URINARY INCONTINENCE

B. MULLINS · 2025 · Case ID: A25005816

MIXED

Summary

The veteran, who served honorably in the U.S. Army from February 1995 to January 1999, appeals rating decisions concerning bladder incontinence, sciatic radiculopathy, left knee osteoarthritis, and unspecified depressive disorder. The Board granted service connection for stress urinary incontinence secondary to service-connected lumbar radiculopathy, finding the January 2022 VA examination sufficiently linked the conditions and resolved doubt in the veteran's favor. The Board also granted service connection for sciatic radiculopathy, right lower extremity, with an effective date of January 18, 2022, finding this date supported by the medical evidence, and denied the veteran's request for an earlier effective date based on a March 2021 private medical record that lacked a specific radiculopathy diagnosis. For left knee osteoarthritis with limited flexion, the Board granted an increased rating of 20 percent for the period of August 11, 2021, to February 2, 2023, based on the January 2022 VA examination documenting flexion limited to 20 degrees during a flare-up, but found the evidence did not support a higher rating. Finally, the Board denied an increased rating for unspecified depressive disorder for the period of February 16, 2021, to February 2, 2023, finding the veteran's symptoms, as documented in the April 2021 VA examination, more closely approximated the criteria for a 50 percent rating rather than the 70 percent rating sought.

Rationale

Competent evidence shows lumbar radiculopathy caused stress urinary incontinence.; January 2022 VA exam diagnosed stress urinary incontinence and found it etiologically related to service-connected lumbar radiculopathy.; Benefit of the doubt afforded to the veteran due to lack of credible medical opinion against service connection.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5262

Docket No.

230302-327786

Full Decision Text

Citation Nr: A25005816
Decision Date: 01/23/25 Archive Date: 01/23/25

DOCKET NO. 230302-327786
DATE: January 23, 2025

ORDER

Entitlement to service connection for stress urinary incontinence as secondary to lumbar radiculopathy is granted.

Entitlement to an effective date of January 18, 2022, and not earlier, for the grant of service connection for sciatic radiculopathy, right lower extremity is granted.

Entitlement to an increased disability rating of 20 percent, and no higher, for left knee joint osteoarthritis with limited flexion, from August 11, 2021, to February 2, 2023, is granted.

Entitlement to a disability rating in excess of 50 percent for unspecified depressive disorder from February 16, 2021, to February 2, 2023, is denied.

FINDINGS OF FACT

1. The competent evidence of record shows that the Veteran's lumbar radiculopathy caused the Veteran's stress urinary incontinence.

2. The competent medical evidence of record shows that entitlement to service connection for sciatic radiculopathy, right lower extremity arose on January 18, 2022.

3. There is no evidence dated earlier than January 18, 2022, that may be interpreted as a formal or informal claim of entitlement to service connection for sciatic radiculopathy right lower extremity.

4. For the period of August 11, 2021, to February 2, 2023, the Veteran's left knee joint osteoarthritis with limited flexion was manifested by flexion to 20 degrees.

5. For the period of February 16, 2021, to February 2, 2023, the Veteran's unspecified depressive disorder was manifested by occupational and social impairment with reduced reliability and productivity.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for stress urinary incontinence as secondary to lumbar radiculopathy have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for an effective date of January 18, 2022, and not earlier, for the grant of service connection for sciatic radiculopathy, right lower extremity have been met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.156, 3.159, 3.400.

3. The criteria for an increased disability of 20 percent, and no higher, for left knee joint osteoarthritis with limited flexion, from August 11, 2021, to February 2, 2023, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Codes (DCs) 5256-5263.

4. The criteria for a disability rating in excess of 50 percent for unspecified depressive disorder from February 16, 2021, to February 2, 2023, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.130, DC 9435.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably in the United States Army from February 1995 to January 1999. Among his awards, the Veteran received the National Defense Service Medal.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) regional office (RO) dated March 2022 and June 2022.

In the March 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the March 2022 and June 2022 agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the
) dated March 2022 and June 2022.

In the March 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Veteran's representative attached a correspondence to the March 2023 VA Form 10182 which outlined the specific issues the Veteran wishes to appeal.

The Veteran indicated that he wishes to appeal the March 2022 rating decision on several grounds. First, the Veteran wishes to appeal on the grounds that the rating decision did not address service connection for bladder incontinence. The Veteran argues that the January 2022 VA examination provides a diagnosis of stress urinary incontinence and raises the possibility that the Veteran's incontinence is service-connected. As such, the Veteran contends that the VA erred in not addressing the issue of service connection for bladder incontinence in the March 2022 rating decision.

The Veteran additionally appeals the March 2022 rating decision on the grounds that the Veteran contends that he is entitled to an earlier effective date for service connection for sciatic radiculopathy, right lower extremity.

Finally, the Veteran appeals the March 2022 rating decision on the grounds that the Veteran contends that he is entitled to a disability rating in excess of 10 percent for left knee joint osteoarthritis with limited flexion. In the March 2022 correspondence, the Veteran's representative specifically requests a 20 percent rating for left knee joint osteoarthritis with limited flexion.

The Veteran appealed the June 2022 rating decision for the reason that the Veteran contends that he is entitled to a disability rating in excess of 50 percent for unspecified depressive disorder.

Service connection.

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a).

Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303.

Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d).

Service connection may also be established on a secondary basis for a disability which is proximately due to, or aggravated by, a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or
disability which is proximately due to, or aggravated by, a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether evidence persuasively weighs against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran.

Entitlement to service connection for stress urinary incontinence.

The Veteran contends that his stress urinary incontinence was caused by his service-connected lumbar radiculopathy. Having carefully reviewed the evidence of record, and considering all pertinent laws and regulations, the Board finds that the Veteran's contention is warranted.

As stated previously, secondary service connection requires a showing of a current disability, evidence of a service-connected disability, and evidence establishing a connection between the service-connected disability and the current disability. The January 2022 VA examination confirms a diagnosis of stress urinary incontinence. Further, the March 2022 rating decision granted service connection for sciatic radiculopathy right lower extremity and grants an increased disability rating for sciatic radiculopathy left lower extremity. Thus, the remaining issue to be decided is whether there is a causal connection between the Veteran's low back radiculopathy and his bladder incontinence.

The Veteran attended a VA examination in January 2022. The examiner provided a diagnosis of stress urinary incontinence and found that the Veteran's incontinence is etiologically related to his service-connected lumbar radiculopathy. In support of his position, the examiner found that the Veteran initially injured his low back on active duty in 1996 or 1997. The examiner indicated that the Veteran's low back symptoms progressed to the point where he developed left leg radiculopathy in 1998 and stress urinary incontinence in December of 2021. The examiner indicated that the Veteran reported that he has had several additional close calls with incontinence and would like to be able to urinate more frequently.

The Veteran was afforded VA examinations for his back in September 2018, December 2019, September 2021, and February 2022. However, these examinations do not address the Veteran's incontinence. The Board finds that there is no additional medical opinion on file addressing the Veteran's incontinence.

Considering the January 2022 VA examination and the history the Veteran provided at the exam, the lack of a credible medical report opining against service connection and resolving all reasonable doubt in favor of the Veteran, service connection for stress urinary incontinence as secondary to lumbar radiculopathy is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Earlier effective dates.

The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110 (a). The implementing regulation clarifies this to mean that the effective date of an award of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400. In the case of supplemental claims received more than one year after an AOJ decision, the effective date of an award may be "[no] earlier than the date of receipt of the supplemental claim." See 38 U.S.C. § 5110 (a)(3). There is no provision in either statute or VA regulations that allows for an earlier effective date for a previously denied claim unless a clear and unmistakable error (CUE) was committed in a prior decision, or unless the new
regulation clarifies this to mean that the effective date of an award of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400. In the case of supplemental claims received more than one year after an AOJ decision, the effective date of an award may be "[no] earlier than the date of receipt of the supplemental claim." See 38 U.S.C. § 5110 (a)(3). There is no provision in either statute or VA regulations that allows for an earlier effective date for a previously denied claim unless a clear and unmistakable error (CUE) was committed in a prior decision, or unless the new and relevant evidence required to readjudicate the claim resulted from receipt of additional relevant service department records. See 38 U.S.C. § 5110 (i); 38 C.F.R. §§ 3.105, 3.156 (c).

If VA receives a complete application form prescribed by the Secretary, appropriate to the benefit sought, within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155 (b). The preamble to 38 C.F.R. § 3.155 explicitly excludes the intent to file framework from supplemental claims. However, in the case of Military-Veterans Advocacy v. Sec'y of Veterans Affairs, 7 F.4th 1110 (Fed. Cir. 2021), the United States Court of Appeals for the Federal Circuit determined that this exclusion of supplemental claims was invalid.

Entitlement to an effective date of January 18, 2022, and not earlier, for service connection for sciatic radiculopathy, right lower extremity.

The Veteran contends that he is entitled to an earlier effective date for service connection for sciatic radiculopathy, right lower extremity. Having carefully reviewed the evidence of record, and considering all pertinent laws and regulations, the Board finds that the Veteran's contention is warranted.

Initially, the Veteran was awarded service connection for sciatic radiculopathy right lower extremity with an effective date of February 28, 2022, by way of a March 2022 rating decision.

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that January 18, 2022, is the correct date for the grant of service connection for sciatic radiculopathy, right lower extremity. While the Veteran has generally alleged that he is entitled to an effective date earlier than January 18, 2022, for his award of service connection, there is no basis under the governing legal criteria to establish that he is legally entitled to an effective date earlier than January 18, 2022.

The Board observes that the laws and regulations governing effective dates are clear. For claims of entitlement to service connection, the effective date will be the day following separation from active service or date entitlement arose if the claim is filed within one year of discharge from service; otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(i). In this case, the Veteran did not file a claim for service connection for sciatic radiculopathy right lower extremity. Rather, a January 18, 2022, VA examination diagnosed the Veteran with lumbar radiculopathy which emanated from an in-service low back injury. The examiner indicated that the Veteran's low back symptoms have worsened over time. The examiner found that, initially, the Veteran developed left radicular pain which eventually evolved into bilateral radiculopathy. Subsequently, a February 2022 VA examination provided a diagnosis of bilateral lower extremity radiculopathy and took a history of an in-service onset. Subsequent to the February 2022 medical opinion, the VA issued a March 2022 rating decision which awarded service connection for sciatic radiculopathy right lower extremity with an effective date of February 28, 2022, the date of the February 2022 VA examination. The rating decision specified that February 28, 2022, is the date the medical evidence establishes entitlement arose. However, in light of the foregoing, the Board finds that the medical evidence establishes January 18, 2022, as the date entitlement arose based on the January 18, 2022, VA examination.

The Veteran's representative submitted a correspondence attached to the March 2023 VA Form 10182 through which the Veteran requests an earlier effective date of March 2021 for service connection for sciatic rad
rating decision which awarded service connection for sciatic radiculopathy right lower extremity with an effective date of February 28, 2022, the date of the February 2022 VA examination. The rating decision specified that February 28, 2022, is the date the medical evidence establishes entitlement arose. However, in light of the foregoing, the Board finds that the medical evidence establishes January 18, 2022, as the date entitlement arose based on the January 18, 2022, VA examination.

The Veteran's representative submitted a correspondence attached to the March 2023 VA Form 10182 through which the Veteran requests an earlier effective date of March 2021 for service connection for sciatic radiculopathy right lower extremity. The Veteran contends that a March 5, 2021, private medical record constitutes the earliest date the medical evidence shows that entitlement arose.

The Board finds that the Veteran's contention is not warranted. Although the March 5, 2021, medical record does take a history of chronic back pain which radiates to the lateral hips and hamstrings, this record does not provide a diagnosis of radiculopathy or radiculitis. Rather, in the diagnosis portion of his report, the physician provides a diagnosis of: "low back pain, unspecified back pain laterality, unspecified chronicity, and unspecified whether sciatica is present." As such, this record does not identify any radicular diagnosis pertaining to the Veteran's right lower extremity. The VA is not required to anticipate claims for disabilities yet to be "identified in the record by medical professionals or by competent lay evidence at the time a claimant files a claim or during its development." Brokowski v. Shinseki, 23 Vet. App. 79, 88 (2009). Accordingly, the Board finds that the March 2021 medical record does not constitute the date entitlement arose.

Further, the Veteran contends that his March 2021 VA Form 20-0995 Supplemental Claim Application raised the issue of entitlement to service connection for sciatic radiculopathy right lower extremity. The Board finds this contention without merit as the March 2021 supplemental claim specifically requests that the VA consider the conditions radiculopathy (sciatic), left lower extremity and lumbosacral strain. This form is unambiguous, and the Veteran specified the conditions he wished to be considered. Interestingly, at time Veteran submitted his supplemental claim application, the Veteran also submitted the March 2021 private medical records. Although the Veteran now contends that the March 2021 records constitute the date entitlement arose, the Veteran did not request service connection for sciatic radiculopathy right lower extremity on his supplemental claim application.

Based on the facts in this case, there is no legal basis for an effective date prior to January 18, 2022, for the award of service connection for sciatic radiculopathy right lower extremity. Specifically, the VA did not receive a formal or informal application for service connection for sciatic radiculopathy right lower extremity prior to January 18, 2022, and January 18, 2022, is the earliest date the medical evidence of record shows entitlement arose. Therefore, the VA is precluded, as a matter of law, from granting an effective date prior to January 18, 2022, for service connection for sciatic radiculopathy right lower extremity. Consequently, the Board finds that the competent evidence of record supports the assignment of an effective date of January 18, 2022, for the grant of service connection for sciatic radiculopathy right lower extremity.

Disability ratings.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Ratings are assigned according to the manifestation of symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Neither the number of symptoms nor the type of symptoms controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative, and the Board must draw fact-based conclusions as to whether those symptoms, and their severity, frequency, and duration, have caused the level of occupational and social impairment associated with a given rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Further, the Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

When the evidence is in approximate balance in the Veteran's favor or nearly equal regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Lynch v. McDonough, 21 F.4th 776 (2021).

Entitlement to an increased disability rating of 20 percent, and no higher, for left knee joint osteoarthritis with limited flexion from August 11, 2021, to February 2, 2023.

The Veteran contends that he is entitled to a disability rating in excess of 10 percent for left knee joint osteoarthritis with limited flexion from August 11, 2021, to February 2, 2023. By way of a correspondence attached to the March 2023 VA Form 10182, the Veteran has specifically requested a 20 percent disability rating for left knee joint osteoarthritis with limited flexion. After carefully reviewing the evidence of record, and considering all pertinent laws and regulations, the Board finds that the Veteran's contention is warranted.

By way of history, the Veteran was awarded a 20 percent disability rating for left knee osteoarthritis with limited flexion effective February 2, 2023, by a September 2023 rating decision. Therefore, the remaining issue to be decided is entitlement to a disability rating in excess of 10 percent for left knee osteoarthritis with limited flexion from August 11, 2021, to February 2, 2023.

Knee disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 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 DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum).

The rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 202
impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum).

The rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the former version of the diagnostic codes only; however, for the period beginning February 7, 2021, the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the claimant. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

The Board notes DCs 5256, 5258-5261, and 5263 were not affected by the February 7, 2021, amendments.

DC 5256 governs ankylosis of the knee and permits a 30 percent rating for favorable angle in full extension, or with slight flexion between 0 degrees and 10 degrees, while a 40 percent rating is called for with flexion between 10 and 20 degrees, a 50 percent rating is warranted for flexion between 20 and 45 degrees. Extremely unfavorable ankylosis, with flexion at an angle of 45 degrees or more warrants a maximum 60 percent evaluation. 38 C.F.R. § 4.71a, DC 5256.

Under the previous version of DC 5257, which addressed recurrent subluxation or lateral instability of the knee, a 10 percent rating was assigned for slight recurrent subluxation or lateral instability of a knee; a 20 percent rating was assigned for moderate recurrent subluxation or lateral instability; and a 30 percent rating was assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a.

Words such as "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6.

As of February 7, 2021, DC 5257 contains two sections for rating other impairment of the knee. The first is for recurrent subluxation or instability and the second is for patellar instability. 38 C.F.R. § 4.71a (2021).

Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31.

Under the current criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device or bracing for ambulation.

Regarding patellar instability, a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker warrants a 30 percent rating, which is the highest allowable rating for patellar instability. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, DC 5257, Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id., Note (2).

Under DC 5258, dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent evaluation. 38 C.F.R. § 4.71a (2019). Under DC 5259, symptomatic removal of semilunar cartilage warrants a 10 percent rating. 38 C.F.R. § 4.71a (2019).

Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the knee to 60 degrees, a 10 percent rating will be assigned for limitation of flexion of the knee to 45 degrees, a 20 percent rating will be assigned for limitation of flexion of the knee to 30 degrees, and a 30 percent rating will be assigned for limitation of flexion of the knee to 15 degrees. 38 C.F.R. § 4.71a (2019).

Under DC 5261, a 10 percent disability rating is warranted for knee extension limited to 10 degrees, a 20 percent disability rating is assigned for extension limited to 15 degrees, a 30 percent disability rating is assigned for extension limited to 20 degrees, a 40 percent disability rating is assigned for extension limited to 30 degrees, and a 50 percent disability rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a (2019).

Under the previous version of DC 5262, impairment of the tibia and fibula warranted a 10 percent rating where there was malunion of the tibia and fibula with slight ankle or knee disability. A 20 percent rating was warranted where there was malunion of the tibia and fibula with moderate ankle or knee disability. A 30 percent rating was warranted where there was malunion of the tibia and fibula with marked ankle or knee disability. A maximum 40 percent rating was warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a (2019).

As of February 7, 2021, DC 5262 contemplates medial tibial stress syndrome, or shin splints, assigning: a noncompensable rating for treatment less than 12 consecutive months, to one or both lower extremities; a 10 percent rating requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, to one or both lower extremities; a 20 percent rating requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, to one lower extremity; and a 30 percent rating requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, to both lower extremities. A maximum 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a (2021).

DC 5263 provides a 10 percent rating where there is evidence of acquired genu recurvatum or traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. 38 C.F.R. §
than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, to one lower extremity; and a 30 percent rating requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, to both lower extremities. A maximum 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a (2021).

The VA General Counsel held that a knee disability may receive separate ratings under diagnostic codes evaluating instability (DC 5257) and those evaluating range of motion (DCs 5003, 5010, 5256, 5260, and 5261). See VAOPGCPREC 23-97. Additionally, the General Counsel held that separate ratings under DC 5260 (limitation of flexion of a knee) and DC 5261 (limitation of extension of a knee) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004.

For rating purposes, normal range of motion in a knee joint is from 0 degree of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.").

In the case at hand, the Veteran's left knee osteoarthritis with limited flexion has been rated at 10 percent disabling for the period of August 11, 2021, to February 2, 2023, pursuant to DC 5260.

The Board notes that evaluation under DCs 5256 (knee, ankylosis), 5262 (tibia and fibula, impairment of), and 5263 (genu recurvatum) is not warranted, as the presence of ankylosis, mal- or nonunion of the tibia and/or fibula, or genu recurvatum have not been demonstrated. There has been no finding of knee ankylosis (or the functional equivalence of ankylosis), and the evidence clearly shows that the Veteran retains significant range of motion in his knees. In addition, the evidence does not show impairment of the tibia or fibula. Lacking any positive radiological evidence or a medical opinion for malunion or nonunion of the tibia and fibula, no higher rating is warranted under DC 5262. Similarly, there is no evidence of genu recurvatum. The Board notes that the Veteran has been granted service connection for left knee limitation of extension, residuals of meniscectomy left knee, and left knee instability pursuant to DCs 5261, 5258, and 5257 apart from his left knee osteoarthritis with limited flexion and the Veteran has received a separate disability evaluation for each of these conditions. As such, and in order to avoid impermissible pyramiding, the Veteran's symptoms arising from the disabilities left knee limitation of extension, residuals of meniscectomy left knee, and left knee instability are not considered at this time. 38 C.F.R. § 4.14.

The remaining issue to be decided is whether the Veteran's left knee osteoarthritis with limited flexion warrants a disability rating in excess of 10 percent pursuant to DC 5260.

The Veteran attended a VA examination in April 2014. Upon examination of the left knee, the examiner found that the Veteran's flexion was 110 degrees with painful motion commencing at 90 degrees. The examiner measured the Veteran's extension at 15 degrees. The examiner found no change in the range of motion after repetitive use testing. The examiner found no loss of muscle strength, no instability, and no subluxation.

The Veteran was afforded a VA examination in September 2018. During the course of range of motion testing, the examiner found that the Veteran suffered pain upon flexion and extension. The examiner found both flexion and extension limited to 40 degrees. The examiner found no additional loss of range of motion upon repetitive use testing. The examiner found no muscle atrophy. The examiner found no subluxation or ankylosis and slight lateral instability. The examiner indicated that the Veteran had previously undergone a left anterior cruciate ligament (ACL) reconstruction.

The Veteran attended a VA examination in February 2020. The examiner measured the Veteran's flexion and extension at 95 degrees. The examiner found no additional loss of range of motion after repetitive use testing or during flare-ups. The examiner found no evidence of ankylosis, muscle atrophy, or loss of muscle strength. The examiner also found no evidence of recurrent subluxation and indicated that he could not perform instability testing due to pain limitations. The examiner found that the Veteran underwent left knee surgery in 1997.

The Veteran was afforded an April 2021 VA examination. Although this examination was primarily directed to the Veteran's right knee, testing was also performed on the left knee. The examiner noted that the Veteran suffered from left knee pain and swelling. Upon testing, the examiner found flexion limited to 75 degrees. The examiner did not estimate range of motion measurements during flare-ups or after repeated use over time. The examiner found no evidence of muscle atrophy, ankylosis, or recurrent subluxation. The examiner indicated that the Veteran underwent a left knee surgery in 2013.

The Veteran attended a September 2021 VA examination. The examiner found the Veteran's flexion limited to 105 degrees. The examiner noted no additional limitation during flare-ups and did not provide range of motion estimates for repetitive use or repeated use over time. The examiner noted no evidence of instability, muscle atrophy, or ankylosis. The examiner noted that the Veteran underwent an arthroscopic ACL reconstruction surgery in 2013.

The Veteran was afforded a January 2022 VA examination. The examiner measured the Veteran's flexion at 20
evidence of muscle atrophy, ankylosis, or recurrent subluxation. The examiner indicated that the Veteran underwent a left knee surgery in 2013.

The Veteran was afforded a January 2022 VA examination. The examiner measured the Veteran's flexion at 20 degrees and extension at 0 degrees. The examiner indicated that passive range of motion measurements were the same. The examiner found no recurrent subluxation, instability, muscle atrophy, or ankylosis. Significantly, the examiner indicated that his examination was conducted during a flare-up and immediately after repeated use over time. The examiner noted that the Veteran reported severe flare-ups 2 to 3 times per week which last for a couple of hours. The Veteran reported his flare-ups were alleviated with rest, medications, and the use of a brace.

The Board notes that the January 2022 examination was the only examination conducted during a flare-up and immediately after repeated use over time.

The Veteran attended a February 2022 VA examination. The examiner found that the Veteran had left knee pain with weight bearing and active motion. Upon testing, the examiner measured the Veteran's flexion at 100 degrees. The examiner estimated the Veteran's flexion at 90 degrees after repeated use over time and 80 degrees during a flare-up. The examiner found no muscle atrophy, ankylosis, recurrent subluxation, or persistent instability.

The Board acknowledges the Veteran's statements in support of his claim. While the Board recognizes the Veteran's competence to describe the current severity and frequency of his symptoms, lay persons are not competent to consider complex medical questions to include assessments of the nature and severity of the symptoms for purposes of establishing an increased rating claim or render a complex medical opinion or diagnosis in the absence of proof of relevant training and expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

After reviewing the foregoing evidence, the Board finds that an increased rating of 20 percent, and no higher, for limitation of flexion pursuant to DC 5260 is warranted for the Veteran's left knee osteoarthritis with limited flexion. Specifically, the January 2022 VA examination documented that the Veteran's flexion during a flare-up was 20 degrees. Pursuant to DC 5260, limitation of flexion to 20 degrees warrants a 20 percent disability rating.

That being said, the Board finds that the Veteran's range of motion testing did not document the level of impairment required for a disability rating of 30 percent. Specifically, there is no medical evidence which documents flexion limited to 15 degrees.

This decision includes consideration of the Veteran's functional loss due to limited movement and pain. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).

The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. The Board finds that the competent evidence persuasively indicates that the Veteran's overall picture throughout the appeal period more nearly approximates that of a 20 percent disability rating and his symptoms do not more nearly reflect the frequency, severity, and duration of symptoms associated with the 30 percent rating. 38 C.F.R. §§ 4.71a, DCs 5256-5263.

Entitlement to a disability rating in excess of 50 percent for unspecified depressive disorder from February 16, 2021, to February 2, 2023.

The Veteran contends that he is entitled to a disability rating in excess of 50 percent for unspecified depressive disorder from February 16, 2021, to February 2, 2023. After carefully reviewing the evidence of record, and considering all pertinent laws and regulations, the Board finds that the Veteran's contention is not warranted.

By way of history, the Veteran's representative submitted a correspondence with the March 2023 VA Form 8120 in which the representative set forth an argument for a 70 percent disability rating for unspecified depressive disorder from February 16, 2021. Subsequently, the Veteran was awarded a 70 percent disability rating for unspecified depression from February 2, 2023, by way of an August 2023 rating decision. The remaining issue to be decided is whether the evidence of record supports a rating in excess of 50 percent for unspecified depressive disorder from February 16, 2021, to February 2, 2023.

The Veteran's unspecified depressive disorder has been rated at 50 percent from February 16, 2021, to February 2, 2023, under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9435, which is evaluated under the General Rating Formula for Mental Disorders. Under the DC, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.

The criteria for a 70 percent rating are occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships.

The criteria for a 100 percent rating are total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9435.

Under the General Rating Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).

The Board finds that the competent evidence shows that the Veteran's overall disability picture more nearly approximates the criteria for a 50 percent rating from February 16, 2021, to February 2, 2023. The Veteran was afforded a VA examination in April 2021. The examiner confirmed the diagnosis unspecified depressive disorder and found that the Veteran's depression resulted in occupational and social impairment with reduced reliability and productivity. The examiner specifically found that the Veteran suffered from a depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner indicated that the Veteran reported that he has a strained relationship with his wife of 16 years due to his temper and a lack of communication. The Veteran also reported that he has a good relationship with his 2 daughters and stays in touch with his brother and his mother. Further, the Veteran stated he has difficulty developing friendships although he has maintained a friendship with one friend from his time in service.
disorder and found that the Veteran's depression resulted in occupational and social impairment with reduced reliability and productivity. The examiner specifically found that the Veteran suffered from a depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner indicated that the Veteran reported that he has a strained relationship with his wife of 16 years due to his temper and a lack of communication. The Veteran also reported that he has a good relationship with his 2 daughters and stays in touch with his brother and his mother. Further, the Veteran stated he has difficulty developing friendships although he has maintained a friendship with one friend from his time in service. The Veteran indicated that he suffered from irritability, bouts of crying, panic attacks when in group settings, and low motivation. The examiner also indicated that the Veteran reported he is currently employed as an assistant in the local school system.

The Veteran has not submitted a medical report in support of his position. However, the Board finds the Veteran is competent to testify as to his symptomatology and the effect his depression is having on his life. A Veteran is competent to report on that of which he has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Accordingly, the Board finds the history the Veteran reported at the April 2021 VA examination credible.

Based on the April 2021 VA examination and the Veteran's reported history, the Board finds that the Veteran's unspecified depressive disorder is more appropriately characterized as 50 percent disabling. Specifically, the evidence of record documents occupational and social impairment with reduced reliability and productivity. For the period at issue, the Veteran's unspecified depressive disorder was manifested by a depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Board finds that although the Veteran indicated he had difficulty establishing and maintaining relationships, the Veteran did not describe an inability to establish and maintain relationships as exemplified by his ongoing marriage, his ongoing employment, his self-reported good relationship with his daughters, and his continuing friendship with an individual he served with. In light of these findings, the Board finds that the overall frequency, severity, and duration of the Veteran's symptoms throughout the appeal period warrants a 50 percent disability rating.

That being said, the Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 70 percent. Specifically, the evidence of record does not demonstrate that the Veteran suffers from occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships.

Similarly, the evidence of record does not demonstrate the level of impairment required for a 100 percent disability rating. Specifically, the record does not demonstrate that the Veteran's unspecified depressive disorder results in total occupational and social impairment. The evidence of record does not demonstrate gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; a persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name.

The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. The Board finds that the competent evidence persuasively indicates that the Veteran's overall picture throughout the appeal period more nearly approximates that of a 50 percent disability rating for unspecified depressive disorder and his symptoms do not more nearly reflect the frequency, severity, and duration of symptoms associated with the 70 percent rating. 38 C.F.R. §§ 4.130, DC 9435.

B. MULLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Litts, Norman W. Jr

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.

Analyze in VA Law Explorer