Citation Nr: 22040182
Decision Date: 07/13/22	Archive Date: 07/13/22

DOCKET NO. 05-03 952
DATE: July 13, 2022

ORDER

Evaluation in excess of 10 percent for left knee chondromalacia, based on instability, is denied. 

Evaluation in excess of 60 percent for service-connected degenerative joint disease of the lumbar spine (with radiculopathy of the lower extremities) is denied. 

A separate disability rating of 20 percent for radiculopathy of the right lower extremity is granted. 

A separate disability rating of 20 percent for radiculopathy of the left lower extremity is granted.

Entitlement to service connection for a dental disability manifested by tooth decay, including as due to medication prescribed for his service-connected degenerative joint disease of the lumbosacral spine for purposes of VA outpatient treatment only, is denied. 

Entitlement to financial assistance in the purchase of an adapted automobile or other conveyance and adaptive equipment is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to the Veteran's service-connected lumbar spine disability with radiculopathy of the bilateral lower extremities from March 28, 2002, but no earlier, is granted. 

FINDINGS OF FACTS

1. The Veteran's left knee chondromalacia is manifested by pain and slight instability. 

2. The Veteran's lumbar spine condition has not manifested with ankylosis of the spine.

3. The Veteran's lumbar spine disability resulted in moderate radiculopathy of his right lower extremity with symptoms such as intermittent pain, numbness, and parathesis. 

4. The Veteran's lumbar spine disability resulted in moderate radiculopathy of his left lower extremity with symptoms such as intermittent pain, numbness, and parathesis

5. The Veteran does not have a dental disability for which service connection may be granted for VA compensation purposes.

6. The Veteran has not lost or permanently lost the use of either foot, has not lost or permanently lost the use of either hand, does not suffer from permanent impairment of vision of both eyes, has not sustained a severe burn injury (deep partial thickness or full thickness burns resulting in scar formation that cause contractures and limit motion of one or more extremities or the trunk and preclude effective operation of an automobile), and does not suffer from amyotrophic lateral sclerosis.

7. The Veteran's service-connected lumbar spine disability with radiculopathy of the bilateral lower extremities resulted in his unemployment and precluded gainful and substantial employment from March 28, 2002, but no earlier. 

CONCLUSIONS OF LAW

1. The criteria for a rating higher than 10 percent for a left knee chondromalacia with instability have not been met. 38 U.S.C. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5257. 

2. The criteria for entitlement to a rating in excess of 60 percent for degenerative disc disease (DDD) of lumbar spine condition have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.7, 4.71a, DC 5243.

3. The criteria for entitlement to a separate 20 percent rating for right lower extremity radiculopathy due to service-connected lumbar spine condition have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5110(a); 38 C.F.R. §§ 3.310, 4.71a, Diagnostic Code 5243. 

4. The criteria for entitlement to a separate 20 percent rating for left lower extremity radiculopathy due to service-connected lumbar spine condition have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5110(a); 38 C.F.R. §§ 3.310, 4.71a, Diagnostic Code 5243. 

5. The criteria for service connection for missing teeth or tooth decay for compensation purposes have not been met. 38 U.S.C.§§ 1110, 1131, 1712, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.381, 4.150, 17.161. 

6. The eligibility criteria for financial assistance in purchasing an automobile or other conveyance and necessary adaptive equipment have not been met. 38 U.S.C. §§ 3901, 3902, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.808.

7. The criteria for entitlement to a TDIU from March 28, 2002, but no earlier, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1985 to February 1990. This matter is on appeal from a January 2003, July 2010, and an April 2014 rating decision. 

The Veteran previously testified at a January 2009 Board hearing before a Veterans Law Judge who is no longer at the Board. A copy of the hearing transcript has been associated with the Veteran's claims file. While the Veteran subsequently requested a new hearing, he failed to appear for his scheduled January 2017 hearing. He has not requested that a hearing be rescheduled no has good cause been shown for his failure to appear. Therefore, the hearing request has been deemed withdrawn. 38 C.F.R. § 20.704(d). 

This matter has a lengthy procedural history. The Board initially denied the Veteran's claims regarding his left and right knee disabilities and entitlement to a certificate of eligibility for an automobile and automobile equipment or adaptive equipment only, and entitlement to service connection for a back disability in a March 2009 Board decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court) and a Joint Motion for Remand was issued in August 2010. The March 2009 Board decision pertaining to the denial of increased ratings for the left and right knee, as well as entitlement to automobile and adaptive equipment was vacated and the matter was remanded for actions consistent with the August 2010 JMR. See March 2011 Board Remand. 

During the pendency of the appeal, the AOJ granted service for the Veteran's lumbar spine disability in a July 2010 rating decision, to which the Veteran filed a Notice of Disagreement, arguing for a higher rating, and perfected his appeal in May 2012. 

More recently in June 2016, the Board denied the Veteran's claims of entitlement to increased ratings for chondromalacia patella of the right and left knees, entitlement to higher initial ratings for DJD of the right and left knees, and entitlement to a certificate of eligibility for an automobile and automobile equipment or adaptive equipment only. In that same decision, the Board granted the Veteran's TDIU claim and remanded the claims pertaining to an increased rating for the lumbar spine disability, and service connection for tooth decay for additional development. 

The Veteran subsequently appealed the denial of his claims to the Court. The parties issued a Joint Motion for Remand in July 2017, in which the Court subsequently granted. The Court partially vacated the Board's June 2016 decision and remanded the claims of entitlement to increased ratings for chondromalacia patella of the right and left knees, entitlement to higher initial ratings for DJD of the right and left knees, and entitlement to a certificate of eligibility for an automobile and automobile equipment or adaptive equipment only for further development in compliance with the directives specified in the July 2017 Joint Motion for Remand. The Board then remanded the claims for additional development in January 2018. 

Since that time, the AOJ issued a March 2022 rating decision, partially granting the Veteran's increased rating claims for his left and right knees. As these rating increases are not the maximum allowable for the entire period on appeal, the increased rating claims remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In that same decision, the AOJ also granted an earlier effective date of April 6, 2011, the grant of TDIU. However, the Veteran continued to assert an earlier effective date for his TDIU. 

In response to the March 2022 rating decision, the Veteran opted to have his appeal reviewed under the AMA system. According to his VA Form 10182, the Veteran wished to appeal the effective date prior to March 15, 2021, for the evaluation of his service-connected right knee chondromalacia from 10 percent to 20 percent; 2) the effective date, prior to March 23, 2018, for the evaluation of his service-connected right knee limited flexion from 10 degrees to 20 percent; 3) an effective date prior to March 23, 2018, for the evaluation of service-connected degenerative joint of the left knee limited flexion from 10 percent to 20 percent. Therefore, those matters are no longer in the legacy system and will be decided in a separate Board decision under the AMA.

The Board notes that the Veteran had also opted his claim for an earlier effective date for TDIU into the AMA. However, the TDIU claim was originally raised under Rice in conjunction with his increased rating claim for his low back disability. Therefore, the Board will adjudicate the claim for earlier effective date for TDIU prior to April 16, 2011, in this decision as part and parcel of his increased rating claim for his low back disability.  

Therefore, the following issues remain on appeal in this legacy appeal: 1) entitlement to a rating in excess of 10 percent for service-connected chondromalacia patella of the left knee; 2) entitlement to an initial rating in excess of 60 percent for service-connected DJD of the lumbar spine with radiculopathy of the bilateral lower extremities; 3) entitlement to service connection for a dental disability manifested by tooth decay, including as due to medication prescribed to treat service-connected DJD of the lumbosacral spine, for purposes of VA outpatient treatment only; 4) entitlement to a certificate of eligibility for an automobile and automobile equipment or adaptive equipment; and 5) an earlier effective date for a TDIU prior to April 16, 2011.

Increased Rating

Disability evaluations are determined by the application of facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) in 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1.

Knee Disabilities

Knee disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263. Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum).

Additionally, if the knee condition involves arthritis, the knee disability may be rated under provisions for evaluating arthritis. Arthritis due to trauma is rated as degenerative arthritis according to Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent 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, the disability is to be rated as follows: with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with X- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5003.

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). Specifically, under Diagnostic Code 5257, was changed to include patellar instability.

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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.

By way of procedure, the Veteran was initially granted service connection and was assigned a noncompensable rating for chondromalacia patella of the left knee under Diagnostic Code 5257. It was subsequently increased to 10 percent by a July 1999 Board decision. He then filed an increased rating claim in January 2001, asserting worsening symptoms. See January 2001 VA 21-526 Veterans Application for Compensation or Pension. 

The question that remains at the Board is whether the Veteran is entitled to a rating higher than 10 percent for chondromalacia of the left knee due to instability. 

Based on a March 2001 VA examination, the Veteran reported pain in both knees, especially with prolonged standing and walking. He indicated that he experienced weakness stiffness, instability or giving way fatigue and lack of endurance, with occasional swelling. He denied dislocation or subluxation of either knee. A physical examination of the knees revealed no synovial effusion. His range of motion of the knees was markedly decreased with left knee flexion to 54 degrees. His extension was to 0 degrees, bilaterally. The pertinent diagnosis was bilateral patellofemoral pain syndrome. The examiner commented that the Veteran knees exhibited weakened movement, excess fatigability, and incoordination but that additional loss of range of motion could not be stated. X-rays of the left knee reveled mild narrowing of the joint space medially. The clinical diagnosis was minimal degenerative joint disease of the left and right knee. 

Private treatment records from January to October 2001 reflected that the range of motion of the right and left knees were within functional limits. Based on a private treatment note in April 2001, the Veteran's physician found no evidence supporting that the Veteran's chondromalacia was active. There was no pain upon range of motion testing, effusion, or patella grinding. VA treatment records from May 2003 to February 2004 reflect good range of motion in all extremities during review of systems in June July, and October 2003, and February 2004. A March 2003 private treatment record indicated that the Veteran's bilateral knees were essentially normal, with very minimal crepitation and excellent range of motion from full extension to over 150 degrees bilaterally. There was no effusion, significant tenderness, or instability in the left knee.  

In February 2005, x-rays were obtained from a VAMC, revealing minimal medial joint space narrowing in each knee. Based on an August 2005 VA examination report, the Veteran reported ambulating with a cane, dragging his right leg without bending or knee or ankle. Examination revealed full range of motion of the knee. Ligament structures were intact and there was no swelling or instability. 

The Veteran was afforded a VA examination in April 2008. There, he complained of bilateral pain, stiffness, and occasional locking. He reported moderate intermittent pain underneath and around the bilateral patellae. He also reported giving way and occasional locking due ot bilateral knee stiffness. He indicated that he experienced flareups of the knee pains once every 3 months, resulting in severe pain. Driving has become difficult, and he is unable to sit for more than 10 minutes without pain. A physical examination of the left knee, he demonstrated no swelling or tenderness. There was no objective evidence of instability. X-rays of the bilateral knees showed minimal early osteoarthritis. He was diagnosed with a left knee patellofemoral joint syndrome. Examination of the left knee revealed no swelling, although there was tenderness under the patella. His active range of motion was from to 42 degrees with pain throughout. The Veteran declined to perform repetitive motion of the left knee due to pain.

At his January 2009 Board hearing, the Veteran testified that his knee pains intensified on cold and damp days and that his knees would become stiff or give out at times. Because of this, he has reported falling on occasion, with problems with prolonged standing and walking. 

The Board notes that the April 2008 VA examination has been deemed inadequate per the August 2010 Joint Motion for Remand in which the parties agreed that while the examiner noted that the Veteran experienced pain throughout active and passive range of motion, he failed to note any additional loss of range of motion due to pain and weakness with repetitive movement as discussed in Deluca. 

Thus, the Veteran was afforded a new VA examination in April 2011. There, he reported bilateral knee pain, rating it between 6/10 to 8/10 in intensity. He denied any instability or giving way of either knee. A physical examination revealed that the Veteran's pain started at 80 degrees flexion and 10 degrees extension. His maximum range of motion is thus, 80 degrees to 10 degrees. There was no synovial thickening, fluid collection, or point tenderness, a full painless range of motion without restrictions, no ligamentous, instability, and no additional limitation of motion when considering the Deluca factors. 

Based on a June 2015 VA examination, the Veteran complained of worsening bilateral knee pain. He reported flare-ups of severe bilateral knee pain when driving and with prolonged sitting. He also reported that his ability to walk up and down stairs was limited due to his bilateral knee problems. His range of motion testing of the bilateral knees showed a flexion to 80 degrees and 0 degrees extension. There was no evidence of pain with weight bearing or crepitus. But there was tenderness to palpation over the joint lines. He declined to perform repetitive use testing, without providing a reason. While the Veteran was not examined immediately after repetitive use over time, the examiner found that the Veteran had pain, weakness, fatigability, or incoordination that limited functional ability with repeated use over time. A muscle strength test revealed normal strength in bilateral knees in both flexion and extension, the score of five out of five. There was no evidence of muscle atrophy or ankylosis in either knee. The Veteran reported occasionally using knee braces. The Veteran reported that because of his symptoms, he cannot stand, sit, or walk, for a prolonged period. 

Based on a February 2016 Disability Benefits Questionnaire, the examining physician noted that the Veteran had been diagnosed with degenerative arthritis of the left and right knee in 1986. His initial range of motion of the left knee was 140 degrees in flexion and 0-degree extension. He was able to complete a repetitive use testing without resulting in additional loss of range of motion. The Veteran did not report pain during the examination. There was no objective evidence of localized tenderness or pain on palpation of the joint. There was no evidence of crepitus. The examiner noted that the Veteran was examined immediately after repetitive use testing, but that he could not say without speculating whether the Veteran's pain, weakness, fatigability, or incoordination would limit functional ability with repeated use over time. A muscle strength test revealed normal strength in both flexion and extension with a score of 5 out of 5. There was no evidence of muscle atrophy or ankylosis. Joint stability tests revealed no evidence of recurrent subluxation, lateral instability, or recurrent effusion. Further evaluation revealed no evidence of other knee disabilities (such as a meniscal condition). 

Per the July 2017 Joint Motion for Remand, the parties agreed that the February 2016 VA examination was inadequate as the examiner did not discuss whether there was any functional loss during flare-ups despite specifically noting that the Veteran reported that his range of motion was decreased with flareups, in accordance with Mitchell. 

The Veteran was afforded a new VA examination in March 2018. There, the Veteran reported that his bilateral knee symptoms began in January 1986. He recalled pain in both knees while he was serving the Marine Corp. It has gotten worse ever since, with pain exacerbating with prolonged walking and using the stairs. He reported flare-ups of the knee, with functional loss and functional impairment of the joint. An initial range of motion of the left knee was limited to 40 degrees flexion and 0 degrees extension. There was evidence of pain with weight bearing, but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of crepitus. The examiner noted that pain noted on the examination caused functional loss. A repetitive use testing was also performed, which resulted in additional limited motion with flexion to 30 degrees (and 0-degree extension). The examiner noted that he was unable to determine whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time because a range of motion test is required after 20 to 30 minutes of repetitive movements. The examiner also noted that he was not able to determine whether pain, weakness, fatigability or incoordination significantly limit functional ability with flareups as a range of motion testing would need to be measured during a flareup. A muscle strength test revealed normal strength in both flexion and extension in the left knee. There was no evidence of muscle atrophy or ankylosis. Joint stability tests revealed no evidence of recurrent subluxation, lateral effusion, or recurrent effusion. Unlike prior examinations, the examiner noted that the Veteran has a meniscal tear on the left knee. It was noted that he had undergone a meniscectomy in 1991 and 1993. Because of his symptoms, he occasionally uses wheelchair, cane, and walker. 

Based on another VA examination in August 2020, the Veteran reported continued complaints of bilateral knee pains. The examining physician found that in addition to limited range of motion due to degenerative arthritis, the Veteran also suffered from bilateral knee instability. An initial range of motion test revealed a limited flexion to 100 degrees with 0-degree extension. The examiner found no objective evidence of pain with weight bearing or crepitus in either knee. There was no objective evidence of localized tenderness or pain on palpation of the joint. The Veteran was able to complete a repetitive use testing without resulting in additional loss of motion. With repeated use over time, the examining physician found that the Veteran's pain, weakness, fatigability, or incoordination result in additional limitation of motion. After repetitive use, the examiner found that the Veteran's flexion is 80 degrees. A muscle strength test revealed a slight reduction in strength with a score of 4 out of 5 in both flexion and extension in the left knees. There was no evidence of muscle atrophy or ankylosis. Joint stability tests noted slight lateral instability in both knees. There was no recurrent subluxation or recurrent effusion. The examiner noted that the Veteran did not have (nor did he ever have) a meniscus condition. However, it was noted that the Veteran underwent an arthroscopic meniscectomy in 1991. Additionally, he has residual signs or symptoms of meniscectomy, particularly pain. Unlike his previous examination reports, the Veteran denied using any assistive devices. In his final remarks, the examining physician found no evidence of pain on passive range of motion testing, pain on non-weight bearing testing, pain on passive range of motion, and pain on non-weightbearing testing of the left knee. The Veteran indicated that due to the condition, he is unable to walk 200 feet and is unable to lift any object that weighs more than 3 pounds. Precipitating facts that aggravate his pain include prolonged standing and walking. 

VA treatment records in March 2021 noted the Veteran reported that his right knee causes him 'considerable amount of pain.' He reported a 'tearing sensation,' with sharp pain. X-rays revealed minimal osteoarthritis without acute osseous abnormality. The Veteran indicted that his pain has intensified and requires more frequent uses of the brace for support and protection. However, he denied sensations of giving way. A physical evaluation noted that the Veteran reported a 10 out of 10 pain level in the right knee (with certain movements). There was tenderness to palpation along the posterior/lateral right knee joint line with quarter sized area. However, nothing was said of the left knee. There was no increased pain or significant increased laxity noted with varus/valgus stress testing or with anterior drawer. His patellar mobility was with normal limits. 

The Board notes that the Veteran's left knee chondromalacia is rated and compensated based on instability and will consider whether separate disability ratings may also be warranted. Upon evaluation of the evidence, Diagnostic Code 5256 is not applicable because the evidence does not show ankylosis, or the functional equivalent of ankylosis, at any time during the period on appeal. There is no allegation to the contrary. As the Veteran had never undergone any surgery to remove his cartilage, Diagnostic Code 5259 is not applicable. Diagnostic Code 5262 is also not applicable because the Veteran's left knee disability do not involve the impairment of the tibia or the fibula. There is no allegation to the contrary. There is no evidence of nonunion or malunion of the left knee. Furthermore, without a showing of genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing), a disability rating under Diagnostic Code 5263 is not warranted. There is no allegation to the contrary.

Given the report that the Veteran has undergone an arthroscopic meniscectomy, the Board will determine whether a separate compensable rating is warranted under 5258. Under DC 5258, a 20 percent rating is warranted when there is dislocation of the semilunar cartilage, with frequent episodes of joint locking, pain, and effusion into the joint. See 38 C.F.R. § 4.71a. 

The Board finds that a separate rating of 20 percent is not warranted under Diagnostic Code 5258 as the medical evidence does not show a dislocation of the semilunar cartilage. The Board notes that the Veteran underwent an arthroscopic meniscectomy of the left side in 1991. After the repair, the Veteran is not shown to demonstrate a dislocation of the semilunar cartilage, with frequent episodes of joint locking, pain, and effusion of either joint. The February 2016 and August 2020 examinations specifically noted that the Veteran did not have frequent episodes of joint locking, pain, and effusion. While earlier treatment records have documented occasional complaints off locking and pain, the Veteran has already been compensated under Diagnostic Code 5257 for the same symptoms. To allow a duplicative compensation under Diagnostic Code 5258 would violate VA's prohibition against pyramiding. 38 C.F.R. § 4.14.

The Board notes again that the Veteran's left knee disability based on limitation of motion will be addressed in a separate Board decision under the AMA. Thus, the Board will now determine whether a higher rating may be awarded based on instability. 

Prior to February 7, 2021, DC 5257 provided that a 10 percent rating was warranted for slight recurrent subluxation or lateral instability; a 20 percent rating was warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating was warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257.

DC 5257 does not define "slight," "moderate," or "severe," or generally associate those terms with specific symptoms. One possible source for such definitions would be the dictionary. 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.

As of February 7, 2021, under the amended criteria, DC 5257 provides that a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. 38 C.F.R. § 4.71a, DC 5257; 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5257.

A 20 percent rating is warranted for (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. Id.

A 30 percent rating is warranted for severe 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. Id.

For patellar instability, a maximum 30 percent rating is awarded 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 or either a cane or a walker. A 20 percent rating is awarded 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 10 percent rating is awarded for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without a history of surgical repair) that does not require a prescription by a medical provider for a brace, cane, or walker.

Overall, the Board finds a rating in excess of 10 percent is not warranted for the Veteran's left knee chondromalacia. 

In applying the old criteria under Diagnostic Code 5257 prior to February 7, 2021, a rating higher than 10 percent is warranted if moderate instability has been shown. However, in reviewing the record, the Board finds that moderate symptoms have not been demonstrated in the left knee. Based on the Veteran's March 2001 VA examination, the Veteran presented with patellofemoral pain syndrome and complained of weakness, instability, and giving way. He added that there was occasional swelling that contributed to his pain. However, the Veteran's collective VA treatment records that spanned from January 2001 to March 2003 noted that his physician did not see evidence that his chondromalacia was active as there was no evidence of painful range of motion, effusion, or grinding. A March 2003 private treatment note specifically indicated that the Veteran did not have instability in the left knee. 

However, in April 2008, the Veteran complained of stiffness, occasional locking, and giving way. In considering his subjective reporting, the April 2008 VA examiner conducted an examination but found no objective evidence of instability. Despite the Veteran's January 2009 testimony of his knees giving way, subsequent objective testing in April 2011, June 2015, February 2016, March 2018 found no evidence of instability. It was not until August 2020 in which diagnostic testing revealed slight lateral instability in the left knee. 

The Court held that objective medical evidence is not required to establish lateral knee instability under the 'old' version of DC 5257; thus, 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). 

In this case, while medical evidence did not support objective evidence of instability, the Board has taken into account the Veteran's credible statements pertaining to the severity of his left knee instability. It is clear from the record that he has pain, swelling, and sensations of giving way. However, such statements are consistent with a 10 percent disability rating as it was not shown to be limited in scope or effect or very painful.  

Even under the revised rating criteria from February 7, 2021, the Veteran would not meet the diagnostic criteria under ligament tear since the evidence does not show that he has an existing ligament tear in his left knee that caused persistent instability. The Board acknowledges that the Veteran underwent an arthroscopic meniscectomy in 1991 to repair a tear. While he may have residual symptoms, specifically pain, the evidence during the period on appeal does not show that his disability equates to a ligament tear. The record also demonstrates that he has instability. However, as documented, his reported instability does not proximate moderate or severe impairment such that a rating higher than 10 percent rating is warranted. 

As for patellar instability, the Board finds that his symptoms more proximate a 10 percent rating given the Veteran's patellofemoral syndrome and instability. A higher rating is not warranted as the evidence does not show recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. 

The Board is mindful of the Veteran's complaints relating to his left patellofemoral pain syndrome, which result in occasional giving way, stiffness, and instability. It is also noted that the Veteran's patellofemoral pain syndrome also waxed and waned during the period on appeal. For example, in March 2001, the Veteran complained of weakness stiffness, instability, and giving way. However, treatment records from January 2001 to February 2004 found no evidence of pain, effusion, or patellar grinding. In fact, his physician did not see medical evidence of chondromalacia. In April 2008, the Veteran complained of sensations of giving way and occasional locking due to knee stiffness. The Veteran reported using a cane but that it was not necessary. 

In June 2015 and March 2018, the Veteran reported occasionally uses assistive devices. By August 2020, the Veteran reported that he did not use any assistive devices for his left knee. Moreover, the Veteran's pain and use of assistive devices have been considered in his grant for a higher rating for limitation of motion. It is likely diagnostic code 5260 and 5257 may consider similar disability manifestations. However, to consider the same symptoms under both diagnostic codes would violate the rule against pyramiding detailed in 38 C.F.R. § 4.14. 

Therefore, a rating higher than 10 percent is not warranted for the Veteran's left chondromalacia under the new diagnostic criteria. 

In summary, the evidence is persuasively against a rating in excess of 10 percent at any time during the period on appeal for the Veteran's left knee chondromalacia, and the appeal is denied.

Lumbar Spine Disability

The Veteran seeks a higher rating for his lumbar spine condition. His lumbar spine condition is currently rated as 60 percent disabling under DC 5243 for intervertebral disc syndrome (IVDS).

By way of procedure, the Veteran was granted service connection for a degenerative joint disease of the lumbar spine with radiculopathy of the bilateral lower extremities, assigning a 60 percent rating, effective January 4, 2001, a temporary total disability rating from January 19, 2001, based on the need for surgical or other treatment necessitating convalescence, a 60 percent rating effective April 1, 2001, a temporary total (100 percent) disability rating effective October 4, 2001, based on the need for surgical or other treatment necessitating convalescence, and a 60 percent rating effective December 1, 2001. See July 2010 Rating Decision. The Veteran disagreed with this decision later in September 2010. He perfected a timely appeal in May 2012.

The regulations provide that back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a.

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, DC 5243.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is 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, DC 5237.

Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V.

In evaluating disabilities of the musculoskeletal system, it is also necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. 

Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

Effective February 7, 2021, the DCs pertaining to the lumbar spine were amended. For purposes of this decision, the applicable rating criteria for those DCs did not materially change. See 85 Fed. Reg. 76453 (Nov. 30, 2020) (as corrected at 85 Fed. Reg. 85523 (Dec. 29, 2020), as corrected at 86 Fed. Reg. 8142 (Feb. 4, 2021)).

In March 2001, the Veteran asserted that his lower back disability caused moments of temporary paralysis, resulting in falls. He would urinate and defecate uncontrollably. He experienced shooting pain to his legs and his groin area. X-rays of his lower back revealed herniation in the L3-L4 region. He underwent surgical treatment in January 2001. The surgery prevented him from future urinating and urinating involuntarily. However, he continued to experience radiating pain in his legs. See March 2001 Correspondence. 

VA treatment records dating March 2001 noted that the Veteran has been diagnosed with herniated nucleus pulposus, status post diskectomy with severe residual functional disability. The examiner noted that the Veteran complained of numbness in his legs. A February 2005 x-ray confirmed the Veteran's surgery at L4 with resection of the spinous process and changes consistent with a laminectomy. The disc spaces were well maintained and there was no acute bony abnormality, with minimal spondylosis. At an August 2005 VA evaluation, a straight leg raising test revealed a positive result at 60 degrees on the right side and 90 degrees on the left side. He had very limited motion of the lumbar spine as he only had a forward flexion of 10 degrees. 

Social Security Administration records confirmed the Veteran's laminectomy in October 2001. In May 2002, the Veteran was seen by his private orthopedist, who noted the Veteran's complaints in his lower back and numbness in his legs (more so in the right leg than the left). Upon examination, the Veteran moved extremely cautiously with a very protective gait. The physician offered a clinical impression of epidural fibrosis and recommended physical therapy and further evaluation. The Veteran returned for a follow up visit in March 2002, in which he continued to complain of pain in both legs, with dysesthesias and numbness in his feet. He indicated that he used a cane to assist with mobility.  

Based on a May 2008 treatment record, the Veteran reported numbness and pain in his legs. He described it as throbbing, burning, gnawing sensations beginning in his spine that radiates into his legs, groin, and testicles. 

The Veteran was afforded VA examination in April 2008. There, he reported severe low back throbbing pain that radiates into his legs. He had an abnormal gait with pain on motion, tenderness and weakness. This thoracolumbar spine range of motion was limited to 35 degrees flexion. His left lateral flexion was to 20 degrees, his left lateral rotation was to 18 degrees, his right lateral flexion was to 15 degrees, and his right lateral rotation was to 18 degrees. there was objective evidence of pain with active range of motion. 

At his July 2010 VA examination, the Veteran demonstrated limited lumbar range of motion with pain. While there was no muscle spasms or muscle atrophy, his range of motion of limited to 10 degrees flexion. His left and right lateral rotation was to 20 degrees. The examiner noted that the Veteran has lumbar degenerative disc disease with radiculopathy in both lower extremities. 

A June 2015 VA examination report noted that the Veteran had been diagnosed with degenerative arthritis of the spine as well as IVDS. He reported flareups, resulting with increased pain especially with prolonged sitting. His initial range of motion revealed a forward flexion of 40 degrees with 20 degrees extension. His right and left lateral flexion were to 15 degrees. His right and left lateral rotation were to 20 degrees. He declined repetitive use testing. The examiner noted that the Veteran's pain, weakness, fatigability or incoordination significantly limit his functional ability with related use over time. However, the examiner was unable to speculate the additional loss of range of motion. There was no guarding or muscle spasms of the thoracolumbar spine. A muscle strength test revealed normal results with no evidence of muscle atrophy. The Veteran, however, demonstrated an abnormal reflex examination. While straight leg raising test was negative, the examiner found that the Veteran exhibited signs of radiculopathy in the lower extremities at a moderate level in the right side and mild level on the left side. Specifically, the Veteran exhibited moderate intermittent pain, paresthesias, and numbness in the right leg. He had mild intermittent pain and paresthesias, with moderate numbness in the left leg. There was no objective evidence of ankylosis. There were no other neurologic abnormalities. While the Veteran was diagnosed with IVDS, the examiner found that he had not been prescribed bed rest by a physician. 

Based on a February 2016 Disability Benefits, the examining physician noted that the Veteran's lumbar degenerative joint disease radiculopathy of the left and right lower extremities is active. He demonstrated an abnormal range of motion with 90-degree flexion and 30 degrees extension. His right and left lateral flexion were both to 30 degrees. His right and left lateral rotation were to 30 degrees. The Veteran was able to complete a repetitive use testing without resulting in additional loss of range of motion. The examiner found that the Veteran's pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time. However, he could not determine the degree of additional loss of motion. The Veteran denied muscle spasms, localized tenderness, and guarding. A muscle strength test revealed normal strength. There was no evidence of muscle atrophy or ankylosis. While his straight leg raising test yielded negative findings, the examining physician found that the Veteran exhibited symptoms of radiculopathy to a mild degree. Unlike the previous VA examination, the February 2016 examining physician found that the Veteran did not have IVDS. 

The Veteran was afforded another VA examination in March 2018. There, the VA examiner noted that the Veteran has lumbosacral strain, degenerative arthritis of the spine, and IVDS. A physical examination revealed and abnormal range of motion with forward flexion to 30 degrees and extension to 20 degrees. His right and left lateral flexion were both to 20 degrees. His right and left lateral rotation were also to 20 degrees. There was evidence of pain with weight bearing but no objective evidence of localized tenderness or pain on palpation of the joints. The Veteran was able to complete a repetitive use testing but resulting in additional loss of range of motion. His forward flexion was reduced to 20 degrees and his extension was reduced to 10 degrees. His right and left lateral flexion were both to 10 degrees. His right and left lateral rotation were also to 10 degrees. Regarding repeated use overtime, the examiner was unable to determine whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use. Further examination revealed that the Veteran denied any guarding or muscle spasms of the back. A muscle strength test revealed normal strength with no evidence of muscle atrophy. There was no evidence of ankylosis. While his straight leg raising test was negative, the examiner found that the Veteran demonstrated signs of radiculopathy in the lower extremities, to a moderate degree in the bilateral legs. The Veteran reported occasionally using a wheelchair, brace, cane, and a walker. Finally, the examiner noted that the Veteran demonstrated pain on passive motion testing with pain and with non-weight bearing movement. The Veteran reported that episodes of flareups adversely affect activities of daily living such as standing, sitting, walking, and bending. 

The Veteran was reevaluated in August 2020. Based on his Disability Benefits Questionnaire, he continued to complain of back pain that result in functional loss. He stated that he is unable to walk 200 feet or lift any object more than 3 pounds. His initial range of motion revealed a forward flexion of 60 degrees with 15 degrees extension. His right and left lateral flexion were both to 15 degrees. His right and left lateral rotation were also to 15 degrees. The examiner noted that pain result in functional loss. The Veteran was able to complete a repetitive use testing without resulting in additional loss of range of motion. With repeated use overtime, the examiner noted that pain, weakness, fatigability, or incoordination significantly limit functional ability. He concluded that after repeated use, the Veteran's range of motion is reduced 50 degrees forward flexion and 10 degrees extension. His right and left lateral flexion was also reduced to 10 degrees. His right and left lateral rotation were reduced to 10 degrees. While the examination was not conducted during a flare up, the examiner found that the Veteran would also demonstrate additional loss of range of motion. Similarly, his forward flexion would be reduced to 50 degrees and 10 degrees extension. Second a muscle strength test revealed a slight reduction in strength with a score out of four out of five in his bilateral knee extension. However, there was no evidence of muscle atrophy or ankylosis. His reflex and sensory examinations yielded normal results. A straight leg raising test was positive. The examiner second found that the veteran demonstrated a moderate level of radiculopathy in the lower extremities. While the Veteran has been diagnosed with high IVDS, he has not been prescribed bed rest by a physician. In his final remarks, the examiner found no evidence of pain on passive range of motion or pain on non-weight bearing testing.

In considering the evidence of record, the Board finds that other than the periods in which the Veteran was assigned a temporary 100 percent rating for his lumbar spine disability, the evidence does not show a disability picture higher than 60 percent at any point during the period on appeal. 

A 60 percent is the maximum rating allowed for IVDS based on incapacitating episodes. Therefore, to warrant the next higher rating of 100 percent, the Veteran must demonstrate unfavorable ankylosis of the entire thoracolumbar spine. 

Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. 

The U.S. Court of Appeals for Veterans Claims (Court) has held that the requirement of ankylosis in the General Rating Formula for Injuries and Diseases of the Spine can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint) during a flare-up.  Chavis v. McDonough, 34 Vet. App. 1 (2021).

The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss. Since 2001, the Veteran reported constant pain in his lumbar spine that also radiated into his lower extremities. In 2002, the Veteran complained of dysesthesias and numbness that radiated into his feet. He reported using a cane to help with mobility. Subsequent examinations showed a limited range of motion, but mobility, nonetheless. For example, at his April 2008 VA examination, the Veteran was able to flex is thoracolumbar spine to 35 degrees. While he also showed increased limitation of motion at his July 2010 VA examination, with a forward flexion of only 10 degrees, he showed significant improvement in his June 2015 VA examination. He was able to flex his lumbar spine to 40 degrees with 20 degrees extension. The Board notes that the Veteran refused to complete a repetitive use testing due to pain. However, this does not suggest that his back is ankylosed as he maintained his ability to walk, albeit with a cane (for prolonged walks). At his February 2016 and March 2018 examinations, the Veteran's forward flexion was to 30 degrees He demonstrated normal strength with no evidence of muscle atrophy or ankylosis. By August 2020, his flexion was increased to 60 degrees with 15 degrees extension. Even considering his flares ups and repeated use, his flexion was slighted reduced to 50 degrees. 

Even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements does not result in symptoms more nearly approximating unfavorable ankylosis of the entire spine. Overall, the Veteran's back disability is not shown to be "fixed" in flexion or extension. The Board is mindful of the Veteran's difficulty in prolonged walking and standing, as well as that he also suffers from service-connected knee disabilities, which affects his mobility. Nevertheless, the Veteran has still demonstrated his ability to move around, albeit slow and with some difficulty. It has not been shown that his condition has resulted in additional neurological symptoms, evidence by his various VA examinations. He has not demonstrated a limited line of vision, restricted opening of the mouth, limited breathing, or gastrointestinal symptoms. Moreover, even to the extent the Veteran experiences flare-ups, the findings have not shown that the flare-ups are so prevalent or severe as to conclude that the Veteran's back disability is the functional equivalent to being ankylosed.

There is also no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination for the lumbar spine for this period, as the Veteran is already receiving the maximum rating based on limitation of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

While the Board finds that a higher rating under Diagnostic Code 5243 is not warranted, the Board finds that the Veteran is entitled to separate disability ratings for his radiculopathy of his lower extremities. 

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id.

Under Diagnostic Code 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating requires evidence of moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires evidence of moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires evidence of severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires evidence of complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

The term "incomplete paralysis," with these and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor.  38 C.F.R. § 4.124a.

In Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018), the U.S. Court of Appeals for Veterans Claims noted that "DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms."  One possible source for such definitions would be the dictionary.

Webster's II New College Dictionary defines "mild," as relevant here, as "not severe."  Id. at 694 (1995).  A synonym for "mild" is "slight," and definitions for "slight" includes "small in size, degree, or amount."  Id. at 1038.  The definitions for "moderate" include "of average or medium quantity, quality, or extent."  Id. at 704.  Finally, definitions for "severe" include "extremely intense."  Id. at 1012.  It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe."

The Board notes that the Veteran has exhibited compensable signs of radiculopathy in his lower extremities throughout the period on appeal. In his March 2001 correspondence, the Veteran indicated that he experienced radiating pains from his back into his legs. An August 2005 VA examination noted a positive straight leg raising test in his bilateral lower extremities. Symptoms of radiculopathy were also documented in his Social Security Administration records with complaints of lower back pain and numbness in his legs. 

The Veteran's subjective reports of radiculopathy were later confirmed by objective testing. His VA examination in July 2010 specifically noted the presence of radiculopathy in the Veteran's lower extremities. At his June 2015 VA examination, the Veteran exhibited symptoms of radiculopathy despite a negative straight leg raising test. The examiner specifically noted the Veteran's moderate radicular symptoms in lower extremities due to intermittent pain, paresthesias, and numbness. Similar findings were confirmed in his February 2016 Disability Benefits Questionnaire. Then, in March 2018 and August 2020, the examiners concluded that the Veteran demonstrated a radiculopathy in the lower extremities to a moderate degree.  

Overall, the Board finds that the evidence of record shows the Veteran's left and right lower extremities radiculopathy of the sciatic nerve most proximate a moderate level of severity. Therefore, separate disability ratings of 20 percent is assigned for each of the Veteran's lower extremities from January 4, 2011. 

Service connection

The Veteran is currently seeking service connection for a dental disability that resulted from his medication used to treat his service-connected joint disease of the lumbosacral spine.

Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence showing (1) current disability; (2) in-service incurrence in or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a).

Additionally, service connection may be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities, and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b).

Dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, loss of the maxilla, nonunion or malunion of the maxilla, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, DCs 9900-9916.

Under 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are to be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. Under 38 C.F.R. § 17.161, veterans are entitled to service connection for treatment purposes if they have a noncompensable dental condition due to service trauma (Class II(a)) or if they have a certain special status.

It is the Veteran's contention that he developed dental problems due to severe dry mouth from his medication for his back conditions. See May 2013 VA 21-526b Veterans Supplemental Claim. 

His medical treatment records show that the Veteran has been prescribed various medications for both his service-connected and non-service-connected disabilities for treatment and pain management. 

In November 2017, the Veteran was seen for throbbing pain in his mouth. Upon examination, the dentist found that he had a 'heavy' plaque index with moderate risk. His periodontal assessment was gingivitis. 

VA Dental treatment records in December 2017 noted that the Veteran was missing teeth numbers 1, 9, 14, 19, 30, 32. The physician diagnosed the Veteran with moderate gingivitis and slight bone loss. Probings were within normal limits. There was moderate inflammation/erythema and moderate bleeding. There was mild cervical soft deposit and moderate subgingival IP calculus. There was moderate sextant 5 calculus and minimal straining. He was treated with mouth debridement and fluoride varnish.  

In January 2018, the Veteran was seen for a tooth extraction. In February 2021, the Veteran presented with a lesion on his lip with drainage. He was prescribed an antibiotic toothpaste medication. 

Pursuant to the January 2018 Board remand, the Veteran was afforded a VA examination to determine the possible nexus between the Veteran's current dental issues and his medications for his service-connected back condition. 

Based on a March 2018 Disability Benefits Questionnaire, the examining physician found no diagnosis of a dental disability. It was noted that the Veteran has taken medication (oxycodone/oxycontin) for his back pain for several years and has claimed that it caused his dry mouth. A physical examination found no dental disability other than loss of teeth caused by periodontal disease. 

In light of the above, the reported tooth decay is not a disability listed in 38 C.F.R. § 4.150 that are eligible for service connection for compensation purposes. He is, however, shown to have missing teeth.

The Veteran's dental records clearly show that he is missing several teeth. However, there was no reported loss of motion or opening ability with the mandible. His service treatment records do not show any complaints or documentation of injury to his head or mouth, resulting in missing teeth. Rather, his dental treatment records document that his missing teeth are a result of progressive periodontal disease. 

The Veteran does not assert nor does the evidence show that he had dental trauma or any other dental disorder during service that is eligible for compensation. To establish entitlement to service connection for loss of a tooth, the Veteran must have sustained a combat wound or other in-service trauma. 38 U.S.C. § 1712; 38 C.F.R. § 3.381 (b). The Board notes that the term "service trauma" does not include the intended effects of therapy or restorative dental care and treatment provided during a veteran's active service. See 38 C.F.R. § 3.306 (b)(1). This has not been shown. 

The record also does not show the Veteran had any of the dental disorders listed in 38 C.F.R. § 4.150. This is a critical element that must be established regardless of whether service connection is considered on a direct or secondary basis. Without such a disorder, the claim must be denied. See 38 U.S.C. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). 

Financial assistance in the purchase of an automobile or other conveyance and/or automobile adaptive equipment

The Veteran asserts that he is entitled to financial assistance in the purchase of an automobile or other conveyance and/or automobile adaptive equipment and filed his application in May 2001. See May 2001 VA 21-4502 Application for Automobile or Other Conveyance and Adaptive Equipment Under 38 U.S.C. § 3901-3904. 

VA may provide, or assist in providing, an "eligible person" with an automobile or other conveyance, and necessary adaptive equipment. 38 U.S.C. §§ 3902 (a), (b)(1). A Veteran may receive financial assistance for providing an automobile or other conveyance and adaptive equipment only if the Veteran is entitled to compensation for any of the disabilities described below, and if such disability is the result of an injury incurred or disease contracted in or aggravated by active military, naval, or air service: (i) The loss or permanent loss of use of one or both feet; or (ii) The loss or permanent loss of use of one or both hands; or (iii) The permanent impairment of vision of both eyes of the following status: central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than twenty degrees in the better eye; or (iv) Severe burn injury: Deep partial thickness or full thickness burns resulting in scar formation that cause contractures and limit motion of one or more extremities or the trunk and preclude effective operation of an automobile; or (5) Amyotrophic lateral sclerosis. 38 U.S.C. §§ 3901 (1)(A), 3902(b)(2); see also 38 C.F.R. § 3.808 (b).

The term adaptive equipment means generally, that equipment which must be part of or added to a conveyance manufactured for sale to the general public to make it safe for use by the claimant and to assist him or her in meeting the applicable standards of licensure of the proper licensing authority. See 38 C.F.R. § 3.808 (e). The regulation further provides that, with regard to automobiles and similar vehicles the term includes a basic automatic transmission as to a claimant who has lost or lost the use of a limb. See 38 C.F.R. § 3.808 (e)(1).

The term "loss of use" of a hand or foot is defined by 38 C.F.R. § 3.350 (a)(2) as that condition where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc. in the case of the hand, or balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis.

Examples under 38 C.F.R. § 3.350 (a)(2) of what constitutes loss of use of a foot or hand include extremely unfavorable ankylosis of the knee, or complete ankylosis of two major joints of an extremity or shortening of the lower extremity of three and a half inches or more. Complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve is also considered loss of use of a foot under 38 C.F.R. § 3.350 (a)(2).

In Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017), the United States Court of Appeals for Veterans Claims (Court) further clarified that the standard for "loss of use of the feet" under 38 C.F.R. §§ 3.350 (a)(2)(i) and 4.63 is not the same as "loss of use of the lower extremities" for purposes of entitlement to specially adapted housing under 38 C.F.R. § 3.809 (b). That is, "loss of use of the feet" is a more stringent standard for a veteran to meet than "loss of use of the lower extremities." Id. The Court in Jensen did note, however, that "loss of use" in a general sense was the "deprivation of the ability to avail oneself" of that extremity. Id.  

The Veteran is service connected for lumbar degenerative joint disease at 60 percent, radiculopathy of the bilateral lower extremities at separate 20 percent ratings, degenerative joint arthritis of the left knee based on limitation of flexion at 20 percent, degenerative arthritis of the right knee based on limited flexion at 20 percent, chondromalacia of the right knee at 20 percent, chondromalacia of the left knee at 20 percent, radiculopathy of the left lower extremity at 20 percent, radiculopathy of the right lower extremity at 20 percent, and residuals of a fracture of the first metacarpal of the left thumb at 10 percent. The Veteran is also service connected for residuals of a nasal fracture, a back scar associated with his lumbar disability, a right knee scar, a left knee scar, and a left eye peripheral corneal scar, all at a non-compensable rating.

The Veteran's medical records clearly show that his service-connected disabilities have resulted in significant limitation of motion. 

For example, various VA examinations for his bilateral knee disabilities have shown limited range of motion due to pain and instability. At worse, the Veteran was limited to only 30-degree forward flexion in both knees as documented in his March 2018 VA examination report. The Veteran has consistently reported pain and with episodes of swelling and instability. He has reported the use of assistive devices such as braces and a cane. 

Furthermore, the Veteran also has a significant lumbar spine disability rated at 60 percent, with separate disability ratings of 20 percent for radiculopathy of the left and right leg. In early 2002, the Veteran was seen by his private physician and was noted to have a very protective gait due to pain in his back and legs. He reported using a cane to assist with mobility. Subsequent treatment records and VA examinations continued to show limited range of motion of the spine with notable numbness in his lower extremities. For example, in July 2010, the Veteran was only able to flex is lumbar spine to 10 degrees. In June 2015, he showed some improvement with his lumbar spine flexion to 40 degrees. Moreover, VA examiners in March 2018 and August 2020 have found moderate level radiculopathy of the lower extremities. The Veteran reported to the March 2018 VA examiner that he occasionally uses a wheelchair, brace, cane, and a walker. 

Despite his limited bilateral knee function, his overall disability does not result in the loss or loss of use of his foot or feet. At his August 2005 VA examination, the Veteran reported ambulating with a cane and dragging his right leg without bending his knee or ankle. However, a physical examination revealed that he had full range of motion in both knees. There was no evidence of swelling or instability. By April 2011, the Veteran demonstrated some improvement in his range of motion in the bilateral knees, with a forward flexion to 80 degrees. There was no evidence of muscle weakness or atrophy that would preclude the use of his legs or feet. In June 2015, while the Veteran reported some worsening symptoms, he still demonstrated his ability to walk, albeit with knee braces. The Veteran reported the occasional use of knee braces, especially for prolonged walking or standing. Objective testing revealed no evidence of muscle atrophy or ankylosis. More recently, at his August 2020 evaluation, the Veteran demonstrated a forward flexion to 100 degrees. While there was a reduction in range of motion after repeated use, the Veteran still maintains his ability to walk unaided.  The Veteran specifically indicated that he did not require the use of any assistive devices, despite his knees and back disabilities. 

Following a thorough review of the record in this case, and the applicable laws and regulations, the Board finds that the weight of the evidence is against the Veteran's claim for a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance, and adaptive equipment therefor, as well as for adaptive equipment only. See 38 U.S.C. § 5017; 38 C.F.R. § 3.102.

First, the Veteran makes no allegations, and the record does not speak to, any service-connected vision impairment, burn injury, or ALS. In this case the Veteran manifests decreased motion with pain and with weakness of the lower extremities. But the evidence does not support a finding that the Veteran has lost the function of either foot so as to show loss of use as defined above. 

The Board acknowledges the Veteran's reported difficulties with ambulation due to his service-connected disabilities that manifest in pain, numbness, and weakness of the lumbar spine and bilateral lower extremities, producing problems with walking and standing, which require the Veteran to use a brace and a cane to assist with mobility. The Board is also mindful of the of the Veteran's pain and limitation of motion caused by his lumbar spine and his bilateral lower extremities. However, this does not equate to ankylosis or paralysis of his nerves.  Moreover, the Board cannot find that the Veteran's bilateral knees disabilities amount to the loss or permanent loss of use of one or both feet due to a service-connected disability.

In Tucker v. West, the Court stated that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. 11 Vet. App. 369, 373 (1998). The Court also stated that in accordance with 38 C.F.R. § 4.40, the Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision. It is the Board's responsibility, not the examiner's, to determine whether "loss of use" exists. Id. However, the evidence, to include VA treatment records and examinations, show that the Veteran has not lost the use of his bilateral feet as defined in the regulations.

The Board is careful not to conflate the meanings of "loss of use of the lower extremities" under 38 C.F.R. § 3.809 (b) for purposes of entitlement to specially adapted housing and "loss of use of the feet" under 38 C.F.R. §§ 3.350 (a)(2)(i) and 4.63. As noted above, in Jensen, 29 Vet. App. 66, 78-79, the Court clarified that the standard for "loss of use of the feet" under 38 C.F.R. §§ 3.350 (a)(2)(i) and 4.63 is not the same as "loss of use of the lower extremities" for purposes of entitlement to specially adapted housing under 38 C.F.R. § 3.809 (b). That is, "loss of use of the feet" is a more stringent standard for a veteran to meet than "loss of use of the lower extremities" for purposes of entitlement to specially adapted housing. The ultimate responsibility for determining whether there is loss of use rests with the adjudicator and is a conclusion of law. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013), 38 C.F.R. § 4.10.

In addition, while the term "loss of use of a hand or foot" for entitlement to automobile financing is not defined under 38 C.F.R. § 3.808, the definition under 38 C.F.R. § 3.350 (a)(2)(i), pertaining to special monthly compensation (SMC), is generally applied. Hoggard v. Shinseki, No. 08-2188, 2009 U.S. App. Vet. Claims LEXIS 2126 (Dec. 4, 2009) (affirming the Board's use of "loss of use of a foot" under § 3.350(a)(2)(i) to deny auto/adaptive benefits under 38 U.S.C. § 3901 (2) and 38 C.F.R. § 3.808"). 

As discussed in Hoggard, "loss of use" is not found to exist just because the Veteran's foot cannot "withstand prolonged standing, walking, climbing, and driving." Id. The Veteran has to show that there was actual loss or loss of use of a foot, such as by applying the definition at 38 C.F.R. § 3.350 (a)(2). 

The Board does not dispute that the Veteran uses assistive devices such as his brace and cane. However, this finding does not equate to a finding that the Veteran was precluded from walking entirely due to loss of use of his feet. Similarly, while the VA evaluations document that the Veteran required the use of braces and a cane and other ambulatory aides, the use of assistive devices as a means of locomotion does not equal a finding that the Veteran retained no effective function of his feet. The most probative evidence of record, including as discussed above, documents that the Veteran maintained at least some use of his feet and lower extremities. The fact that the Veteran retained the ability to ambulate with the use of assistive devices, even for short distances, is clearly better than what would be experienced with suitable prosthetics, if his feet had been amputated. Moreover, upon regular VA examinations throughout the appeal period, no VA examiner found that no effective function remained in the Veteran's feet other than that which would be equally well served by an amputation stump at the site of election with use of a suitable prosthetic appliance.

The Board thus finds that a grant for automobile or other conveyance and adaptive equipment is not warranted, and the claim is denied.

Earlier Effective Date for TDIU prior to April 16, 2011

The Veteran contends that he is entitled to TDIU earlier than April 16, 2011, as he has been unable to work since April 2002. 

Procedurally, the Veteran was granted entitlement to TDIU from April 16, 2011, as the VA examiner found that it was the date in which the Veteran stopped working due to his service-connected lower back condition. 

A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. 

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. 

An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Prior to April 16, 2011, the Veteran was service connected for a lumbar degenerative joint disease with radiculopathy of his extremities at 60 percent, beginning from January 4, 2001 (except for the periods when he was assigned a temporary total disability rating), as well as separate 20 percent disability ratings for his right and left lower extremity radiculopathy. The Veteran was also service connected for left and right knee DJD disabilities, each with a 10 percent rating, as well as separate 10 percent ratings each for chondromalacia of the right and left knees (except for a period when he was assigned a temporary total disability rating for the right knee chondromalacia).  The Veteran's combined disability rating was 80 percent; therefore, he met the schedular criteria for a TDIU.

While the record shows that the Veteran was unemployed during the period prior to April 16, 2011, the question before the Board is whether the Veteran was precluded from employment because of his service connected disabilities.  

The Veteran asserted he had been experiencing intense back pains, even in 2000 when he was working as a computer programmer/analyst. He reported difficulty with standing and walking straight, and even had issues with incontinence. He ultimately stopped working on April 2, 2002, because his back pain had become unbearable, which made it difficult to get out of bed. Despite medical treatment, he has not been able to return to work as expected. See March 2006 Correspondence. The Veteran added that he has been receiving Social Security benefits since September 2002. See March 2006 VA 21-4138 Statement in Support of Claim. 

Based on the Veteran's Social Security Disability Determination, the Veteran filed for Social Security benefits in February 2003. The Social Security Administration (SSA) determined that the Veteran became disabled on March 28, 2002. 

An SSA development summary worksheet dating April 2003 noted that the Veteran indicated that he had arachnoiditis. Treatment progress notes indicated that he had mild tenderness over sacrum, slight tenderness in the mid low spine and tenderness in the right sciatic notch. The Veteran also reported knee pain. A January 2003 examination showed that the Veteran was able to sit and walk okay but had trouble driving. He had good range of motion but with mild tenderness. His November 2001 treatment records showed no evidence of recurrent disc herniation and no evidence of stenosis. It was noted that his activities of daily living are limited and that he cannot use the stairs without experiencing pain. He also needed help with housework and can lift less than 5 lbs. 

Private treatment records from February 2002 noted that the Veteran was working from home to limit his drives to just 5 or 10 minutes maximum. A February 2003 private treatment record noted that the Veteran continued to be disabled due to his inability to make the drive to work. In an October 2004 private treatment note, the Veteran's physician noted that he had been off work for the past two years because of his lumbar spine disorder.

Based on the Veteran's April 2008 VA examination for his joints, the VA examiner noted that the Veteran complained of knee pains with increased severity during flare ups. The Veteran reported that he can use a cane when walking but that he was capable of walking without it. The examiner noted that the Veteran was unemployed and had not worked since 2002. He had worked as a computer programmer and that when he was working, his knee condition did not have any effect on his job. 

An April 2010 VA examination noted that the Veteran was unemployed. He indicated that his back condition resulted in increased tardiness at work, which ultimately caused him to stop working.  

The Board finds that an earlier effective date for TDIU is warranted from March 28, 2002. The evidence of record indicates that the Veteran's lumbar spine disability with radiculopathy remained of at least equal severity since he was granted service connection from January 2001. He has consistently reported pain and discomfort to a degree in which his mobility was limited. Moreover, prolonged sitting and standing have resulted in increased pain, which adversely impacted his driving and his employment as a software engineer, ultimately causing him to stop working. 

The Board specifically notes that the Veteran filed a disability claim with the SSA. Based on its findings, the SSA found the Veteran to be disabled as of March 28, 2002.  While the Board is not bound by the SSA's determination, here it finds it persuasive in establishing the Veteran's date of entitlement to a TDIU.  Given the accompanying SSA medical treatment records, the Board finds that TDIU is warranted from March 28, 2002, but not earlier.  In the VA Forms 21-8940, Application for Increased Compensation Based on Unemployability, received in 2015 and 2017, the Veteran listed April 2, 2002, as the date he became too disabled to work.  As this is later than the date that the SSA determined the Veteran became too disabled to work, the Board resolves reasonable doubt in the Veteran's favor to award a TDIU from March 28, 2002, but no earlier, as even the Veteran does not contend he was entitled to a TDIU prior to this date.

(Continued on the next page)

 

Finally, the Board notes that the when the Board initially granted the Veteran's entitlement to a TDIU in its June 2016 decision, the Board determined the Veteran's TDIU was due solely to his lumbar spine disability with bilateral radiculopathy.  In the decision, the Board found that the Veteran had denied that his service-connected knee disabilities interfered with his employment.  Here, the Board arrives at the same conclusion.  From March 28, 2002, the Veteran is entitled to a TDIU based solely on his lumbar spine disability with bilateral radiculopathy.

 

Tiffany Dawson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Yeh, Nicole

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.