MALUNION OF TIBIA AND FIBULA

C. J. MCENTEE · 2022 · Case ID: 22033537

MIXED

Summary

The veteran, who served in the U.S. Army from October 1975 to September 1977, appeals the denial of increased disability ratings for his right knee, back, and right lower extremity sciatica. The Board reviewed multiple VA examinations and medical records to assess the severity of these conditions over different time periods. For the right knee, the Board found that prior to December 15, 2021, the evidence did not support a rating higher than 10 percent, but from December 15, 2021, a 20 percent rating was warranted due to functional loss and reduced range of motion. For right knee instability, a 10 percent rating was granted from January 14, 2021, based on slight instability, as objective evidence of moderate instability was lacking. For the back disability, the Board found that prior to May 10, 2012, a 10 percent rating was appropriate. From May 10, 2012, to October 4, 2021, a 20 percent rating was warranted due to muscle spasms and guarding impacting gait, but not meeting criteria for higher ratings. From October 4, 2021, a 40 percent rating was granted due to significant reduction in flexion and functional loss from pain and weakness. For right lower extremity sciatica, the Board granted a 20 percent rating from December 6, 2017, based on moderate incomplete paralysis, noting consistent findings of pain, numbness, and reduced muscle strength and sensation.

Rationale

Prior to December 15, 2021, evidence did not support a rating higher than 10 percent for slight knee disability.; From December 15, 2021, a 20 percent rating is warranted due to functional loss and reduced range of motion consistent with moderate knee disability.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

14-22 021

Full Decision Text

Citation Nr: 22033537
Decision Date: 06/08/22 Archive Date: 06/08/22

DOCKET NO. 14-22 021
DATE: June 8, 2022

ORDER

Entitlement to an initial disability rating in excess of 10 percent for the Veteran's residuals of right tibia and fibula fracture (right knee disability) is denied.

From December 15, 2021, entitlement to a 20 percent disability rating for the Veteran's right knee disability is granted.

From January 14, 2021, entitlement to a separate 10 percent disability rating for the Veteran's right knee instability is granted.

Prior to May 10, 2012, entitlement to an initial disability rating in excess of 10 percent for the Veteran's back disability is denied.

From May 10, 2012 to October 4, 2021, entitlement to a disability rating in excess of 20 percent for the Veteran's back is denied.

From October 4, 2021, entitlement to a 40 percent disability rating for the Veteran's back disability is granted.

From December 6, 2017, entitlement to an initial disability rating of 20 percent for the Veteran's right lower extremity sciatica nerve disability is granted.

FINDINGS OF FACT

1. The Veteran's right knee disability manifested as a slight disability of the tibia and fibula.

2. From December 15, 2021, the Veteran's right knee disability manifested as a moderate disability of the tibia and fibula.

3. From January 14, 2021, the Veteran's right knee disability manifested as slight instability.

4. Prior to May 10, 2012, the Veteran's back range of motion was normal, but sometimes painful.

5. From May 10, 2012 to October 4, 2021, the Veteran experienced muscle spasms and guarding that caused abnormal spinal contour or gait, and his forward flexion was at worst, 40 degrees.

6. From October 4, 2021, the Veteran's forward flexion was, at worst 20 degrees.

7. From December 6, 2017, the Veteran's right lower extremity sciatic nerve disability manifested as moderate incomplete paralysis.

CONCLUSIONS OF LAW

1. The criteria for an initial disability rating in excess of 10 percent for the Veteran's right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262.

2. From December 15, 2021, the criteria for 20 percent for the Veteran's right knee disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262.

3. From January 14, 2021, the criteria for a separate 10 percent rating for slight right knee instability have been met. 38 U.S.C. § §§ 1155, 5107; 38 C.F.R. § §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5257.

4. Prior to May 10, 2012, the criteria for an initial disability rating in excess of 10 percent for the Veteran's back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237.

5. From May 10, 2012 to October 4, 2021, the criteria for a disability rating in excess of 20 percent for the Veteran's back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237.

6. From October 4, 2021, the criteria for a 40 percent disability rating for the Veteran's back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3,
, 2012 to October 4, 2021, the criteria for a disability rating in excess of 20 percent for the Veteran's back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237.

6. From October 4, 2021, the criteria for a 40 percent disability rating for the Veteran's back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237.

7. From December 6, 2017, the criteria for an initial disability rating of 20 percent for the Veteran's right lower extremity sciatic nerve disability have been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8620.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Army from October 1975 to September 1977.

This matter came before the Board of Veterans' Appeals (Board) on appeal of rating decisions by a U.S. Department of Veterans Affairs (VA) Regional Office (RO).

In March 2018, July 2019, and August 2020, the Board remanded this matter for additional development.

In March 2018, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) to obtain any of the Veteran's outstanding VA records and private medical records. The additional medical records were added to the file but in July 2019 the Board remanded the Veteran's claims for him to receive a new VA examination. The Board determined that the previous VA examinations did not adequately consider the Veteran's functional loss or loss of range of motion on passive, weightbearing, and non-weightbearing testing. See Correia v. McDonald, 28 Vet. App. 158 (2016). Furthermore, a new examination was necessary to determine whether the Veteran experienced flareups of his back that caused additional functional limitation. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran received new VA examinations for his back and right knee disability in February 2020.

Nevertheless, in August 2020, the Board determined that another VA examination was necessary. The Board noted that the February 2020 VA examination reported that imaging studies of the Veteran's back and right leg were not performed and some of the previous records were not available for review. The examiner also provided an inadequate rationale for why passive range of motion testing could not be conducted for the Veteran's back disability. Moreover, the record was missing some of the Veteran's medical records and Social Security Administration (SSA) records.

The Veteran received new VA examinations in January 2021 and his private medical records, updated VA treatment records, and SSA records were added to the file. The VA examination for his right knee provided a thorough assessment of his disability and provided sufficient information for the Board to assesses the severity of his disability. Passive range of motion testing was completed, and the examiner stated it was the same as active range of motion. The examiner noted that the Veteran did not have flare-ups, and that as a result there would be no additional limitation of functional ability during a flare up, and his range of motion would remain normal.

In December 2021, the Veteran received a new VA examination that addressed all range of motion testing including active, passive, weightbearing, and non weightbearing for both his right knee and back disabilities. Thus, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998).

INCREASED RATING

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F
the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998).

INCREASED RATING

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3.

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connections for his right knee disability and back disability in February 2011. Fenderson v. West, 12 Vet. App. 119 (1999).

1. Right Knee Disability

The Veteran's right knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5262, for impairment of the tibia and fibula. However, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select Diagnostic Codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id.

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that are more favorable to the Veteran will be applied.

Under the old criteria for Diagnostic Code 5262, a 10 percent rating is warranted for malunion of tibia and fibula with slight knee disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262.

According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Marked" means having a distinctive or emphasized character.

As of February 7, 2021, Diagnostic Code 5262 continues to provide a rating for impairment of the tibia and fibula. The rating criteria are split into three categories: medial tibial stress syndrome (MTSS), or shin splints; malunion; and nonunion. 38 C.F.R. § 4.71a.

For MTSS, or shin spl
Diagnostic Code 5262.

For MTSS, or shin splints, a noncompensable rating is warranted for treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating is warranted where treatment is required for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating is warranted where treatment is required for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A maximum 30 percent rating is warranted where treatment is required for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities.

The Veteran's right knee disability is characterized as a tibia fracture. For malunion of the tibia and fibula, the new criteria state that the disability should be evaluated under diagnostic codes 5256, 5257, 5260, or 5261, whichever results in the highest evaluation.

A 40 percent rating is warranted for nonunion of the tibia and fibula, with loose motion, requiring brace.

Under Diagnostic Code 5260, limitation of flexion, a noncompensable rating is warranted when flexion is limited to 60 degrees. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Normal flexion is 140 degrees. 38 C.F.R. § 4.71, Plate II.

Diagnostic Code 5261 compensates for limitation of leg extension. Under this Diagnostic Code, a noncompensable rating is warranted when extension is limited to 5 degrees. A 10 percent rating is warranted when extension of the leg is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted when extension is limited to 20 degrees. A 40 percent rating is warranted when extension is limited to 30 degrees. A 50 percent rating is warranted when extension is limited to 50 degrees. 38 C.F.R. § 4.71a. Normal extension is 0 degrees. 38 C.F.R. § 4.71, Plate II.

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

Under 38 C.F.R. § 4.59, painful motion is a factor
relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

Last, Diagnostic Code 5257 contemplates instability. This rating criteria was also amended on February 7, 2021. Under the old Diagnostic Code, a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted when there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a (2020). Diagnostic Code 5257 is based upon instability and subluxation, not limitation of motion, as a result, the factors set forth in 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 do not apply. DeLuca, 8 Vet. App. 202.

As of February 7, 2021, under Diagnostic Code 5257, a diagnosis of recurrent subluxation/instability or patellar instability is required. For recurrent subluxation or instability, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.

A 20 percent rating is warranted for one of the following: a.) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation or b.) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.

A 30 percent rating is warranted for Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.

For patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent disability rating is warranted for A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker.

A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker.

In addition to the rating criteria the Board must also consider the notes. Note (1) states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet
, and the patellar tendon. Note (2) states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).

The Veteran has arthritis, which is rated under Diagnostic Code 5003. Under Diagnostic Code 5003, the disability is evaluated based upon limitation of motion of the affected join. When limitation of motion is noncompensable, a 10 percent rating is warranted when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted where there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a.

Diagnostic Code 5003 is less favorable for the right knee because there is no probative medical or lay evidence of record to show that he has incapacitating exacerbations of his arthritis, which is required for a 20 percent rating. The Veteran has not stated that he has incapacitating exacerbations and the medical evidence does not support this conclusion.

The Veteran did not have ankylosis, removal of the semilunar cartilage, ankylosis, or genu recurvatum. Therefore, Diagnostic Codes 5256, 5259, and 5263 do not apply. 38 C.F.R. § 4.71a.

The Veteran received a VA examination in April 2011. The examiner noted that there was no evidence of inflammation or pain. Additionally, there was no evidence of malunion or nonunion, but the Veteran reported that he could feel a small, bony bump in his right lower tibia. There was no evidence that the weightbearing joint was affected, no functional limitation with standing or walking.

The Veteran's next VA examination was in April 2014. The Veteran denied having pain or discomfort due to his disability. He also denied having any flareups. His range of motion was flexion to 130 degrees with normal extension, both without pain. There was no change in range of motion after repetitive testing and there was no functional limitation or loss after repetitive use.

In a December 2019 VA record he reported decreased right knee flexion. Nevertheless, at his next VA examination in February 2020, his range of motion was the same as his previous VA examination. The examiner noted that his abnormal range of motion did not contribute to functional loss, and the Veteran experienced pain with extension and weightbearing testing. There was no additional loss in his range of motion after repetitive testing. After repeated use over time his disability was impacted by pain, fatigue, and lack of endurance, but there was no change in his range of motion. The examiner noted these factors also impacted the Veteran during flareups, but the Board notes that the Veteran denied experiencing flareups. He had no pain with non-weightbearing testing. Additionally, his passive range of motion, as well as pain level, was the same as his active range of motion.

The Veteran's next VA examination was in January 2021. He reported having cramps in his leg since last year and experienced weakness. He stated that he had fallen a couple of times in the yard because of his knee. He continued to deny experiencing flareups or functional loss. His range of motion for both flexion and extension were normal (extension of 0 degrees and extension of 140 degrees) and without pain. There was also no pain with weight bearing. After repetitive use testing there was no change in his range of motion or functional loss. After repeated use over time there was no functional loss nor issue with any of the DeLuca factors. The examiner noted that the Veteran's instability and right calf cramping were additional factors contributing to his disability. He tested normal on all stability testing. The Veteran had no pain with non-weight bearing testing and his range of motion was also normal on passive range of motion testing. The examiner found
to deny experiencing flareups or functional loss. His range of motion for both flexion and extension were normal (extension of 0 degrees and extension of 140 degrees) and without pain. There was also no pain with weight bearing. After repetitive use testing there was no change in his range of motion or functional loss. After repeated use over time there was no functional loss nor issue with any of the DeLuca factors. The examiner noted that the Veteran's instability and right calf cramping were additional factors contributing to his disability. He tested normal on all stability testing. The Veteran had no pain with non-weight bearing testing and his range of motion was also normal on passive range of motion testing. The examiner found that passive range of motion was the same as active range of motion.

The Veteran's most recent VA examination was in December 2021. He continued to deny experienced flareups, but he experienced functional loss. He had difficulty walking short distances with increased pain and could not sit for more than 20 to 30 minutes at a time. He was unable to exercise and had increased difficulty with climbing stairs. He experienced pain with household chores and doing yardwork. He reported issues with instability and that his leg would give out on him when walking. His range of motion was abnormal, and that abnormal range of motion contributed to the functional loss described above. The Veteran had flexion to 90 degrees with normal extension; he experienced pain with both flexion and extension. He had no change of range in his motion during passive testing but there was pain. There was no additional loss of function or range of motion after 3 repetitions. After repeated use over time the Veteran's range of motion was impacted by pain, fatigability, weakness, lack of endurance, and his flexion decreased to 50 degrees. He did not have ankylosis and tested normal on all stability tests. He also did not use assistive devices.

Diagnostic 5262

Prior to December 15, 2021

The Board finds that the evidence is against a rating in excess of 10 percent for the Veteran's right knee disability. The Board acknowledges the Veteran's lay reports of symptoms. At the February 2020 VA examination, the examiner noted that pain, fatigue, and lack of endurance impacted his disability but did not reduce his range of motion or cause functional loss. Likewise, at his January 2021 VA examination, the Veteran only reported instances of instability, but no evidence of functional loss. Therefore, even considering the Veteran's lay reports of symptoms the Veteran's disability would not result in symptoms more nearly approximating malunion of the tibia or fibula with moderate knee disability.

Moreover, in considering, the amended criteria, the Board finds that the evidence is against a rating in excess of 10 percent for the Veteran's right leg disability.

From December 15, 2021

The Veteran's most recent VA examination provides evidence that an increased in his disability rating is warranted. The December 2021 VA examiner noted that the Veteran's right knee disability caused functional loss and reduced his range of motion. Furthermore, pain, fatigability, weakness, and lack of endurance impacted his disability and caused a further decrease in his flexion. He also continued to discuss instability issues which will be discussed further below. Therefore, in considering all the evidence the Board finds that the Veteran's disability is best characterized by a moderate knee disability such that a 20 percent rating is warranted.

The Board finds that the Veteran's right knee disability does not meet the criteria of marked to warrant a 30 percent rating. While he does have an abnormal range of motion that causes functional loss, as noted further below, the functional loss he experienced was not completely attributed to his right knee disability. Additionally, while his flexion range of motion was reduced, his extension was still normal. Therefore, the Board finds that from December 15, 2021, the Veteran's right knee disability is aptly rated at 20 percent.

As discussed further below, the Board finds that a rating higher than 20 percent is not warranted under Diagnostic Codes 5257, 5260, or 5261, such that it would benefit the Veteran to be rated under another Diagnostic Code.

Diagnostic Code 5257

The Veteran reported instability symptoms at his January 2021 VA examination. At that examination he reported feeling weakness and that he fell because of his knee. The Veteran also reported instability issues at his December 2021 VA examination.

Diagnostic Code 5257

The Veteran's complaints are competent and credible. The Board finds that this constitutes slight instability, which is contemplated by a 10 percent rating. Instability was not clinically found at his VA examinations or noted in his medical records. At each VA examination, the Veteran's right knee tested normal for anterior instability, posterior instability, medial instability, and lateral instability. Additionally, a history of instability or subluxation was denied by all examiners. His medical records do not show complaints of or findings of instability, and the Veteran has not provided a lay description of the frequency, severity, and duration of any instability. Therefore, his disability picture is most accurately described as slight as opposed to moderate.

Objective evidence is not required to assign a 20 percent rating for instability. English v. Wilkie, 30 Vet. App. 347 (2018). Nevertheless, the Veteran himself also only reported instability at the two VA examination during the appeal period. Moreover, in considering the amended criteria the Board finds the Veteran's instability does not meet the criteria for a 20 percent rating. The Veteran does not have recurrent subluxation, nor does he have 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.

The Board thus finds that from January 14, 2021, the Veteran is entitled to a separate 10 percent rating for instability.

Diagnostic Code 5260 and 5261

Separate ratings are available for limitations of flexion and extension under Diagnostic Codes 5260 and 5261. VAOPGCREC 9-2004 (2004). At worst, the Veteran is unable to flex his right knee beyond 50 degrees; this range was noted in the December 2021 VA examination as the Veteran's flexion range after repeated use overtime. This range of motion is more closely described by the criteria for a noncompensable rating. Likewise, the Veteran's right knee extension has consistently been normal, albeit with pain.

The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). However, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 38; see 38 C.F.R. § 4.40.

The medical evidence of record does not support a finding that the Veteran has functional loss in his right knee due to pain such that his flexion is limited to 30 degrees or his extension is limited to 5 degrees, which is required for a 20 percent disability rating. The Veteran has consistently denied experiencing flareups. Further, as noted above, even considering the impact of repeated use over time and the impact of pain, fatigability, weakness, lack of endurance, and incoordination, his flexion was only limited to 50 degrees. Therefore, the evidence does not show these conditions caused additional functional loss such that the 20 percent criteria are met.

Separate ratings under Diagnostic Code 5260 or Diagnostic Code 5261 are not warranted. While his flexion is abnormal and most recently reported as painful, his painful flexion is contemplated in the increased disability rating under Diagnostic Code 5262. Likewise, while the Veteran has reported painful extension, his 10 percent then increased 20 percent disability rating under Diagnostic Code 5262 also contemplates the same joint. Therefore, considering the amended criteria under Diagnostic Code 5262, the evidence fails to show that a disability rating under Diagnostic Code 5260 ot 5261 would result in a higher rating.

2. Back Disability

The Veteran's back disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R
Diagnostic Code 5261 are not warranted. While his flexion is abnormal and most recently reported as painful, his painful flexion is contemplated in the increased disability rating under Diagnostic Code 5262. Likewise, while the Veteran has reported painful extension, his 10 percent then increased 20 percent disability rating under Diagnostic Code 5262 also contemplates the same joint. Therefore, considering the amended criteria under Diagnostic Code 5262, the evidence fails to show that a disability rating under Diagnostic Code 5260 ot 5261 would result in a higher rating.

2. Back Disability

The Veteran's back disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a. Although the portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, this Diagnostic Code was not changed. Under this Diagnostic Code, a 10 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is vertebral body fracture with loss of 50 percent or more of the height.

A 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 40 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine, and 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. Id.

"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." 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id.

Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. Id. at Plate V.

The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Any associated objective neurologic 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 April 2014 VA examination noted that the Veteran had Intervertebral Disc Syndrome (IVDS), and ratings under Diagnostic Code 5243 can also be considered. 38 C.F.R. § 4.71a. Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (the combined rating table) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. A 20 percent rating was warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than
§ 4.71a. Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (the combined rating table) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. A 20 percent rating was warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 months.

The medical and lay evidence of record consistently has shown that the Veteran's IVDS has not required bedrest prescribed by a physician. Therefore, the Board finds that rating higher than 10 percent is not warranted under Diagnostic Code 5243.

Prior to May 10, 2012

The Veteran received a VA examination in April 2011. He reported weekly flareups of low back pain that was aggravated by cold/rainy weather and was relieved by rest and pain medication. His range of motion was flexion was to 90 degrees, extension to 30 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. There was no objective evidence of pain upon active range of motion testing, and he did not experience additional loss in his range of motion after repetitive testing. He did not experience issues with fatigue, stiffness, weakness, or muscle spasms. He experienced intermittent dull pain, but he had no issues with walking.

The Board finds the Veteran's disability is best captured by a 10 percent rating. His forward flexion was normal and without pain. This range of motion is contemplated by a 10 percent rating. A higher rating is not warranted because he did not have forward flexion between 30 and 60 degrees. Additionally, his combined range of motion was not less than 120 degrees; at worst, his combined range of motion was 220 degrees. This combined range of motion is also contemplated by a 10 percent disability rating.

The Board must also consider the Veteran's functional loss due to pain. See 38 C.F.R. §§ 4.40, 4.45. While the Veteran experienced functional loss in the form of pain that was aggravated by cold weather, he did not experience fatigue, stiffness, weakness, muscle spasms, nor difficulty walking. Furthermore, his pain did not cause his forward flexion or combined range of motion to decrease to the requisite level for a 20 percent disability rating. Therefore, even considering the Veteran's functional loss, the Board concludes that his back disability does not equate to more than the disability picture contemplated by the 10 percent rating already assigned. 38 C.F.R. § 4.71a.

From May 10, 2012 to October 4, 2021

His next VA examination was in May 2012. He experienced an abnormal gait due to leg length discrepancy and needed corrective shoes. Additionally, he had flareups with prolonged standing, sitting, or walking. He described the pain during flare ups as stiff, full, and occasionally sharp. His range of motion was the same as his previous examination and there was no change in his range of motion after repetitive testing. He experienced functional loss in the form of pain on movement and interference with sitting/standing. Additionally, he experienced guarding or muscle spasms that resulted in abnormal gait or abnormal spinal contour. He occasionally used a cane.

In a January 2014 VA treatment record the Veteran reported having periods of back pain flare ups along with pain and numbness running down his right leg. He felt the need to stretch and pop out his back to make it feel better.

He received another VA examination in April 2014. He continued to report issues with low back pain and prolonged standing. He stated that the did not experience flareups. His range of motion continued to be normal and there was no pain reported. There was also no change in range of motion after repetitive testing and there was no functional loss. He did not have muscle spasms that impacted his gait. There was also not supporting evidence to show that pain, weakness, fatigability, flareups, or incoordination significantly limited his functional ability or when used repeatedly over time.

The Veteran's VA treatment records
. He felt the need to stretch and pop out his back to make it feel better.

The Veteran's VA treatment records also documented his continued complaints. In March 2016, the Veteran reported that his low back pain caused his legs to buckle. In August 2017, he reported a long history of low back pain, but denied any changes in bowel or bladder habits and no lower extremity weakness. He still retained full active range of motion but increased pain with flexion and extension. Another August 2017 treatment noted documented the Veteran's complaints of back pain that radiated down to both legs. A December 2017 medical record notes that the Veteran reported his back pain ranged from 3 out of 10 to 10 out of 10. He stated that on July 30, 2017, he had such sudden back pain where he could not get out of bed. He also reported difficulty walking, standing, bending down, and climbing stairs. His medical records thereafter continued documenting his low back pain and from January 2019, he reported radiating pain down his right side.

In February 2020, the Veteran received another VA examination. He reported pain radiating down to the right side and flareups. He continued to report issues with prolonged standing, difficulty lifting, and difficulty with chores, such as lawn mowing. His active range of motion was flexion was to 40 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. His abnormal range of motion limited his ability to bend. He had pain with weightbearing testing, but no additional loss in range of motion. There was no objective evidence of pain on non-weightbearing testing, and the examiner determined that it was not medically appropriate to perform passive range of motion testing. During flareups and after repeated use over time he was impacted by pain, fatigue, and lack of endurance, but there was no change in his range of motion. His disability was also impacted by instability of station, disturbance of locomotion, and interference with sitting/standing. He did not have guarding or muscle spasms.

At his next VA examination in January 2021, the Veteran reported back pain every day and trouble with sitting and standing. He had difficulty getting out of bed and pain that radiated down to his legs. He did not report flareups but experienced functional loss in the form of difficulty with heavy lifting, unable to trim his toenails, and difficulty putting on his shoes. His active range of motion was flexion was to 45 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 25 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 30 degrees. His abnormal range of motion contributed to his functional loss such as performing activities with daily living. He experienced pain with active range of motion and weightbearing testing. He did not have pain on non-weightbearing testing and passive range of motion testing was not performed. The examiner determined that the Veteran was too unsteady to perform repetitive-use testing. After repeated use over time his functional ability was limited by pain and weakness, but his range of motion was not decreased. He did not experience guarding, muscle spasms, or ankylosis.

From May 10, 2012, the Veteran's disability rating was increased to 20 percent to compensate for his disability. At worst his range of motion was flexion limited to 40 degrees as noted by his February 2020 VA examination, and his May 2012 VA examination noted he experienced muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. His range of motion and muscle spasms/guarding are contemplated by a 20 percent rating. At no point during the appeal period from May 10, 2012, and prior to October 4, 2021, did the evidence demonstrate that Veteran had forward flexion limited to 30 degrees or less, or favorable ankylosis of the entire thor
the Veteran's disability rating was increased to 20 percent to compensate for his disability. At worst his range of motion was flexion limited to 40 degrees as noted by his February 2020 VA examination, and his May 2012 VA examination noted he experienced muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. His range of motion and muscle spasms/guarding are contemplated by a 20 percent rating. At no point during the appeal period from May 10, 2012, and prior to October 4, 2021, did the evidence demonstrate that Veteran had forward flexion limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, as required for a 40 percent rating. Additionally, the record does not show that he has the functional equivalent of ankylosis to meet the criteria for a 40 percent rating. He remains able to walk even with pain. His functional impairment from pain, weakness, and lack of endurance did not create the functional equivalent of ankylosis, which is defined as the immobility of a joint in a fixed position. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996).

The Board must also consider the Veteran's functional loss due to pain. See 38 C.F.R. §§ 4.40, 4.45. While the Veteran experienced functional loss in the form of pain, difficulty walking, difficulty with prolonged standing, and difficulty engaging in household chores, these additional limitations did not cause his forward flexion to decrease to 30 degrees nor cause ankylosis as required for a 40 percent disability rating. The Board acknowledges that the February 2020 and January 2021 VA examiners considered how weightbearing, non weightbearing, and repetitive use over time would impact the Veteran's range of motion. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). The examiners noted pain, weakness, fatigability, and lack of endurance impacted the Veteran, but not sufficiently to warrant a 40 percent disability rating. Therefore, even considering the Veteran's functional loss, the Board concludes the Veteran's back disability does not equate to more than the disability picture contemplated by the 20 percent rating already assigned. 38 C.F.R. § 4.71a.

While the Board concedes that passive range of motion was not conducted in the previous examinations, as noted below the December 2021 VA examiner found no change of in the Veteran's range of motion upon passive testing. Thus, considering this examination was performed less than a year after the previous examination, the evidence suggests that his passive range of motion testing would not have provided evidence to warrant a 40 percent disability rating by showing evidence of ankylosis.

From October 4, 2021

The Veteran's most recent VA examination was in December 2021. He continued to deny flareups and experienced the same functional loss as reported at his previous VA examination. His range of motion was flexion was to 40 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. There was no change in his range of motion after passive range of motion testing or repetitive-use testing. He experienced pain with weightbearing, non weightbearing, and passive testing as well as at rest. After repeated use over time his range of motion was impacted by pain, fatigability, weakness, and lack of endurance. Additionally, his range of motion was decreased; his flexion was to 20 degrees, extension to 0 degrees, right lateral flexion to 5 degrees, left lateral flexion to 5 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 5 degrees. There was no ankylosis present.

From October 4, 2021, the Board finds that an increase in the Veteran's disability rating to 40 percent, but not higher is warranted. A higher rating would require a finding of unfavorable ankylosis. It was specifically noted that ankylosis of the spine was not present. The Board acknowledges that the records show the Veteran's disability has worsened as evidenced by his worsening forward flexion range of motion testing results. The December 2021 VA examiner noted that after repeated use over time, his flexion decreased to 20 degrees, as contemplated by the 40 percent disability rating.

Furthermore, the Board considers the functional loss caused
. There was no ankylosis present.

Furthermore, the Board considers the functional loss caused by the Veteran's disability. He also continued to experience pain, fatigability, weakness, and lack of endurance that decreased his range of motion. The examiner noted how his disability was impacted by repeated use over time, passive testing, weightbearing testing, and non weightbearing testing. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). Even considering the Veteran's functional loss, the Board concludes that his back disability does not equate to more than the disability picture contemplated by the 40 percent rating already assigned. 38 C.F.R. § 4.71a. The Veteran does not have any of the factors that VA employs to define unfavorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5).

The Veteran's neurological complications are addressed below.

3. Right Lower Extremity Sciatica

The Veteran's right lower extremity sciatica is rated under Diagnostic Code 8620. Under this Diagnostic Code, mild incomplete paralysis is rated as 10 percent; moderate incomplete paralysis is rated as 20 percent disabling; moderately severe incomplete paralysis is rated as 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017).

The Veteran's medical records note his complaints of pain radiating down to his right side. A December 2017 VA treatment record documents his diagnosis of lumbar radiculopathy. His December 2017 records also indicated that his muscle strength was well preserved in his lower extremities and slight increase in sensation to touch at his right calf muscle. His 2019 records documented that he had severe right sciatica pain.

At his February 2020 VA examination, the examiner reported that his right side had reduced strength and decreased sensation on the lower leg/ankle. He also demonstrated moderate constant pain, intermittent pain, numbness, and paresthesias and/or dysesthesias. His disability was rated as moderate. His January 2021 VA examination found no evidence of radiculopathy.

At his most recent VA examination in December 2021, the Veteran reported pain, numbness, and tingling in his right leg. He continued to report moderate constant pain, intermittent pain, numbness, and paresthesias and/or dysesthesias. He did not have atrophy but had decreased muscle strength in his knee, ankle plantar flexion, and ankle dorsiflexion. He also had reduced reflexes, 1+ (hypoactive), for his right knee and ankle. He experienced decreased sensation in his right thigh/knee, lower leg/ankle, foot/toes. The examiner rated his overall disability as moderate.

The Board finds that there is evidence of the Veteran's right lower extremity disability from December 6,
Veteran reported pain, numbness, and tingling in his right leg. He continued to report moderate constant pain, intermittent pain, numbness, and paresthesias and/or dysesthesias. He did not have atrophy but had decreased muscle strength in his knee, ankle plantar flexion, and ankle dorsiflexion. He also had reduced reflexes, 1+ (hypoactive), for his right knee and ankle. He experienced decreased sensation in his right thigh/knee, lower leg/ankle, foot/toes. The examiner rated his overall disability as moderate.

The Board finds that there is evidence of the Veteran's right lower extremity disability from December 6, 2017, and his disability is best rated as moderate. The Board notes that the February 2020 and December 2021 VA examiner rated his disability as moderate. Likewise, at worst, he has moderate intermittent pain, numbness, and paresthesias and/or dysesthesias. Furthermore, his reflexes and sensation were also only reduced not absent. There is no probative evidence to show that the Veteran's right lower extremity disability is moderately severe. Therefore, the Board concludes an increased disability rating to 20 percent, but not higher is warranted. 38 C.F.R. § 4.124a.

C. J. McEntee

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. Brunot, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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