Entitlement to an initial rating in excess of 40 percent for a lumbar spine disability is denied.
Dr. Craig Bash has done thousands of case evaluations at the VA Hospital/regional office/BVA and court levels.
Complete list of BVA cases can be found at The Department of Veterans Affairs Website
(Search Dr. Bash, Craig N. Bash M.D., Dr. Craig Bash , Craig Bash, C.N.B.)
Citation Nr: 21054844
Decision Date: 09/03/21 Archive Date: 09/03/21
DOCKET NO. 14-25 618
DATE: September 3, 2021
ORDER
Entitlement to an initial rating in excess of 40 percent for a lumbar spine disability is denied.
For the period prior to January 13, 2020, an initial rating in excess of 20 percent for right lower extremity radiculopathy of the sciatic nerve is denied.
For the period prior to January 13, 2020, an initial rating in excess of 20 percent for left lower extremity radiculopathy of the sciatic nerve is denied.
Since January 13, 2020, an initial rating of 40 percent, but no higher, is granted for right lower extremity radiculopathy of the sciatic nerve, subject to the laws and regulations governing the payment of monetary benefits.
Since January 13, 2020, an initial rating of 40 percent, but no higher, is granted for left lower extremity radiculopathy of the sciatic nerve, subject to the laws and regulations governing the payment of monetary benefits.
Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome (PFS) is denied.
Entitlement to an initial rating in excess of 10 percent for left knee PFS is denied.
Entitlement to an initial rating in excess of 10 percent for right foot metatarsus adductus is denied.
Entitlement to an initial rating in excess of 10 percent for left foot metatarsus adductus is denied.
FINDINGS OF FACT
1. The Veteran's lumbar spine disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least six weeks during a 12-month period.
2. For the period prior to January 13, 2020, the Veteran's right lower extremity radiculopathy of the sciatic nerve was manifested by no more than moderate incomplete paralysis.
3. For the period prior to January 13, 2020, the Veteran's left lower extremity radiculopathy of the sciatic nerve was manifested by no more than moderate incomplete paralysis.
4. Since January 13, 2020, the Veteran's right lower extremity radiculopathy of the sciatic nerve has more nearly approximated moderately severe incomplete paralysis.
5. Since January 13, 2020, the Veteran's left lower extremity radiculopathy of the sciatic nerve has more nearly approximated moderately severe incomplete paralysis.
6. The Veteran's right knee disability was manifested by limitation of motion, pain, stiffness, crepitation, swelling, and weakness; it was not manifested by flexion limited to 30 degrees, extension limited to 10 degrees, recurrent subluxation, lateral instability, or dislocated semilunar cartilage with frequent episodes of effusion into the joint.
7. The Veteran's left knee disability was manifested by limitation of motion, pain, stiffness, crepitation, swelling, and weakness; it was not manifested by flexion limited to 30 degrees, extension limited to 10 degrees, recurrent subluxation, lateral instability, or dislocated semilunar cartilage with frequent episodes of effusion into the joint.
8. Throughout the pendency of the appeal, the preponderance of probative evidence indicates that the Veteran's right foot metatarsus adductus did not more nearly approximate a moderately severe foot injury.
9. Throughout the pendency of the appeal, the preponderance of probative evidence indicates that the Veteran's left foot metatarsus adductus did not more nearly approximate a moderately severe foot injury.
CONCLUSIONS OF LAW
1. The criteria for an initial rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. งง 1155, 5107; 38 C.F.R. งง 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242, 5243.
2. For the period prior to January 13, 2020, the criteria for a rating in excess of 20 percent for right lower extremity radiculopathy of the sciatic nerve have not been met. 38 U.S.C. งง 1155, 5107; 38 C.F.R. งง 4.7, 4.124a, Diagnostic Code 8520.
3. For the period prior to January 13, 2020, the criteria for a rating in excess of 20 percent for left lower extremity radiculopathy of the sciatic nerve have not been met. 38 U.S.C. งง 1155, 5107; 38 C.F.R. งง 4.7, 4.124a, Diagnostic Code 8520.
4. Since January 13, 2020, the criteria for a 40 percent rating, but no higher, for right lower extremity radiculopathy of the sciatic nerve have been met. 38 U.S.C. งง 1155, 5107; 38 C.F.R. งง 4.7, 4.124a, Diagnostic Code 8520.
5. Since January 13, 2020, the criteria for a 40 percent rating, but no higher, for left lower extremity radiculopathy of the sciatic nerve have been met. 38 U.S.C. งง 1155, 5107; 38 C.F.R. งง 4.7, 4.124a, Diagnostic Code 8520.
6. The criteria for a rating in excess of 10 percent for right knee PFS have not been met. 38 U.S.C. งง 1155, 5107; 38 C.F.R. งง 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5256-5263.
7. The criteria for a rating in excess of 10 percent for left knee PFS have not been met. 38 U.S.C. งง 1155, 5107; 38 C.F.R. งง 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5256-5263.
8. The criteria for a rating in excess of 10 percent for right foot metatarsus adductus have not been met. 38 U.S.C. งง 1155, 5107; 38 C.F.R. งง 4.27, 4.71a, Diagnostic Code 5284.
9. The criteria for a rating in excess of 10 percent for left foot metatarsus adductus have not been met. 38 U.S.C. งง 1155, 5107; 38 C.F.R. งง 4.27, 4.71a, Diagnostic Code 5284.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from January 1988 to January 1992 and from January 1992 to April 1993. His discharge from this last period of service has been characterized as dishonorable for VA purposes.
This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).
This case was last before the Board in November 2020, when it was remanded for additional development.
The record reflects that the Veteran was sent a letter indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, the Veteran does not have a pending hearing request. He provided testimony in a hearing with the undersigned Veterans Law Judge in February 2016. A transcript of that hearing is of record and has been considered as evidence.
While the Veteran appealed the issue of entitlement to service connection for a skin disability, that claim was granted in an April 2021 rating decision. Accordingly, that issue has been resolved and is not presently on appeal before the Board.
In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Board notes that in an October 2013 statement Dr. Bash indicated that the Veteran was unemployed due to his service-connected disabilities. As a schedular 100 percent combined rating has been in effect throughout the pendency of the appeal, a TDIU rating based on the combined effects of the Veteran's service-connected disabilities is not warranted. Additionally, the Veteran has not alleged, and the record does not suggest, that he is unemployable solely due to any one of his service-connected disabilities. See October 2013 Dr. Bash statement (indicating that "the sum of his VA disabilities" rendered him unemployable). Therefore, the issue of entitlement to TDIU is moot. See Bradley v. Peake, 22 Vet. App. 280, 293 (2008).
Increased Rating
Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. ง 1155 (2012); 38 C.F.R. ง 4.1 (2020). A claimant may experience multiple distinct degrees of disability that result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, 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).
Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. ง 4.40 (2020); see also 38 C.F.R. งง 4.45, 4.59 (2020). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).
1. Entitlement to an initial rating in excess of 40 percent for a lumbar spine disability
The Veteran contends that a higher disability rating is warranted for his lumbar spine disability.
The Veteran's lumbar spine disability is rated as 40 percent disabling under 38 C.F.R. ง 4.71a, Diagnostic Code 5010-5242 (2020). Under the General Rating Formula for Diseases and Injuries of the Spine, 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. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1.
The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that an evaluation of 40 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. An evaluation of 60 percent requires intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. ง 4.71a, Intervertebral Disc Syndrome, Note (1).
The Board recognizes that the criteria for Rating Musculoskeletal System was amended effective February 7, 2021. However, the criteria for rating the thoracolumbar spine in excess of 40 percent were not substantively changed. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. ง 4.71a, Diagnostic Codes 5235-5243).
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.
When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. ง 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. ง 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 ง 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. ง 4.71a; a separate or higher rating under ง 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 ง 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 ง 4.71a criteria.").
The Veteran was provided a VA thoracolumbar spine examination in July 2012. He reported limited flexion and noted he avoided extended standing and sitting in chairs that were low to the ground as it aggravated his lumbar spine disability. He noted that he was able to lift 15-20 pounds. He denied flare-ups that impacted function. Upon testing, the Veteran had active flexion, extension, bilateral lateral flexion, and bilateral lateral rotation but was unable perform repetitive use testing due to pain. The examiner opined that the Veteran had functional loss in the form of less movement than normal and pain on movement. The examiner indicated that the Veteran did not have IVDS of the thoracolumbar spine. The examiner indicated that, aside from the Veteran's bilateral sciatic radiculopathy, there were no neurologic abnormalities or findings related to his lumbar spine disability.
An October 2013 evaluation from Dr. Bash noted that the Veteran had active lumbar motion in all spheres without any additional loss in motion following repetitive use testing. The Veteran had tenderness to palpation, muscle spasm, and guarding. Dr. Bash stated that the Veteran had lumbar spine motion limited by pain, weakness, fatigue, lack of endurance, incoordination, stiffness, unstable station, and spasms. He opined that the Veteran had lumbar spine urinary frequency, which was consistent with a neurogenic bladder secondary to his spine injury as the Veteran's records did not contain a more likely cause for his neurogenic bladder. Dr. Bash stated that the Veteran required daily bed rest to take the axial loads of his spine and right knee and provide pain relief.
At his February 2016 hearing, the Veteran testified that his back hurt but was not "completely frozen" to the point that he was unable to bend at all.
The Veteran was provided a VA thoracolumbar spine examination in January 2020. He reported weekly severe flare-ups of back pain, which lasted for day, and were precipitated by movement and increased activity. He reported difficulty bending, prolonged periods of sitting, lifting more than 5 to 10 pounds, and an inability to walk more than a few minutes. Upon testing, the Veteran had active flexion, extension, bilateral lateral flexion, and bilateral lateral rotation with both initial testing and repetitive use testing. The examiner opined that even considering repetitive use over time and flare-ups, the Veteran would maintain at least 10 degrees of motion in all spheres. The examiner opined that the Veteran's lumbar spine disability resulted in instability of station and interference with sitting, locomotion, and station. The examiner noted that the Veteran's lumbar spine disability had not resulted in acute signs and symptoms that required physician prescribed bedrest. The examiner indicated that, aside from the Veteran's bilateral lower extremity radiculopathy, there were no neurologic abnormalities or findings related to the Veteran's lumbar spine disability.
A review of the Veteran's VA treatment records regarding his lumbar spine disability reflects an overall disability picture that is consistent with the VA examination reports and private evaluation. Specifically, they indicate that the Veteran had back pain, stiffness, and reduced range of motion. There is no indication that he had unfavorable ankylosis of his entire thoracolumbar spine or required physician prescribed bedrest.
Upon reviewing the evidence of record, the Board finds that a rating in excess of 40 percent is not warranted as the evidence is against finding that the Veteran's lumbar spine disability was manifested by unfavorable ankylosis. The Board acknowledges the Veteran's lay reports of ongoing low back pain and difficulty sitting and standing for long periods of time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine.
Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the evidence of record does not indicate that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. ง 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.
The Board acknowledges the October 2013 evaluation from Dr. Bash noting that the Veteran "needs daily bed rest in order to take the axial loads of his spine/right knee and provide some pain relief." As an initial matter, the Board notes that finding is inconsistent with the other evidence of record, which indicated that the Veteran did not have incapacitating episodes requiring physician prescribed bed rest. See July 2012 and January 2020 VA examination reports. Likewise, his VA treatment records are silent for evidence of physician prescribed bed rest. Additionally, Dr. Bash expressly stated that his opinion was "academic in nature and...not meant for medical care or treatment." As Dr. Bash stated that his opinion was not meant for medical treatment, it cannot be construed as a physician's prescription. Moreover, even assuming arguendo, it could be construed as such, it was for daily pain management for a combination of disabilities and not for "an incapacitating episode...due to a period of acute signs and symptoms" due to IVDS. For the reasons above, Dr. Bash's statement does not support finding that the Veteran's lumbar spine disability was manifested by at least six weeks of incapacitating episodes during a 12-month period.
Regarding neurological impairment, the Veteran has been granted service connection for right and left lower extremity radiculopathy of the sciatic and femoral nerves associated with his lumbar spine. His bilateral radiculopathy of the sciatic nerve will be discussed below. Regarding his radiculopathy of the femoral nerve, a June 2020 rating decision granted separate 20 percent ratings for radiculopathy of the right and left femoral nerves effective January 13, 2020. As the Veteran did not appeal that decision, those issues are not before the Board. 38 C.F.R. ง 19.20 (2020).
The Board acknowledges the October 2013 opinion from Dr. Bash indicated the Veteran had urinary frequency consistent with a neurogenic bladder secondary to his spine. Nevertheless, as Dr. Bash did not provide any rationale in support of those findings, his opinion is outweighed by the other evidence of record that consistently indicated that the Veteran does not have any nonservice-connected neurological impairments attributable to his lumbar spine disability. Specifically, the July 2012 and January 2020 VA examination reports indicated that the Veteran did not have neurologic abnormalities other than radiculopathy, including bladder problems, attributable to his lumbar spine disability. Moreover, his VA treatment records consistently indicate that he denied genitourinary problems related to urination. See e.g., April 27, 2012, November16, 2016, November 8, 2017, February 28. 2018, October 8, 2019. Accordingly, the Board finds that the weight of probative evidence is against finding that the Veteran has urinary problems attributable to his lumbar spine disability.
For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for a lumbar spine disability. In reaching the above conclusions, the Board considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. ง 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).
2. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy of the sciatic nerve
3. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy of the sciatic nerve
The Veteran's radiculopathy of the sciatic nerve has been rated under the criteria set forth in 38 C.F.R. ง 4.124a, Diagnostic Code 8520, relating to paralysis of the sciatic nerve.
Under Diagnostic Code 8520, a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve; a 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy; and a maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or very rarely, lost. 38 C.F.R. ง 4.124a, Diagnostic Code 8520.
Words such as "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. ง 4.6 (2020). Paralysis is the loss of strength or function in a part of the body. See https://medlineplus.gov/paralysis.html (last accessed July 20, 2021). The term "incomplete paralysis," with this 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. 38 C.F.R. ง 4.124a, Note at Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id.
The sciatic nerve branch includes the sciatic nerve, external popliteal nerve (common peroneal), musculocutaneous (superficial peroneal), anterior tibial nerve (deep peroneal), internal popliteal (tibial), and posterior tibial nerves.
The Veteran was provided a VA thoracolumbar spine examination in July 2012. Muscle strength, reflex, and sensory testing were within normal limits. There was no evidence of muscle atrophy. However, the Veteran reported experiencing mild numbness and moderate paresthesias and/or dysesthesias in his bilateral lower extremities. The examiner diagnosed the Veteran with moderate incomplete paralysis affecting the right and left sciatic nerve.
An October 26, 2012 record from Grand Strand Regional Medical Center notes that neurological examination revealed no motor deficits.
A November 8, 2012 VA record noted that the Veteran reported having a burning pain sensation down his legs and into his feet.
A March 19, 2013 VA podiatry record notes all epicritic sensation and muscle strength was intact bilaterally.
An October 2013 evaluation from Dr. Bash noted that the Veteran had "sensory patchy numbness" and radicular pain in both lower extremities.
A November 16, 2016 VA record notes that the Veteran reported a burning sensation in his legs but denied any weakness.
VA records from November 8, 2017 and February 28, 2018 note the Veteran denied any neurological weakness.
The Veteran was provided a VA thoracolumbar spine examination on January 13, 2020. Upon muscle strength testing, hip flexion was 5/5, knee extension and great toe extension were 4/5, and ankle plantar flexion and dorsiflexion were 3/5 bilaterally. Knee and ankle reflexes were absent bilaterally. Sensory testing was normal for the lower right extremity. Left lower extremity testing was notable for a lack of sensation in the lower leg / ankle and foot/toes and decreased sensation in the upper anterior thigh and thigh / knee. There was no evidence of muscle atrophy. The Veteran reported moderate constant pain and paresthesias / dysesthesias and severe intermittent pain and numbness in the bilateral lower extremities. He was diagnosed with moderate radiculopathy of right and left sciatic and femoral nerves.
The Veteran was also provided a VA peripheral nerves examination in January 13, 2020. He reported tingling and numbness in his buttocks, legs, and feet. He reported moderate constant pain, paresthesias / dysesthesias, and numbness and mild intermittent pain in the bilateral lower extremities. Upon muscle strength testing, knee extension was 4/5, and ankle plantar flexion and dorsiflexion were 3/5 bilaterally. Bilateral lower extremity reflexes were absent at the knees and ankles. Sensation was normal in the right lower leg / ankle, it was decreased in the right and left upper anterior thighs, right and left thighs/knees, left lower leg / ankle, left foot/toes, and it was absent in the left foot / toes. The Veteran was noted to have trophic changes attributable to his peripheral nerve condition, including shiny skin, reddened skin, and a lack of hair on the right and left lower extremities. He was noted to walk with an antalgic gait, which the examiner attributed to a combinations of the Veteran's lumbar spine disability and bilateral lower extremity radiculopathy. The Veteran was assessed with moderate incomplete paralysis of the sciatic nerve, common peroneal nerve, superficial peroneal, deep peroneal, tibial, and posterior tibial nerves. The examiner opined that the Veteran would have functional impairment in the form of difficulty walking and standing for prolonged periods secondary to pain and weakness and a tendency to stumble and trip due to his inability to feel the ground below him.
Upon review of the record, the Board finds that ratings in excess of 20 percent for right or left lower extremity radiculopathy is not warranted any time prior to January 13, 2020. Specifically, the while the Veteran reported subjective sensory symptoms, including pain, numbness, and paresthesias and/or dysesthesias, there were no objective neurological symptoms. See July 2012 (noting that muscle strength, reflex, and sensory testing were within normal limits and there was no evidence of muscle atrophy); October 26, 2012 Grand Strand Regional Medical Center record (noting no neurological motor deficits); March 19, 2013 VA podiatry record (noting epicritic sensation was intact bilaterally); VA records from November 16, 2016, November 8, 2017, and February 28, 2018 (noting a burning sensation in the Veteran's legs but no weakness).
Since January 13, 2020, the Board finds that the Veteran's right and left lower extremity radiculopathy has more nearly approximated moderately severe incomplete paralysis of the sciatic nerve. Specifically, the January 2020 VA peripheral nerve examination report noted decreased lower extremity muscle strength, absent bilateral lower extremity reflexes, and trophic changes on the right and left lower extremities. Accordingly, a 40 percent rating is warranted. See 38 C.F.R. ง 4.124a, Diagnostic Code 8520. Nevertheless, in the absence of muscle atrophy, a rating in excess of 40 percent is not warranted. Id.
The Board acknowledges that the January 2020 peripheral nerve examination report indicated that the Veteran also had incomplete moderate paralysis of the bilateral common peroneal nerve, superficial peroneal, deep peroneal, tibial, and posterior tibial. All those nerves are part of the sciatic nerve branch. Therefore, the symptoms and functional impact associated with the Veteran's moderate incomplete paralysis of these nerves is not separate and distinct from the symptoms and functional impact related to his sciatic nerve. Specifically, the incomplete paralysis of all those nerves result in the same manifestations of sensory symptoms, lower extremity weakness, decreased reflexes, and trophic changes. Accordingly, assigning separate ratings for these manifestations based on each of the identified nerves within the sciatic nerve branch would violate the rule against pyramiding as the symptoms overlap and are not distinct. 38 C.F.R. ง 4.14 (2020). Therefore, only one evaluation is allowable. While the Board considered whether a higher rating was warranted under another potentially applicable diagnostic code, the Veteran's current rating under Diagnostic Code 8520 provides that highest possible rating for incomplete paralysis. See 38 C.F.R. ง 4.124a, Diagnostic Codes 8521, 8522, 8523, 8524, and 8525.
In reaching the above conclusions, the Board considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. ง 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).
4. Entitlement to an initial rating in excess of 10 percent for right knee PFS
5. Entitlement to an initial rating in excess of 10 percent for left knee PFS
The Veteran's right and left knee disabilities have been rated under 38 C.F.R. ง 4.71a, Diagnostic Code 5260 (2020) for limitation of flexion.
As noted above, VA amended the criteria for rating disabilities of the musculo-skeletal system effective from February 7, 2021. The new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Nevertheless, Diagnostic Codes 5260 and 5261 were unchanged by the February 7, 2021 amendments.
Limitation of motion of knee joints is rated under Diagnostic Code 5260 for flexion, and Diagnostic Code 5261 for extension. 38 C.F.R. ง 4.71a, Diagnostic Codes 5260, 5261 (2020). Under Diagnostic Code 5260, flexion that is limited to 60 degrees warrants a 0 percent rating; flexion that is limited to 45 degrees warrants a 10 percent rating; flexion that is limited to 30 degrees warrants a 20 percent rating; and flexion that is limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. ง 4.71a, Diagnostic Code 5260 (2020).
Under Diagnostic Code 5261, extension that is limited to 5 degrees warrants a 0 percent rating; extension that is limited to 10 degrees warrants a 10 percent rating; extension that is limited to 15 degrees warrants a 20 percent rating; extension that is limited to 20 degrees warrants a 30 percent rating; extension that is limited to 30 degrees warrants a 40 percent rating; and extension that is limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. ง 4.71a, Diagnostic Code 5261 (2020).
Normal motion of a knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. ง 4.71, Plate II (2020).
The Veteran was provided a VA knee examination in July 2012. He reported that his knees were painful, that he was sometimes unable to bear weight, and that his walking was limited due to pain. He denied any flare-ups. He had right knee flexion to 40 degrees, left knee flexion to 60 degrees, and bilateral extension to zero degrees. The examiner noted that the Veteran was unable to perform repetitive use testing due to his body habitus and inability to sit straight on the examination table or in a chair. Upon examination, there was tenderness with palpation of the medial joint lines. The examiner indicated that the Veteran had functional impairment in the form of less movement than normal. Muscle strength and stability testing were normal. The examiner indicated that there was no evidence of instability, recurrent patellar subluxation, dislocation, any meniscal condition, or need for any assistive device for normal locomotion. The examiner opined that the Veteran's knee disabilities resulted in limitations in standing. In a September 2012 addendum opinion, the July 2012 VA examiner, clarified that there was no objective evidence of pain with motion.
An October 22, 2012 VA record notes that the Veteran reported right knee pain, stiffness, and swelling.
An October 26, 2012 record from Grand Strand Regional Medical Center notes that the Veteran's extremities were nontender, displayed no motor deficit, and exhibited normal range of motion.
An October 2013 evaluation from Dr. Bash noted that the Veteran had crepitus and pain with right and left knee motion, which limited normal use and function. Dr. Bash also stated that the Veteran required daily bed rest to take the axial loads of his spine and right knee and provide pain relief. Specific range of motion findings were not provided. He opined that the Veteran's knees should each be rated as 20 percent disabling.
A November 16, 2016 VA record notes that musculoskeletal examination revealed good range of motion in the Veteran's joints.
The Veteran was provided a VA knee examination in January 2020. He reported "cracking," intermittent swelling, and severe bilateral knee flare-ups that occurred on a weekly basis. He reported his flare-ups were precipitated by increased movement, certain movements, and sometimes "no reason." He endorsed functional impairment including difficulty going up or down stairs, increased pain with walking and prolonged sitting, and an inability to run. He had flexion to 60 degrees and extension to zero degrees, bilaterally. There was evidence of pain with motion, palpation, and weightbearing bilaterally. There was no evidence of crepitus in either knee. Repetitive use testing was performed without any additional loss in function. The examiner opined that, bilaterally, the Veteran would have flexion to 40 degrees and extension to zero degrees with repeated use over time and flare-ups. Muscle strength testing was 4/5 bilaterally. There was no evidence of muscle atrophy, instability, recurrent subluxation, dislocation, or a right or left knee meniscus condition. The Veteran denied using any assistive device due to his knee disabilities. The examiner opined that the Veteran's bilateral knee PFS resulted in disturbance of locomotion and station, including difficulty going up and down stairs, pain with walking, an inability to run, and interference with sitting and standing.
After reviewing the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for either knee as the evidence is against finding that the Veteran had flexion limited to 30 degrees. To the contrary even considering repetitive use and flare-ups, the Veteran would have, at worst, flexion limited to 40 degrees. Accordingly, a rating in excess of the currently assigned 10 percent ratings for right and left knee limitation of flexion is not warranted under Diagnostic Code 5260. Additionally, as the evidence of record is against finding that the Veteran had extension limited to 10 degrees in either knee, a separate rating under Diagnostic Code 5261 is not warranted.
The Board acknowledges the Veteran's lay reports of symptoms including pain, stiffness, crepitus, and difficulty standing and ambulating. However, even considering his lay reports of symptoms, he was consistently noted to have, at worst, right and left knee flexion limited to 40 degrees and full extension. As such, ratings in excess of the currently assigned 10 percent are not warranted based on range of motion.
The Board also acknowledges Dr. Bash's assertion that the Veteran's knees should each be rated as 20 percent disabling. Nevertheless, as Dr. Bash did not support that finding with any rationale as to how the Veteran's right and left knee disabilities met the criteria for a 20 percent rating, namely, with range of motion or other pertinent medical findings, that opinion is not probative.
The Board has also considered whether the Veteran is entitled to a higher or separate rating under 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. ง 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Nevertheless, the medical evidence consistently indicated that the Veteran did not have ankylosis, recurrent subluxation, lateral instability, a semilunar (meniscal) condition, tibia or fibula impairment, or genu recurvatum. As such, Diagnostic Codes 5256, 5257, 5258, 5259, 5262, or 5263 are not applicable.
In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against ratings in excess of those assigned, that doctrine is not applicable. See 38 U.S.C. ง 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).
6. Entitlement to an initial rating in excess of 10 percent for a right foot metatarsus adductus
7. Entitlement to an initial rating in excess of 10 percent for a left foot metatarsus adductus
The Veteran's right and left foot metatarsus adductus have been rated under Diagnostic Code 5284. The Board notes that metatarsus adductus is a "medial deviation (adduction) of the forefoot while the hindfoot remains in a normal position, thus forming a "C" shape, or concavity of the medial aspect of the foot." See https://www.uptodate.com/contents/lower-extremity-positional-deformations (last accessed July 20, 2021).
As noted above, VA amended the criteria for rating disabilities of the musculo-skeletal system effective from February 7, 2021. However, Diagnostic Code 5284 was not changed by the February 7, 2021 amendments.
Diagnostic Code 5284, for other foot injuries, is a general Diagnostic Code under which a variety of foot injuries not otherwise listed in the rating schedule may be rated. 38 C.F.R. ง 4.71a, Diagnostic Code 5284 (2020). Under Diagnostic Code 5284, foot injuries that are shown to be moderate in severity are assigned a 10 percent disability rating. Id. Moderately severe foot injuries are assigned a 20 percent disability rating. Id. Severe foot injuries are assigned a 30 percent disability rating. In instances where the foot injury has resulted in actual loss of use of the foot, a schedular maximum 40 percent disability rating is warranted. Id.
The words "moderate," "moderately severe," and "severe" are not defined in Diagnostic Code 5284. Rather than applying a mechanical formula, the Board must evaluate all the evidence such that its decision is "equitable and just." 38 C.F.R. ง 4.6.
The Veteran was provided a VA foot examination in July 2012. The examination report noted diagnoses of metatarsus adductus and fracture of the fourth and fifth metatarsals. The Veteran reported severe callous formation, intermittent swelling of his feet, and the need to wear compression stockings. However, the examiner indicated his swelling and need for compression stockings was for his venous insufficiency and not attributable to his service-connected metatarsus adductus. The Veteran denied requiring any assistive devices. The examiner noted that the only pertinent physical finding, signs, or symptoms related to the Veteran's diagnosis was congenital metatarsus adductus (metatarsus varus). The examination report was silent for any signs or symptoms related to his metatarsus adductus and the examiner opined that the Veteran's congenital metatarsus adductus did not result in any functional impact on the Veteran's ability to work.
A November 8, 2012 VA record noted that the Veteran was prescribed "inserts / shoes" for his flat feet.
A March 19, 2013 VA podiatry record notes that the Veteran had pain with deep palpation of the lateral left foot but had no pain with weight bearing or ambulation. He was assessed with pronation syndrome, bilateral foot pain, left foot tendonitis, and hammer toes. X-rays revealed healed remote fractures of the proximal fourth and fifth metatarsal and hallux valgus. The record is entirely silent for any findings or symptoms attributable to the Veteran's metatarsus adductus.
An October 2013 evaluation from Dr. Bash noted that the Veteran had a history of a fracture of his proximal fourth and fifth metatarsals of the left foot. Dr. Bash noted that examination revealed pain with deep palpation laterally on his left foot and pain at the bottom of the right foot with palpation that was consistent with bilateral plantar fasciitis. Dr. Bash stated that the Veteran wore specially designed shoes to accommodate his foot problems, that he walked with a limp, had abnormal shoes soles, used inserts for arch supports but nevertheless had plantar fasciitis pain. Dr. Bash did not detail any findings or symptomatology attributable to the Veteran's service-connected right and left metatarsus adductus.
At his February 2016 hearing, the Veteran testified that his feet were swollen, that he was prescribed inserts and special shoes, and had to see his podiatrist frequently.
A May 11, 2018 VA record notes that the Veteran requested arch supports to help him walk better. He was assessed with moderate pes planus and provided arch supports. The record was entirely silent for any mention of the Veteran's service-connected right and left metatarsus adductus.
An October 26, 2018 VA podiatry record notes that Veteran reported his feet were "killing" him. It was noted that his custom inserts were too weak to provide plantar support. He was assessed with fissures. The record was entirely silent for any mention of the Veteran's service-connected right and left metatarsus adductus.
VA podiatry records from December 10, 2018 through January 30, 2019 note that the Veteran had pain at the plantar left foot area near the 4th and 5th metatarsal base. He was noted to have a mild to moderate protrusion in that area which caused increased weightbearing stress. It was noted that x-rays showed old healed metatarsal fractures in the area of his reported pain. A December 2, 2019 VA podiatry record noted that the Veteran had right heel pain at the fascia-calcaneus attachment site. It was noted that his orthotics were not providing proper fascia support. He was assessed with right plantar fasciitis and provided custom orthotics.
The Veteran was provided a VA foot examination in January 2020. He was diagnosed with bilateral metatarsus adductus and left foot fracture of the proximal fourth and fifth metatarsals. The Veteran reported foot pain, which he described as a dull aching, that was worse with weight bearing and increased walking or standing. He endorsed moderate flare-ups that occurred a few times per month and were precipitated by increased walking or standing. The Veteran was noted to have chronically compromised weight-bearing and require orthotics. The examiner noted bilateral foot pain with physical examination, movement, and weight-bearing. He was also noted to have disturbance of locomotion, interference with standing, and a lack of endurance. The examiner noted that the Veteran required bilateral shoe inserts for his foot conditions but did not state which of the Veteran's foot condition necessitated the inserts. The examiner indicated that there was no evidence of pain with motion or non-weight bearing of either foot. There was evidence of bilateral foot pain with weight bearing. The examiner opined that the Veteran's bilateral foot disabilities were akin to a moderate foot injury.
Upon review of the evidence, the Board finds that the criteria for a rating in excess of 10 percent have not been met for either foot. While VA podiatry records note ongoing foot pain and the need for orthotics, those symptoms were consistently attributed to diagnoses other than the Veteran's metatarsus adductus. In this regard, the VA treatment records or private evaluation report from Dr. Bash consistently indicated that the Veteran's right and left foot symptomatology, impairment, and need for orthotics was related to his non-service-connected disabilities including bilateral pes planus, bilateral plantar fasciitis, left foot tendonitis, and hammer toes. While the VA treatment records noted that service-connection was in effect for right and left metatarsus adductus, none of the VA records, including the podiatry records, ever attributed any of the Veteran's foot symptomatology to that diagnosis. Likewise, the July 2012 VA examination report was silent for any signs or symptoms related to his metatarsus adductus and the examiner opined that it did not result in any functional impact on the Veteran's ability to work.
With regard to the January 2020 VA examination report, the VA examiner noted the Veteran's right and left foot symptomatology but did not acknowledge or differentiate between the symptoms attributable to the Veteran's service-connected his metatarsus adductus, his separately service-connected left foot metatarsal fractures, and his nonservice-connected foot disabilities. Specifically, the other evidence of record consistently indicated that the Veteran's need for orthotics was due to his plantar fasciitis and pes planus. Nevertheless, even considering the totality of the Veteran's right and left foot symptomatology for the sake of argument, the examination report indicated that ratings in excess of 10 percent were not warranted as the Veteran's symptoms did not more nearly approximate a moderately-severe foot injury. See Mittleider v. West, 11 Vet. App. 181 (1998).
Specifically, the examiner indicated that the Veteran's symptoms consisted of a dull aching, moderate flare-ups a few times per month, compromised weight-bearing, and a lack of endurance do not more nearly approximate a moderately severe foot injury. Considering the above, the Board finds that the evidence indicates that the Veteran's right and left foot metatarsus adductus manifested in, at most, symptoms comparable to a moderate foot injury.
In sum, the preponderance of the evidence is against assigning ratings in excess of 10 percent for the Veteran's right or left foot metatarsus adductus, and the appeals are denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. ง 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).
Extraschedular Consideration
As the matter has been raised by the Veteran's representative in a June 2021 correspondence, the Board has also considered whether the disability picture for the Veteran's lumbar spine disability, right and left knee PFS, radiculopathy, and metatarsus adductus warrant extraschedular ratings.
Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. ง 1155; 38 C.F.R. ง 4.1.
Ratings shall be based, as far as practicable, upon the average impairments of earning capacity. 38 C.F.R. ง 3.321(b). To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, VA may assign an extraschedular rating commensurate with the average impairment of earning capacity due exclusively to that disability. Id. An extraschedular rating may not be assigned based on the combined effects of multiple service-connected disabilities. See 82 Fed. Reg. 57830 (Dec. 8, 2017) (eff. Jan. 8, 2018); see also Thurlow v. Wilkie, 30 Vet. App. 231, 239-40 (2018) (holding that applying the amendment barring extraschedular ratings based on the combined effect of multiple service-connected disabilities to all claims pending before VA, the Court, or the Federal Circuit on January 8, 2018, did not have an impermissible retroactive effect).
The governing norm in these exceptional cases is a finding that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. ง 3.321(b). Extraschedular ratings are only appropriate after VA has exhausted all other tools for a disability rating, whether direct, secondary, or analogous ratings. See Long v. Wilkie, 33 Vet. App. 167, 173-75 (2020). "[W]here a disability proves capable of evaluation by conventional means, it cannot be deemed exceptional." Id.
In the June 2021 correspondence, the representative asserted that the fact the Veteran's lumbar spine motion is "limited by pain, weakness, fatigue lack of endurance, incoordination, stiffness and spasms," that Dr. Bash opined that "both knees should be at 20%," and that the Veteran had crepitus in his ankles, symptoms consistent with bilateral plantar fasciitis, required special shoes, and walked with a limp contradicted VA's finding that his disabilities were neither exceptional nor unusual. No specific argument was made as to why the Veteran's radiculopathy presented an unusual or exceptional disability picture.
The Veteran's lumbar spine, knee, and foot disabilities all affect the musculoskeletal system. The rating criteria for musculoskeletal disabilities under 38 C.F.R. ง 4.71a, contemplates symptoms such as pain, fatigue, incoordination, and decreased range of motion that interfere with and cause difficulty with activities of daily living, such as sitting, standing, and ambulating. While difficulties with tasks, such as those described, are not a "symptom" set forth in any portion of the Rating Schedule, it is nevertheless a result of the same symptoms considered in the diagnostic codes and applicable regulations, specifically pain, painful motion, limitation of motion, fatigue, and incoordination. Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011) (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. งง 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria). Thus, the Veteran's symptoms and functional impairment cited by the representative as evidence of an exception or unusual disability picture for the Veteran's lumbar spine, right and left knee PFS, and right and left metatarsus adductus are results contemplated by the rating criteria as it is based on the same symptomatology.
Regarding Dr. Bash's statement that the Veteran's knee disabilities warranted a 20 percent rating, that statement is not supported by any rationale or explanation as to why the Veteran's symptoms presented an unusual or exceptional disability picture. Therefore, it is not probative.
To the extent that the representative cited ankle crepitus and plantar fasciitis symptoms as a basis for finding an exceptional or unusual disability related to the Veteran's right and left metatarsus adductus, those "symptoms" pertain to a separate diagnosis or body part, and have not been attributed to the Veteran's metatarsus adductus. Accordingly, the symptoms cannot be considered in assessing whether the disability picture presented by his metatarsus adductus is so unusual or exceptional as to render the assigned schedular rating inadequate. If the Veteran wishes to file a claim for service connection for those disabilities, he should do so with the RO by filing the appropriate form.
Regarding the Veteran's radiculopathy, as noted above, the representative did not provide any argument of how the Veteran's symptoms resulted in an exceptional or unusual disability picture. Likewise, the Board cannot find any basis to support such a finding. The Veteran's radiculopathy resulted in weakness, diminished or absent reflexes, trophic changes, and sensory disturbances, including pain, numbness, and paresthesia. Such symptoms are contemplated by the rating criteria. See 38 C.F.R. ง 4.120 (2020) (stating in rating peripheral nerve injuries and their residuals attention should be given to the relative impairment in motor function, trophic changes, and sensory disturbances).
As such, the Board finds that all the Veteran's symptoms for lumbar spine disability, right and left knee PFS, metatarsus adductus, and radiculopathy are contemplated by the Rating Schedule. As such, the evidence does not support the proposition that the Veteran's disabilities presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. ง 3.321(b)(1). Accordingly, referral for extraschedular consideration is not warranted.
K. A. BANFIELD
Veterans Law Judge
Board of Veterans' Appeals
Attorney for the Board J. Anderson
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. ง 20.1303.