6. Entitlement to an evaluation in excess of 20 percent for right knee semilunar cartilage dislocation

The Veteran contends that he is entitled to a higher rating for his bilateral knee disabilities.

The Veteran's left knee patellofemoral syndrome is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5261, for limitation of extension of the leg. The Veteran's right knee degenerative arthritis with tenosynovitis is also rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5261, for the period prior to January 31, 2021, and as 50 percent disabling thereafter. The Veteran is further assigned separate right knee ratings under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5257 for instability, evaluated as 10 percent disabling prior to January 31, 2021, and in excess of 30 percent thereafter; and under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5258 for semilunar cartilage dislocation evaluated as 20 percent disabling from January 31, 2021.

In this case, the Veteran seeks increased ratings for degenerative joint disease of both knees, which is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260, for traumatic arthritis rated as limitation of flexion, and under Diagnostic Code 5010-5261, for traumatic arthritis rated as limitation of extension. The Veteran's knees are both rated 20 percent disabling based on limitation of flexion and 10 percent disabling for limitation of extension.

Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27.

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Codes 5003, 5010, and 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic code only; however, for the period beginning February 7, 2021, the Board will consider both the old and amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran.

Prior to February 7, 2021, Diagnostic Code 5010 provided that the rating for arthritis due to trauma was determined under the criteria pertaining to degenerative arthritis, Diagnostic Code 5003, which rated based on limited motion. 38 C.F.R. § 4.71a. Since February 7, 2021, Diagnostic Code 5010 provides that post-traumatic arthritis shall be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Since the old and new Diagnostic Code 5010 indicate that the joint is rated based on limitation of motion, for the purposes of this case, the amendment to Diagnostic Code 5010 does not affect the Veteran's claim. 

When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for x-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under 38 C.F.R. § 4.59, painful motion is an important factor of disability from arthritis and painful joints are entitled to at least the minimum compensable rating for the joint.

Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260.

Under Diagnostic Code 5261, 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.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking, pain", and effusion into the joint.  38 C.F.R. § 4.71a, Diagnostic Code 5258.

As the Veteran is in receipt of the highest schedular rating for dislocation of semilunar cartilage, there is no basis to award a higher evaluation.

Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability.  A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability.  A 30 percent rating is warranted for severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257.

According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount.  "Moderate" means limited in scope or effect.  "Severe" means very painful or harmful or of a great degree.

Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code.  See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018).

Effective February 7, 2021, DCs 5261 and 5258 were unchanged. However, DC 5257 was changed.  The amended Diagnostic Code 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability.

For recurrent subluxation or instability, a 10 percent rating is warranted for 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 maximum 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.

For 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 maximum 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, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.  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 a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).

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.

The Veteran filed a claim for an increased rating of his knee disabilities which was received on February 21, 2017. 

The Veteran was afforded a VA knee examination in May 2018. The Veteran was confirmed to have right knee patellofemoral syndrome and a left knee condition. The Veteran reported bilateral knee pain, and that both knees give out frequently. He denied having flare ups. However, he reported functional loss, including being unable to run, and is limited to 45 minutes of standing before requiring rest. Physical examination included range of motion measurements, which reflected bilateral knee flexion limited to 120 degrees, and normal extension bilaterally. Pain was noted bilaterally on flexion, and though said pain was assessed not to result in functional loss, it did result in decreased range of motion. There was neither evidence of pain with weight bearing nor objective evidence of crepitus. After observed repetitive use, there was no additional loss of function or motion bilaterally. No additional factors were identified as contributing to the Veteran's disability. Muscle strength was normal bilaterally. There was no muscle atrophy. The Veteran did not have ankylosis. While no history of recurrent subluxation or effusion was noted, a history of slight lateral instability bilaterally was noted. Nonetheless, joint stability testing showed normal findings bilaterally. For both knees, no recurrent patellar dislocation, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, and no tibial or fibular impairment were noted. While the Veteran's left knee had no current semilunar cartilage conditions or symptoms, the Veteran was noted to have a right knee meniscal tear and frequent episodes of joint pain. In this regard, the examiner noted frequent pain and instability in the right knee. The Veteran was noted to make occasional use of a brace. Diagnostic testing showed no arthritis. Finally, the examiner assessed that the Veteran's knee disabilities were not productive of occupational impairment.

The Veteran was afforded another VA knee examination in January 2020. The Veteran was confirmed to have right knee meniscal tear, right knee instability, right knee patellofemoral syndrome, left knee patellofemoral syndrome and bilateral knee arthritis. The Veteran reported bilateral knee pain and instability in the right knee. He denied having flare ups. However, he reported functional loss, including being unable to run, kneel or go up and down stairs, and being limited to 30 minutes of standing before requiring rest. Physical examination included range of motion measurements, which reflected bilateral knee flexion limited to 120 degrees, and normal extension bilaterally. Pain was noted bilaterally on flexion and was assessed to result in functional loss including decreased ability to squat, as well as decreased range of motion. There was pain both on flexion and extension, as well as with weight bearing. There was objective evidence of crepitus bilaterally. After observed repetitive use, there was additional loss of motion bilaterally. Specifically, right knee flexion was limited to 110 degrees and left knee flexion was limited to 115 degrees. Extension was unchanged bilaterally. Pain was identified as the factor productive of this additional functional loss. The examiner assessed that the same additional limitations of the knee would ensue after repetitive use over time. Instability of station was noted as an additional contributing factor for his right knee disability, increasing feeling of the knee giving out. Muscle strength was slightly reduced bilaterally, with active movement against some resistance. There was no muscle atrophy. The Veteran did not have ankylosis. While no history of recurrent subluxation or effusion was noted, a history of slight lateral instability bilaterally was noted for the right knee. Joint stability testing showed normal findings for the left knee, but medial and lateral right knee instability of 0-5 mm on the right. For both knees, no recurrent patellar dislocation, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, and no tibial or fibular impairment were noted. While the Veteran's left knee had no current semilunar cartilage conditions or symptoms, the Veteran was noted to have a right knee meniscal tear and frequent episodes of joint pain. In this regard, the examiner noted pain and instability in the right knee after a meniscal tear. The Veteran was noted to make occasional use of a brace. Diagnostic testing showed bilateral knee arthritis. Finally, the examiner assessed that the Veteran's knee disabilities are productive of occupational impairment, including difficulty walking and standing for prolonged periods and distances, inability to kneel, use stairs or run, as well as difficulty squatting.

The Veteran was afforded another VA knee examination in February 2021. The Veteran was confirmed to have right knee meniscal tear with instability. The Veteran reported constant right knee pain, requiring use of pain medications and a brace. He reported flare ups of the right knee, precipitated by weather changes. Functional loss was also reported including occasional difficulty with stairs. A history of instability or recurrent subluxation was reported, including that the Veteran feels wobbly and his knee buckles sideways. A history of frequent effusion was also reported on the right knee at random. Physical examination included range of motion measurements, which reflected bilateral knee flexion limited to 120 degrees, and normal extension bilaterally. Pain was noted on the right knee, and was assessed to result in functional loss including significant pain with motion. There was objective evidence of crepitus on the right knee, but not the left. After observed repetitive use, there was additional loss of motion on the right knee only. Specifically, right knee flexion was limited to 115 degrees. Extension was unchanged. Pain and fatigability were identified as the factors productive of this additional functional loss on the right. The examiner assessed that the same additional limitations of the knee would ensue after repetitive use over time. There was no muscle atrophy. The Veteran did not have ankylosis. Joint stability testing showed normal findings for both knees. Also, for both knees, no recurrent patellar dislocation, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, and no tibial or fibular impairment were noted. While the Veteran's left knee had no current semilunar cartilage conditions or symptoms, the Veteran was noted to have a right knee meniscal tear. In this regard, the examiner noted the presence of pain with motion. The Veteran was noted not to have undergone any surgery. He was noted to make regular use of a brace. Finally, the examiner assessed that the Veteran's knee disabilities are productive of occupational impairment, including difficulty with running, and being limited to occasional jumping, squatting, and kneeling.

Finally, the Veteran was afforded another VA knee examination in April 2021. The Veteran was confirmed to have a bilateral knee strain, right knee meniscal tear, bilateral knee instability, right knee degenerative arthritis and right knee tendinopathy. The Veteran reported much more trouble in the right knee in terms of instability, though both knees are affected, including swelling and hypermobility. The Veteran further reported symptoms of pain, which he tries to alleviate with physical therapy, braces, pain killers and anti-inflammatories. He reported severe flare ups of both knees, precipitated by weather changes and certain movement, lasting up to 48 hours. He also reported functional loss, including being unable to perform any activities due to pain, swelling and instability and being limited in terms of motion. A history of instability or recurrent subluxation was reported. A history of frequent effusion was also reported. Physical examination included range of motion measurements, which reflected right knee flexion limited to 85 degrees; left knee flexion limited to 110 degrees; right knee extension limited to 50 degrees; and left knee extension limited to 10 degrees. There was objective evidence of crepitus on the left knee, but not the right. After observed repetitive use, there was no additional loss of motion bilaterally. The examiner assessed that after repetitive use over time, the Veteran's right knee flexion would be limited to 90 degrees; left knee flexion would be limited to 100 degrees; right knee extension would be limited to 75 degrees; and left knee extension would be limited to 25 degrees. The examiner assessed that on flare up, the Veteran's right knee flexion would be limited to 90 degrees; left knee flexion would be limited to 100 degrees; right knee extension would be limited to 80 degrees; and left knee extension would be limited to 50 degrees. There was no muscle atrophy. The Veteran did not have ankylosis. Recurrent subluxation or persistent instability was noted bilaterally. A partial ligament tear was also noted on the right knee, without repair. There was no recurrent patellar instability bilaterally. For both knees, no recurrent patellar dislocation, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, and no tibial or fibular impairment were noted. While the Veteran's left knee had no current semilunar cartilage conditions or symptoms, the Veteran was noted to have a right knee meniscal tear and frequent episodes of joint pain, joint locking, and joint effusion. In this regard, the examiner noted chronic joint effusion. The Veteran was noted to make constant use of a brace. Finally, the examiner assessed that the Veteran's knee disabilities are productive of occupational impairment, including inability to run, nail, climb ladders, and restrictions in walking, standing, and sitting. 

The Board further notes that clarification was sought as to the Veteran's knee diagnoses, and a May 2021 VA addendum opinion concluded that the Veteran's right knee degenerative arthritis and right knee tenosynovitis are at least as likely as not a progression of the service connected right knee meniscal tear with instability; and further, that the Veteran's right knee strain is at least as likely as not a separate and distinct condition from the service connected right knee meniscal tear with instability.

There was no finding of ankylosis, so a rating under DC 5256 is not warranted.  As flexion has not been limited to any less than 90 degrees throughout the entire appellate period, including on flare up and after repeated use over time, a noncompensable rating based on limitation of flexion is not warranted for either knee under DC 5260. 38 C.F.R. § 4.71a. Furthermore, neither DC 5262 nor DC 5263 are for application as there are no findings of record reflective of tibia and fibula impairment or genu recurvatum. Finally, the Board notes that DC 5259 for removal of semilunar cartilage is also not for application, as the Veteran is not shown to have undergone any surgical procedure, including for removal of semilunar cartilage.

The Board first finds that a rating in excess of 20 percent for right knee semilunar cartilage dislocation, evaluated under DCs 5010-5258 from January 31, 2021, is not warranted. In this regard, the record reflects that the Veteran was noted to have a diagnosis of right knee meniscal tear with frequent episodes of joint "locking", frequent episodes of joint pain and frequent episodes of joint effusion. See April 2021 VA knee examination. As previously noted, the Veteran is in receipt of the highest schedular rating for dislocation of semilunar cartilage. As such, there is no basis to award a higher evaluation.

The Board acknowledges that the Veteran's right knee semilunar cartilage condition was diagnosed during the entire appellate period prior January 31, 2021. However, while symptoms including frequent episodes of joint pain were noted on both the May 2018 and January 2020 VA examinations, the Veteran specifically denied a history of effusions, and clinical examination  including review of medical records  was against a finding of frequent episodes of joint locking and effusion. Therefore, a separate rating during the appellate period prior to January 31, 2021, is not warranted.

The Board further notes that review of the Veteran's medical record does not reflect complaint, treatment, or diagnosis of a left knee meniscal condition. Therefore, DC 5258 is not for application with regard to the Veteran's left knee. 

The Board reiterates that for the period prior to January 31, 2021, the Veteran's bilateral knee disability is evaluated as 10 percent disabling under DCs 5010-5261 for limitation of extension. 

During this period, the Veteran's knees do not reflect flexion limited to 45 degrees or extension limited to 10 degrees to support even a 10 percent rating under Diagnostic Codes 5260 or 5261. Rather, at worse, the Veteran at worse exhibited right knee flexion to 110 degrees and left knee flexion to 115 degrees during the January 2020 VA examination after repetitive use testing; bilateral knee extension was consistently reported as normal throughout this period. Additionally, prior to January 31, 2021, the VA and private treatment records do not show findings worse than those shown on the VA examinations. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, repetitive use, pain during flare-ups, and pain during repetitive use over time.  However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran's reports of severe pain and limitation of motion, including during flare ups and after repetitive use over time, would not result in limitation of motion more nearly approximating extension limited to 15 degrees. See DeLuca v. Brown, at 206; 38 C.F.R. §§ 4.40, 4.45. 

Under 38 C.F.R. § 4.7, the Veteran is entitled to the benefit of the rating criteria that will result in the higher evaluation of his disability. Because the Veteran does not meet the minimum evaluation criteria for a compensable rating under any of the limitation of motion codes, he is provided with the "minimum compensable rating for the joint," as prescribed by 38 C.F.R. § 4.59, "Painful motion." The Board recognizes x-ray findings during the period prior to January 31, 2021, confirm bilateral degenerative arthritis. However, review of the Veteran's medical record is not indicative of occasional incapacitating exacerbations due to arthritis. 

As the Veteran is already receiving 10 percent ratings based on painful motion of the bilateral knees prior to January 31, 2021, a separate rating based on arthritis of the knees with limited motion would constitute pyramiding. See 38 C.F.R. §§ 4.14, 4.59, 4.71a, Diagnostic Code 5003; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Indeed, the code sheet indicates that arthritis has been contemplated as a component of the already service-connected disability for each knee.

In sum, entitlement to an initial rating in excess of 10 percent for the Veteran's bilateral knee disability under DCs 5010-5261 prior to January 31, 2021, is not warranted.

From January 31, 2021, the Board reiterates that the Veteran's right knee limitation of extension is evaluated as 50 percent disabling, and his left knee continues to be evaluated as 10 percent disabling under DCs 5010-5261.

The Board notes that the Veteran is in receipt of the maximum evaluation available under DCs 5010-5261 for right knee limitation of extension for the period from January 31, 2021.

Nonetheless, the Board finds that the Veteran's left knee limitation of extension also warrants a 50 percent disability evaluation for the period from April 2, 2021, under DC 5261. In this regard, the Board notes that the April 2021 VA examination reflects that the Veteran's left knee extension after repeated use over time is limited to 25 degrees and limited to 50 degrees on flare up. Furthermore, the Veteran reported his left knee flare ups as being severe, occurring at a frequency of five to seven times per week, and lasting up to 48 hours. As this is the highest schedular rating available under Diagnostic Code 5261, no further discussion is warranted regarding left knee limitation of extension.

The Board reiterates that prior to January 31, 2021, the Veteran's right knee instability is evaluated as 10 percent disabling, and as 30 percent disabling thereafter. 

For the period from January 31, 2021, the Veteran is in receipt of the maximum evaluation available under DCs 5010-5257 for right knee instability. 

Prior to January 31, 2021, the Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for right knee instability.  The Board has carefully considered the Veteran's reports about a wobbling, instability sensation in the right knee, as well as feelings of his right knee giving out.  English, 30 Vet. App. 347, 352-53.  However, overall, the lay and medical evidence indicates that the instability symptoms have varied and do not suggest the presence of symptoms more nearly approximating moderate severity. In this regard, the Board notes that during the May 2018 VA examination, while the Veteran reported a history of lateral instability, it was described as "slight", and clinical joint stability testing found normal stability in both knees. Furthermore, the January 2020 VA examination contains the first diagnosis of right knee instability of record. Instability of station was noted, and a history of "slight" lateral right knee instability was reported. Upon clinical testing, anterior and posterior stability were normal, and both medial and lateral instability were evaluated as 1+ (0-5mm)  the lowest shown severity.

Therefore, an evaluation in excess of 10 percent for right knee instability prior to January 31, 2021, is not warranted.

Nonetheless, review of the Veteran's medical record reflects that the Veteran was diagnosed with left knee instability in April 2021. See April 2021 VA examination. As such, the amended diagnostic code is for application. 

The Board finds that a separate evaluation of 20 percent under DC 5257(a), recurrent subluxation, or instability, for left knee instability is warranted from April 2, 2021. In this regard, the Board notes the April 2021 VA examination is reflective of a diagnosis of left knee strain and persistent instability. The examination further reflects that the Veteran is prescribed a knee brace for his left knee instability. An evaluation in excess of 20 percent would require either unrepaired or failed ligament tear, or surgical repair. Review of the medical record reflects that the Veteran is neither diagnosed with a ligament tear, nor has undergone any left knee surgery. 

Therefore, the Veteran is assigned a separate 20 percent evaluation for left knee instability under DC 5257 from April 2, 2021.

As previously noted, the Board has considered the other Diagnostic Codes pertaining to the knee and leg.  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).  

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent for a right knee semilunar cartilage condition for the period from January 31, 2021; weighs against an evaluation in excess of 10 percent for painful motion under DC 5010-5261 prior to January 31, 2021 for the right knee and prior to April 2, 2021 for the left knee; weighs against a rating in excess of 50 percent for right knee limitation of extension after January 31, 2021; and weighs against a rating in excess of 10 percent prior to  January 31, 2021 for right knee instability, and in excess of 30 percent thereafter. 

Furthermore, the Board finds that the evidence of record persuasively weighs in favor of assignment of a separate rating of 50 percent for left knee limitation of extension from April 2, 2021; and in favor of assignment of a separate 20 percent rating for left knee instability from April 2, 2021.

The benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

7. Entitlement to an evaluation in excess of 10 percent for a lumbar spine disability for the period prior to January 2, 2020, and in excess of 20 percent thereafter

The Veteran contends he is entitled to an evaluation in excess of 10 percent for a lumbar spine disability prior to January 2, 2020, and in excess of 20 percent thereafter. 

Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269).

VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change.

VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim 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 Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5237. Hyphenated diagnostic codes are used to identify the diagnosed condition (first Code) and identify the criteria used to establish the evaluation (second Code). 38C.F.R. §4.27. 

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.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  

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.  

Under the revised criteria, effective February 7, 2021, DC 5242 now provides that degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome (IVDS) is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (with reference to DC 5003 and 5010). DC 5243 now provides that diagnostic code is assigned only when there is a disc herniation with compression and/or irritation of the adjacent nerve root; DC 5242 is assigned for all other disc diagnoses. There is no change in the General Rating Formula for Diseases and Injuries of the Spine.

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.

The Veteran was afforded a VA back examination in May 2018. The Veteran's diagnosis was confirmed as Scheuermann's disease with scoliosis and thoracolumbar strain. The Veteran reported back pain symptoms. The Veteran denied flare ups, though he reported being unable to run, and being limited to 45 minutes of standing. Initial range of motion measurements were normal, though pain was noted on all panes of motion. There was no additional los of motion or functional loss after observed repetitive use. Range of motion after repetitive use over time could not be estimated due to the necessity of direct observation. The Veteran had no guarding or muscle spasm. Muscle strength, reflex and sensory examinations were normal. No radiculopathy or ankylosis were noted, nor any neurologic abnormalities. He was noted to not have IVDS. Diagnostic imaging did not show arthritis, and the examiner assessed that there was no functional impact in terms of employment. 

The Veteran was afforded another VA back examination in January 2020. The Veteran's diagnosis was confirmed as Scheuermann's disease with scoliosis and thoracolumbar strain, as well as degenerative arthritis of the spine. The Veteran indicated experiencing low back pain currently. The Veteran denied flare ups, though he reported being unable to run, unable to bend over to pick up objects from the floor, and being limited to 30 minutes of standing. Initial range of motion measurements reflect forward flexion was limited to 70 degrees; extension was limited to 20 degrees; bilateral lateral flexion and bilateral lateral rotation were limited to 20 degrees. It was noted that pain causes functional loss, and decreased flexion limits the Veteran's ability to bend over to pick up objects from the floor and tie shoes. Pain was noted on all panes of motion. After three repetitions, the Veteran's forward flexion was limited to 60 degrees; extension was limited to 15 degrees; bilateral lateral flexion was limited to 15 degrees; and bilateral lateral rotation was limited to 20 degrees. Pain was noted to be productive of functional loss. After repetitive use over time, the Veteran's forward flexion was limited to 60 degrees; extension was limited to 10 degrees; bilateral lateral flexion was limited to 15 degrees; and bilateral lateral rotation was limited to 20 degrees. The Veteran had guarding not resulting in abnormal gait or spinal contour. Muscle strength showed active movement against some resistance. Reflex examination showed hypoactive deep tendon reflexes. sensory examination was normal. No radiculopathy or ankylosis were noted, nor any neurologic abnormalities. He was noted to not have IVDS. Diagnostic imaging, including a May 2004 MRI showed degenerative disc disease with a minimal disc bulge  though no herniation or neural foraminal stenosis. The examiner assessed that the Veteran's employment impact includes difficulty standing for prolonged periods and bending to pick up objects. 

The Board notes that the Veteran filed a claim for an increased evaluation in February 2017. 

The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for his lumbar spine disability, for the period prior to January 2, 2020. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and pain during repetitive use over time.  However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran experiences significant pain would not result in limitation of motion more nearly approximating 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. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  In this regard, the May 2018 VA examination reflected entirely normal range of motion measurements and no functional impact resulting from the Veteran's lumbar spine disability. Significantly, the examiner did note the presence of pain on all panes of motion upon testing.  The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, as entitled to at least the minimum compensable rating for the joint. As such, while the Veteran's motion is not compensable under the general rating formula, he is entitled to at least the minimum compensable rating due to painful motion  which is clearly shown during this appellate period.

For the period from January 2, 2020, the Board finds that the evidence of record persuasively weighs against a rating in excess of 20 percent for his lumbar spine disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, repetitive use, and pain during repetitive use over time.  However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran's statements 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. In this regard, the Veteran denied having flare ups, and forward flexion, at worse, was measured to be limited to 60 degrees after repetitive use over time. See January 2020 VA examination. Furthermore, there is no diagnosis of ankylosis of record. 

Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes.  However, the Veteran does not have IVDS.  See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Both the 2018 and 2020 VA examiners note that the Veteran does not have IVDS, and there is no such diagnosis of record in the Veteran's medical record.  

Regarding neurological impairment, the Veteran has already been granted service connection for right lower extremity radiculopathy, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. 

For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for a lumbar spine disability for the period prior to January 2, 2020, and in excess of 20 percent thereafter.  As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

REASONS FOR REMAND

1. Entitlement to service connection for a stomach disability, to include acid reflux is remanded.

The Veteran claims he has a stomach disability and/or acid reflux in part as a result of exposure to environmental hazards during service. See September 2018 Notice of Disagreement. 

The Veteran was afforded a VA Gulf War examination in April 2018, which specifically addressed the Veteran's claimed headache disability. However, it did not address the Veteran's claimed stomach or gastrointestinal disorder.

The Veteran was also afforded a VA esophageal conditions examination in January 2020. The examiner made no diagnoses of any esophageal conditions. 

However, the claims file includes the Veteran's reports of symptoms including diarrhea twice a month, lasting up to two weeks, and chest and stomach pains. 

While the Veteran is competent to report having experienced symptoms of diarrhea, stomach and chest pain and indigestion, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a gastrointestinal or stomach disability, as the issue is medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).

The Board finds that a remand is warranted for a new VA examination that considers the above symptoms and, considering the Veteran's qualifying service in Southwest Asia, whether the Veteran's symptoms may be due to a "a medically unexplained multisymptom illness that is defined by a cluster of signs or symptoms," such as, functional GI disorder (excluding structural GI diseases)." 38 C.F.R. § 3.317 (a)(2)(B)(3).

Therefore, this matter is remanded for further development, to include a Gulf War examination, to determine whether the Veteran's symptoms may be characterized as a "qualifying chronic disability" pursuant to 38 C.F.R. § 3.317.

2. Entitlement to service connection for a headache disability is remanded.

The Veteran claims he has a headache disability as a result of exposure to environmental hazards during service, or in the alternative, as due to service-connected disabilities. See September 2018 Notice of Disagreement. 

The Veteran was afforded a VA Gulf War examination in April 2018, which specifically addressed the Veteran's claimed headache disability. The examiner reported that there was no evidence in the medical record of complaints or treatment for chronic headaches and that the Veteran has about 12 other medical diagnoses. The examiner concludes on this basis that the Veteran's headaches have a clear and specific etiology and diagnosis, and are less likely than not related to service in the Persian Gulf.

The Board finds the 2018 Gulf War examination inadequate for adjudication purposes. In this regard, the examiner fails to explain how it follows from the fact that the Veteran has other diagnosed conditions, that his headaches have a clear and specific etiology. Furthermore, the examiner did not address the pathophysiology of the Veteran's headaches. 

The Veteran was also afforded a VA headache examination in January 2020. Pertinently, the examiner only addressed secondary service connection, without addressing direct service connection. This claim should be treated like a standard claim for service connection, with the in-service event being the exposure itself. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 

As a result, remand is warranted to obtain addendum VA opinions because the VA examinations of record have not adequately addressed the etiology and pathology of the Veteran's headaches. 

3. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded.

The Veteran's claims folder indicates that the Veteran did not attend the PTSD examination scheduled for January 2, 2020. While the Veteran's claims folder shows he was provided with notice of the examination date, time, and location, the Veteran indicates he did not receive such notice. Moreover, the Veteran appeared for multiple separate examinations on the same date. 

Thus, there is an indication that he may not have received notice of such VA examination. Furthermore, in a May 2020 statement, the Veteran indicated he made follow-up calls regarding this matter without resolution, as well as his willingness to appear for a VA PTSD examination.

Therefore, the Board finds that the Veteran should be afforded an additional opportunity to appear for a VA PTSD examination to assess the current nature and severity of his disability.

The matters are REMANDED for the following action:

1. Obtain and associate with the claims file any outstanding VA or private treatment records.

2. Thereafter, schedule the Veteran for appropriate examinations, to include a Gulf War examination, by appropriate clinicians to determine the nature and etiology of the Veteran's claimed stomach and acid reflux symptoms. The clinician/s must respond to the following prompts:

a. Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current symptoms began in active service or are otherwise related to active service, to include as due to exposure to harmful substances in Southwest Asia.

b. Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's symptoms constitute a sign or symptoms of an undiagnosed illness or medically unexplained chronic multisymptom illness pursuant to the provisions of 38 C.F.R. § 3.317.

Complete and detailed rationales should be included in support of all opinions provided.

3. Thereafter, afford the Veteran a new VA Gulf War examination as well as a VA headache examination with an appropriate VA examiner(s) to determine the nature and etiology of the Veteran's headaches. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place.

A complete, detailed history should be elicited directly from the Veteran about the manifestations of the claimed symptoms as well as previous VA examinations conducted. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail.

After the record review and examination of the Veteran, the VA examiner is asked to respond to the following inquiries:

a. The examiner is to provide a medical statement explaining whether the Veteran's disability pattern regarding his headaches is: (1) an undiagnosed illness; (2) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology; (3) a diagnosable chronic multi-symptom illness with partially explained etiology; or (4) a disease with a clear and specific etiology and diagnosis.

b. The examiner should address the headache symptoms described by the Veteran. If the Veteran's symptoms cannot be attributed to a known clinical diagnosis, the examiner should describe pertinent objective findings related to such symptomatology and explain why it cannot be attributed to a known clinical diagnosis.

In making this determination, any objective medical "signs" of disability must be considered, as well as any other, non-medical indicators that are capable of independent verification. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317.

c. If the examiner determines that the Veteran's disability pattern is either a diagnosable chronic multi-symptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, for each diagnosis, the examiner should opine whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that the disability pattern or diagnosed disease is related to any specific exposure event experienced by the Veteran during service in Southwest Asia, or to any other event or incident of active duty service.

A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

4. Thereafter, schedule the Veteran for a VA examination to determine the current level of severity of his service-connected PTSD. The examiner should review the claims file and should note that review in the report.

All signs and symptoms of PTSD should be reported in detail. The examiner should provide a complete rationale for all conclusions reached and should discuss those findings in relation to the pertinent evidence of record.

The examiner should also specifically describe the overall impact of the Veteran's PTSD symptoms on his occupational and social functioning.

 

 

JOHN G. SETTER

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Comninos, Georgio

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.