DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

M.E. LARKIN · 2025 · Case ID: 25005824

MIXED

Summary

The veteran, who served from August 2012 to March 2014, appeals the denial of increased ratings for her cervical spine and right knee disabilities, TDIU, and SMC for aid and attendance. The Board granted a 20 percent rating for the cervical spine disability, effective April 27, 2018, finding that the veteran's consistent description of neck pain and prescribed gabapentin provided ameliorative effects enabling a greater range of motion. However, the Board denied a higher rating for the cervical spine prior to that date and denied increased ratings for the right knee, finding the veteran's range of motion limitations did not meet the criteria for a higher evaluation and that she was already compensated for instability. The TDIU claim prior to July 3, 2018, was denied because the veteran was still gainfully employed during that period. The SMC claim was denied as the evidence did not demonstrate the veteran was so helpless as to require regular aid and attendance or housebound status, despite her spouse's testimony about reminders for hygiene and medication. The Board remanded claims for increased ratings for major depressive disorder and the lumbosacral spine disability due to non-compliance with prior remand instructions.

Rationale

Benefit of the doubt afforded for rating beginning April 27, 2018.; Gabapentin prescription and consistent pain description support ameliorative effects.; Range of motion and other findings did not meet criteria for higher ratings.

Special Benefit

SMC - AID & ATTENDANCE; TDIU

Diagnostic Code

5235

Docket No.

18-00 802

Full Decision Text

Citation Nr: 25005824
Decision Date: 04/28/25 Archive Date: 04/29/25

DOCKET NO. 18-00 802
DATE: April 28, 2025

ORDER

Entitlement to a 20 percent rating beginning April 27, 2018, for degenerative arthritis of the cervical spine (neck disability) is granted, subject to the laws and regulations governing the award of monetary benefits.

Entitlement to a rating greater than 10 percent prior to April 27, 2018, for neck disability and greater than 20 percent thereafter is denied.

Entitlement to a rating greater than 10 percent for patellofemoral pain syndrome of the right knee (right knee disability) is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 3, 2018, is denied.

Entitlement to special monthly compensation (SMC) for need of aid and attendance is denied.

REMANDED

Entitlement to a rating greater than 50 percent prior to April 20, 2018, for major depressive disorder and greater than 70 percent, thereafter, excluding the period from September 19, 2018, to February 1, 2019, when the Veteran was assigned a temporary 100 percent rating for hospitalization is remanded.

Entitlement to a rating higher than 10 percent prior to April 27, 2018, for degenerative arthritis of the lumbosacral spine (back disability) is remanded.

FINDINGS OF FACT

1. Affording the Veteran the benefit of the doubt, beginning April 27, 2018, Veteran's neck disability would manifest forward a flexion less than 30 degrees without the ameliorative effects of her medication.

2. Prior to April 27, 2018, the Veteran's neck disability did not manifest a forward flexion less than 30 degrees or a combined range of motion less than 170 degrees.

3. At no time during the period on appeal, did the Veteran's neck disability manifest a forward flexion of 15 degrees or less or favorable ankylosis.

4. The Veteran's right knee flexion was at worst, limited to 140 degrees during flare-ups, with painful motion.

5. Prior to July 3, 2018, the Veteran was gainfully employed.

6. The Veteran does not have anatomical loss or loss of use of both feet, or one hand and one foot due to service-connected disabilities, nor does she suffer from service-connected blindness in both eyes with visual acuity of 5/200 or less; she is not shown to be permanently bedridden or so helpless that she is in need of the regular aid and attendance of another person solely as a result of service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a rating greater than 10 percent prior to April 27, 2018, for a neck disability and greater than 20 percent thereafter have not been met.38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.20, 4.71a, Diagnostic Code (DC) 5243

2. Beginning April 27, 2018, the criteria for a 20 percent rating for a neck disability have been met. U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.20, 4.71a, DC 5243

3. The criteria for entitlement to a rating greater than 10 percent for patellofemoral pain syndrome of the right knee (right knee disability) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.20, 4.71a, DC 5260.

4. The criteria for entitlement to TDIU prior to July 3, 2018, have not been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.

5. The criteria for entitlement to special monthly compensation based on aid and attendance have not been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on
a, DC 5260.

4. The criteria for entitlement to TDIU prior to July 3, 2018, have not been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.

5. The criteria for entitlement to special monthly compensation based on aid and attendance have not been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 2012 to March 2014.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2023. A transcript of that hearing is of record.

The Board notes that in the June 2023 remand directives, the Agency of Original Jurisdiction (AOJ) was directed to develop the Veteran's neck and back disability claims for radiculopathy. Subsequently, in a February 2024 rating decision, the AOJ granted service connection and assigned initial ratings for left and right upper extremity radiculopathy, both as secondary to the service-connected neck disability. The Board notes in this regard that the Court recently held in DeHart that neurological complications of a service-connected spine disability do not remain part and parcel of an increased (or initial) rating claim for a spine disability once the neurological complications are adjudicated by VA. See DeHart v. McDonough, 37 Vet. App. 371 (2024). Here, the AOJ adjudicated a claim of service connection. The Veteran did not initiate an appeal with respect to this separately adjudicated neurological complication of his service-connected neck disability. Thus, this issue is not before the Board under DeHart.

The claims have been pending since June 2014. See August 2015 rating decision. The claim was most recently before the Board in June 2023 and remanded for additional development. The Board is satisfied that there has been substantial compliance with the June 2023 remand directives for the issues not being remanded and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998).

Increased Rating

Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. See 38 C.F.R. § 4.45. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

During the pendency
of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. See 38 C.F.R. § 4.45. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

During the pendency of the Veteran's claim and appeal, the criteria for rating musculoskeletal disabilities were changed, effective on February 7, 2021. 85 Fed. Reg. 76,453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

1. Entitlement to a rating greater than 10 percent prior to December 1, 2023, for a neck disability and greater than 20 percent thereafter

The Veteran is seeking a higher rating for her neck disability.

Disabilities of the spine are to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Under the old rating criteria, Intervertebral disc syndrome (IVDS) will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC's 5235-5242. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under the appropriate diagnostic code(s). Id. at Note (1).

The changes effective February 7, 2021, under 38 C.F.R. § 4.71a, Codes 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under Code 5243 and all other intervertebral disc disabilities under 5242. As such, Code 5242 now reflects Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010); Code 5243 now reflects Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses.

During the period on appeal, the Veteran was diagnosed with Intervertebral Disc Syndrome (IVDS), which is evaluated either under the General Rating Formula for Disease and Injuries of the Spine or Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. A 20 percent rating is warranted for 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 requires evidence of 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 requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

The criteria in the Formula for Rating IVDS Based on Incapacitating Episodes did not change following the September 26, 2003, amendments apart from changing the IVDS diagnostic code to DC 5243. See 38 C.F.R. § 4.71a, DC 5243. Note (1) to DC 5243 states that an incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.

Under the new criteria, Code 5243 for IVDS is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; Code 5242 is
during the past 12 months.

Under the new criteria, Code 5243 for IVDS is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; Code 5242 is assigned for all other disc diagnoses.

For the neck, under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height.

A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or, the combined range of motion of the cervical spine not greater than 170 degrees, or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A rating of 30 percent is warranted for forward flexion of the cervical spine 15 degrees or less, or, favorable ankylosis of the entire cervical spine.

A 40 percent rating is warranted for unfavorable ankylosis of the cervical spine.

A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237.

Per Note (2) to 38 C.F.R. § 4.71a, DC 5235-5242, (See also Plate V), for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

The Veteran was given a VA examination in July 2015. The Veteran reported to the examiner that has pain in her middle back from the neck down that is sharp, and constant, but gets worse like a "spasm" sometimes. She denies flare-ups and states and does not use any medications for her back. On examination, the Veteran's range of motion (ROM) was forward flexion to 45 degrees and a combined ROM of 340 degrees. The examiner noted objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. Muscle strength testing was normal in both extremities (5 out of 5). Reflex examination was normal in both extremities (2+) and the sensory examination was normal in both extremities. The examiner did not identify radiculopathy or other neurologic abnormalities. The Veteran did not have intervertebral disc syndrome (IVDS).

An April 2018 VA treatment record documented that the Veteran started taking gabapentin for her neck pain.

The Veteran was given a VA examination in January 2019. The Veteran stated that her neck has gradually worsened. The Veteran reported that she has neck pain every day that worsens when she has to bend or twist her neck. The Veteran further reported that she has difficulty doing household chores that require lifting, bending or repetitive overhead activities. The Veteran takes naproxen, gabapentin, and methocarbamol for pain relief. The Veteran endorsed cervical pain when she experiences a flare-up. The examination was not conducted during a flare-up. On examination, the Veteran's ROM was forward flexion to 45 degrees and a combined ROM of 340
VA treatment record documented that the Veteran started taking gabapentin for her neck pain.

The Veteran was given a VA examination in January 2019. The Veteran stated that her neck has gradually worsened. The Veteran reported that she has neck pain every day that worsens when she has to bend or twist her neck. The Veteran further reported that she has difficulty doing household chores that require lifting, bending or repetitive overhead activities. The Veteran takes naproxen, gabapentin, and methocarbamol for pain relief. The Veteran endorsed cervical pain when she experiences a flare-up. The examination was not conducted during a flare-up. On examination, the Veteran's ROM was forward flexion to 45 degrees and a combined ROM of 340 degrees. Muscle strength testing was normal in both extremities (5 out of 5). Reflex examination was normal in both extremities (2+) and the sensory examination was normal in both extremities. The examiner did not identify radiculopathy or other neurologic abnormalities. The Veteran did not have intervertebral disc syndrome (IVDS).

In April 2020 an addendum opinion was obtained to estimate the Veteran's ROM after repeated use and during flare-ups. The examiner estimated that during repetitive use, the Veteran's ROM would be forward flexion to 35 degrees and a combined ROM of 325 degrees. During a flare-up, the examiner estimated the Veteran's ROM to be forward flexion to 35 degrees and a combined ROM of 315 degrees.

The Veteran testified at her April 2023 Board hearing that she experiences chronic neck pain daily that she rated a 10 out of 10 and that she has to constantly use a heating pad to relieve pain.

Pursuant to the Board June 2023 remand, the Veteran was given a VA examination in December 2023. The Veteran was diagnosed with degenerative arthritis of the cervical spine with cervical spondylosis and intervertebral disc syndrome. The Veteran reported to the examiner that her neck disability makes it hard for her to drive, dress herself or even to communicate due to severe headaches, unable to sit for long periods without having to adjust her position and affects her ability to sleep. The Veteran also reported experiencing flare-ups of the neck every day; described as mild to moderate and could be severe during weather changes. The neck flare-ups last one day and are not precipitated by anything. The neck flare-ups are alleviated by heat and massage. The examination was conducted during a flare-up. On examination, the Veteran's initial ROM was forward flexion to 25 degrees and a combined ROM of 260 degrees. Repeated use testing showed forward flexion to 25 degrees and a combined ROM of 190 degrees. The examiner estimated that the Veteran's ROM during flare-ups would be forward flexions of 25 degrees and a combined ROM of 220 degrees. Muscle strength testing showed active movement against some resistance (4 out of 5) during extension with the left elbow. The rest of the muscle strength testing was normal out (5 out of 5). There was no muscle atrophy noted. Reflex examination was normal in both upper extremities (2+) and the sensory examination was normal in both upper extremities. The examiner noted that the Veteran had radiculopathy involving the upper and middle radicular group. The Veteran's IVDS did not require bed rest prescribed by a physician in the previous 12 months.

The Veteran was given a VA examination in December 2024. The Veteran was diagnosed with cervical strain; degenerative arthritis; IVDS; cervical spondylosis; cervical spine residuals of torticollis and bilateral upper extremity radiculopathy. The Veteran reported to the examiner that her neck disability has worsened and that she takes gabapentin and ropivacaine for pain management. The Veteran reported experiencing moderate flare-ups that occur daily and are described as sharp and throbbing. The flare-ups are precipitated by lifting, walking and sleeping. On examination, the Veteran's initial ROM was forward flexion to 35 degrees and a combined ROM of 280 degrees. Repetitive use was forward flexion to 30 degrees with a combined ROM of 240 degrees. Repeated use testing showed forward flexion to 25 degrees and a combined ROM of 200 degrees. The examination was not conducted during a flare-up. The examiner estimated that the Veteran's ROM during flare-ups to be forward flexions of 20 degrees and a combined ROM of 160 degrees. There was No localized tenderness, guarding or muscle spasm or muscle atrophy. Muscle strength testing showed active movement against some resistance (4 out of 5) during flexion and extension with the left and right elbows. The rest of the muscle strength testing was normal out (5 out of 5). Reflex examination was normal in both upper extremities (2+) and the sensory examination was normal in both upper
combined ROM of 240 degrees. Repeated use testing showed forward flexion to 25 degrees and a combined ROM of 200 degrees. The examination was not conducted during a flare-up. The examiner estimated that the Veteran's ROM during flare-ups to be forward flexions of 20 degrees and a combined ROM of 160 degrees. There was No localized tenderness, guarding or muscle spasm or muscle atrophy. Muscle strength testing showed active movement against some resistance (4 out of 5) during flexion and extension with the left and right elbows. The rest of the muscle strength testing was normal out (5 out of 5). Reflex examination was normal in both upper extremities (2+) and the sensory examination was normal in both upper extremities. The examiner noted that the Veteran had radiculopathy involving the upper radicular group. The Veteran's IVDS did not require bed rest prescribed by a physician in the previous 12 months. Tere was no ankylosis of the spine. The Veteran's neck disability caused a functional impact in that she would be restricted from jobs that require heavy lifting, repetitive bending, prolong walking, and prolonged sitting, long hours driving, bending down, lift more than 20 pounds.

The Board finds that affording the Veteran, the benefit of the doubt, beginning April 27, 2018, the Veteran is entitled to a 20 percent rating for her neck disability. This is the first date it is factually ascertainable that the Veteran was prescribed gabapentin for her neck pain to assist in reducing pain to help with her neck ROM. Although, the Veteran's VA examinations prior to December 2023, did not demonstrate forward flexion less than 30 degrees, the Board finds that the Veteran's consistent description of neck pain and prescribed gabapentin could provide ameliorative effects of medication enabling a greater ROM than would be demonstrated without the assistance of prescribed pain medications. An effective date for an increased rating should not be assigned mechanically based on the date of an examination. Rather, all of the facts should be examined to determine the date that the disability first manifested. The effective date for staged ratings is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219 (2015); see also Ingram v. Collins, 2025 U.S. App. Vet. Claims LEXIS 327, (March 12, 2025).

The Board further finds that prior to April 27, 2018, the Veteran's neck disability did not manifest forward flexion of 30 degrees or less or a combined ROM of 170 degrees. Likewise, a higher 30 percent rating is not warranted. At no time during the period on appeal, did the Veteran's neck disability manifest a forward flexion of 15 degrees or less or favorable ankylosis. The requirement of establishing ankylosis for purposes of assigning a higher rating can be met with evidence of the functional equivalent of ankylosis during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021). This is because "ankylosis is, in essence, a complete limitation of motion." Thus, an evaluation based on ankylosis may be assigned if there is functional loss that is the equivalent of ankylosis. Id. at 11. Accordingly, the assignment of the maximum rating based on limitation in range of motion does not preclude consideration of functional loss under sections 4.40 and 4.45 of the regulations where a diagnostic code provides for a higher rating based on ankylosis. Id.

However, even considering pain, flare ups, and other functional factors, there is no indication that the limitation of motion resulted in the functional equivalent of favorable ankylosis as defined in the rating schedule (fixation of the cervical spine). The VA examiners considered the frequency, severity, and duration of flare-ups and there is no evidence of complete limitation of motion consistent with ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5); Chavis, 34 Vet. App. at 4.

Although the Veteran has been diagnosed with IVDS, there is no evidence of incapacitating episodes, as defined by regulation and required under both the old and new versions of the criteria for IVDS. Thus, increased ratings are not warranted based on consideration of the formula pertaining to IVDS.

In sum, affording the Veteran the benefit doubt, a 20 percent rating, but no higher, is granted for the rating period on review beginning April 27, 2018. A rating greater than 10 percent prior to April 27, 2018, and greater than 20 percent thereafter is denied. 38 U.S.C. §
Rating Formula, Note (5); Chavis, 34 Vet. App. at 4.

In sum, affording the Veteran the benefit doubt, a 20 percent rating, but no higher, is granted for the rating period on review beginning April 27, 2018. A rating greater than 10 percent prior to April 27, 2018, and greater than 20 percent thereafter is denied. 38 U.S.C. § 5107(b); See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

2. Entitlement to a rating greater than 10 percent for patellofemoral pain syndrome of the right knee (right knee disability)

The Veteran is seeking a higher rating for her right knee disability. The right knee disability has been assigned a 10 percent rating under DC 5260, which relates to limitation of flexion. The Veteran is in receipt of a separate compensable rating for right knee instability (DC 5257).

During the pendency of the appeal, the criteria for rating musculoskeletal disabilities were changed, effective on February 7, 2021. 85 Fed. Reg. 76,453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

The February 2021 changes to the rating criteria for the knee pertain to DC 5257 (instability) and Diagnostic Code (DC) 5262 (impairment of the tibia and fibula). The rest of the rating criteria for the knee are unchanged.

Under DC 5260, as in effect before and after February 7, 2021, a noncompensable rating is available for flexion limited to 60 degrees. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260.

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

At a VA examination in July 2015, the Veteran was diagnosed with patellofemoral pain syndrome. The Veteran reported to the examiner that her knee disability manifests chronic pain in the entire knee. The Veteran also reported flare-ups during rainy weather. The pain during flare-ups was described as sharp. She takes Tylenol for the pain. The Veteran further reported that she cannot work out sometimes because of the pain. Initial range of motion (ROM) for the right knee was to 140 degrees flexion and 0 degrees extension. The examiner noted that there was no pain on weight bearing but there was localized tenderness or pain on palpation of the joint or associated soft tissue described as mild tenderness right lateral knee and over patellar tendon. The examination was not conducted during a flare-up, and no estimated ROM during flare-ups were provided. The examiner noted that there was no ankylosis or muscle atrophy. Muscle strength testing was normal (5 out of 5). The Veteran did not use assistive devices. The examiner noted the Veteran's reports that her right knee disability had the functional impact of being unable to work out.

The Veteran was given a VA examination in January 2019. The Veteran was diagnosed with patellofemoral pain syndrome. The Veteran reported to the examiner that her right knee disability manifests pain every day that worsens (flare-ups) with heavy lifting, repetitive bending, or prolonged walking. The pain is relieved by topical analgesics, heating pads, massage and medications like naproxen and gabapentin. Initial ROM for the right knee was to 140 degrees flexion and 0 degrees extension. The examiner noted that there was no pain on weight bearing but there was localized tenderness or pain on palpation of the joint or associated soft tissue described as mild pain when pressure is applied onto around the patella. The examination was not conducted during a flare-up, and no estimated ROM during flare-ups were provided. The examiner noted that there was no ankylosis or muscle atrophy. Muscle strength testing was normal (5 out of 5). The Veteran did not use assistive devices. The examiner noted the Veteran's reports that her right knee disability had the functional impact of being unable to work out.

In April 2020 an addendum was obtained to estimate the Veteran's ROM after repeated use and during flare-ups. The examiner estimated that during repetitive use, the Veteran's ROM during repetitive use over time would be 135 degrees flexion and 0 degrees extension. During flare-ups, the Veteran's estimated ROM would be 125 degrees flexion and 0 degrees extension.

The Veteran testified at her April 2023 Board hearing. The Veteran testified that her right knee feels like it will buckle and give way and also her kneecap would swell. The Veteran wears a knee brace and uses a walking stick. The Veteran endorsed that her knee disability pain worsens in cold environments.

Pursuant to the Board's June 2023 remand, the Veteran was given a VA examination in January 2024. The Veteran was diagnosed with patellofemoral pain syndrome. The Veteran reported to the examiner that her right knee disability manifests knee pain, hard to put pressure on it, sharp pains, intermittent swelling. The Veteran endorsed rest, physical therapy and heat to alleviate the symptoms manifested in her right knee. The Veteran also reported moderate to severe flare-ups that occur three times per week that last from a few days to a week. She uses a heating pad and massages the knee to alleviate the flare-up. The Veteran further reported right knee instability and frequent effusion during flare-ups. Initial ROM for the right knee was to 140 degrees flexion and 0 degrees extension. The examiner noted that there was no pain on weight bearing but there is pain on passive and active motion. The examiner noted localized tenderness or pain on palpation of the joint or associated soft tissue described as pain rated 8 out of 10 when pressure is applied onto and around the patella. The examination was not conducted during a flare-up, estimated ROM during flare-ups for the right knee was to 140 degrees flexion and 0 degrees extension. The Veteran uses a cane regularly for ambulation. The examiner noted that the Veteran's right knee has a functional impact of being unable to drive, walk, sit or stand for long periods. She is also unable to enjoy recreational activities like basketball and experiences frequent falls.

The Board finds that a rating greater than 10 percent for limitation of flexion is not warranted. The criteria for a 20 percent rating for limitation of flexion are not met or approximated at any time during the appeal period. At no time was flexion limited to 30 degrees. At most the Veteran's flexion was limited to 140 degrees during flare-ups. Painful joints are entitled to at least the minimum compensable rating for the joint, especially in the context of arthritis. See 38 C.F.R. § 4.59. However, the Veteran is already in receipt of at least the minimum compensable rating for her right knee under Diagnostic Codes 5260 for limited flexion. The provisions of 38 C.F.R. § 4.59 are inapplicable where, as in this case, a joint disability is already being compensated at a compensable level based on actually painful motion. See Vilfranc v. McDonald, 28 Vet. App. 357 (2017).

The Veteran is already separately compensated for instability of the right knee under DC 5257.

The Board acknowledges the Veteran's statements pertaining to the symptoms he experiences with his right and left knee disabilities. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him or his medical records during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective observations.

In summary, the increased rating claims= in excess of 10 percent for right knee limitation of flexion is denied.

3. Entitlement TDIU prior to July 3, 2018

The issue before the Board is whether the Veteran is entitled to TDIU prior to July 3, 2018.

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15.

Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16.

Prior to April 20, 2018, the Veteran's service-connected disabilities were major depressive disorder rated at 50 percent, degenerative arthritis of the cervical spine rated at 10 percent; right knee patellofemoral pain syndrome rated at 10 percent and degenerative arthritis of the lumbosacral spine rated at 10 percent. The Veteran's combined disability rating prior to April 20, 2018, was 60 percent. Beginning April 20, 2018, the Veteran's combined disability rating was 80 percent, when the Veteran's major depressive disorder rating was increased to 70 percent. Thus, prior to April 20, 2018, the Veteran did not meet the criteria for schedular TDIU. 38 C.F.R. § 4.16. Beginning April 20, 2018, the Veteran met the criteria for TDIU. Id.

The Veteran submitted her application for TDIU (VA Form 21-8940) in November 2018. The Veteran documented that July 4, 2018, was her last date she worked. The Veteran's last salary was $30,000.00; she has a post graduate education. The Veteran was employed until July 4, 2018; thus, still working prior to July 3, 2018.

Accordingly, as the Veteran was substantially gainfully employed prior to July 3, 2018, entitlement to TDIU is not warranted for that period. As the evidence of record persuasively weighs against the claim for TDIU prior to July 3, 2018, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The claim for TDIU prior to July 3, 2018, is denied.

4. Entitlement to SMC for need of aid and attendance

SMC at the aid and attendance rate is payable to a Veteran for anatomical loss or loss of use of both feet or one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or being permanently bed
asively weighs against the claim for TDIU prior to July 3, 2018, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The claim for TDIU prior to July 3, 2018, is denied.

4. Entitlement to SMC for need of aid and attendance

SMC at the aid and attendance rate is payable to a Veteran for anatomical loss or loss of use of both feet or one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or being permanently bedridden or so helpless as a result of service-connected disability that he or she is in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).

Factors considered to determine whether regular aid and attendance is needed include: inability to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need to adjust special prosthetic or orthopedic appliances which by reason of the particular disability requires aid (this does not include adjustment of appliances that persons without any such disability would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a).

It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable decision is permissible. Particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that he is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222 (1996).

To establish entitlement to SMC based on housebound status under 38 U.S.C. § 1114(s), the evidence must show that a veteran has a single service-connected disability evaluated as 100 percent disabling and an additional service-connected disability, or disabilities, evaluated as 60 percent or more disabling that is separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, the veteran has a single service-connected disability evaluated as 100 percent disabling and due solely to service-connected disability or disabilities, the Veteran is permanently and substantially confined to his or her immediate premises. 38 C.F.R. § 3.350(i). A total disability based upon individual unemployability (TDIU) premised on a single disability may satisfy the requirements for entitlement to SMC under 38 U.S.C. § 1114(s). See Bradley v. Shinseki, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010).

The Veteran does not have any single disabilities that are evaluated as 100 percent disabling. As such, SMC based upon schedular ratings is not warranted. The Veteran has also not asserted, and none of the medical evidence of record suggests, that he has anatomical loss or loss of use of both feet, one hand and one foot, or service-connected blindness in both eyes with visual acuity of 5/200 or less.

With regard to the remaining criteria for a claim for SMC to prevail, the Board finds that the Veteran's service-connected disabilities do not render him so helpless that his disabilities result in the need for regular aid and attendance of another person or housebound status.

During the Veteran's April 2023 hearing, the Veteran's spouse testified that she has to remind the Veteran to perform hygiene care on a daily basis, such as brushing teeth and to take her medication. The Veteran also experiences nightmares and wakes up in the middle of the night unaware that she is safe at home. As a result, in the Board's July 2023 remand, the AOJ was directed to develop a claim for SMC based on aid and attendance.

The Veteran was given a VA examination for aid and attendance in March 2024. During the examination, the Veteran reported that she is not confined to bed. The Veteran reported that from 9 PM to 9 AM she is in bed and that during the day she does stretching, attends VA appointments three to four times per week
spouse testified that she has to remind the Veteran to perform hygiene care on a daily basis, such as brushing teeth and to take her medication. The Veteran also experiences nightmares and wakes up in the middle of the night unaware that she is safe at home. As a result, in the Board's July 2023 remand, the AOJ was directed to develop a claim for SMC based on aid and attendance.

The Veteran was given a VA examination for aid and attendance in March 2024. During the examination, the Veteran reported that she is not confined to bed. The Veteran reported that from 9 PM to 9 AM she is in bed and that during the day she does stretching, attends VA appointments three to four times per week. The Veteran endorsed being able to feed herself and prepare meals. The Veteran denied needing assistance with bathing or her other hygiene needs. The Veteran is not blind, confined to a nursing home, or require medication management. She is able to manage her own financial affairs. The examiner noted that there were no restrictions to either upper or lower extremity, although she endorsed balance issue due to her right knee. She uses a walking stick and knee brace as needed.

Although, the Veteran's spouse testified, that the Veteran requires reminders to perform daily hygiene activities, take her medication and is unaware of her location upon awakening from nightmares, VA treatment records and the March 2024 VA examination show a different disability picture. Although, the Veteran may require to be reminded to perform hygiene activities and to take her medication, she is able to feed herself, prepare her own meals, and take her own medication. Despite having some short-term memory issues, she is also able to manage her finances. The Board finds that as a whole the Veteran is not so helpless as a result of service-connected disability that she is in need of regular aid and attendance of another person. Furthermore, the Veteran is already being compensated for her service-connected disabilities that consider the economic impact created by his service-connected disabilities. Thus, the Veteran does not meet the criteria for and is not entitled to SMC based on the need for the regular aid and attendance of another person or housebound status.

In summary, the persuasive evidence of record is against finding that the Veteran has met the criteria for SMC based on the need for the regular aid and attendance of another person or housebound status. the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); see Lynch at 776. The claim is denied.

REASONS FOR REMAND

1. Entitlement to a rating greater than 50 percent prior to April 20, 2018, for major depressive disorder and greater than 70 percent, thereafter, excluding the period from September 19, 2018, to February 1, 2019, when the Veteran was assigned a temporary 100 percent rating for hospitalization is remanded.

The claim for an increased rating for major depressive disorder must be remanded because there was not substantial compliance with the Board's June 2023 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the Board's June 2023 remand, the AOJ was directed to attempt make two attempts to obtain private medical records from North Shore (the facility where she was put on a Baker Hold for suicidal ideation) and St. Luke's (the non-VA facility where she received residential treatment). Although, the Board notes that the North Shore records were a part of the Social Security Administration (SSA) records obtained in July 2023, there was no attempt to obtain the records from St Luke's. Since there has not been substantial compliance with the Board's June 2023 remand, remand is required to obtain these records to adequately adjudicate the major depressive disorder claim. Id.

2. Entitlement to a rating higher than 10 percent for degenerative arthritis of the lumbosacral spine (back disability) is remanded.

The claim for an increased rating for a back disability must be remanded because there was not substantial compliance with the Board's June 2023 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the Board's June 2023 remand, the VA examiner was directed to reconcile their findings with the May 2021 private treatment note finding lumbar radiculopathy and the Veteran's April 2023 hearing testimony of numbness and tingling into her knee. The examiner did not discuss the May 2021 private treatment record or the Veteran's statements. Since there has not been substantial compliance with the Board's June 2023 remand, remand is required to provide an adequate VA examination that addresses the Veteran's statements and the May 2021 private treatment record. Id. See Barr v. Nicholson
and. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the Board's June 2023 remand, the VA examiner was directed to reconcile their findings with the May 2021 private treatment note finding lumbar radiculopathy and the Veteran's April 2023 hearing testimony of numbness and tingling into her knee. The examiner did not discuss the May 2021 private treatment record or the Veteran's statements. Since there has not been substantial compliance with the Board's June 2023 remand, remand is required to provide an adequate VA examination that addresses the Veteran's statements and the May 2021 private treatment record. Id. See Barr v. Nicholson, 21 Vet. App. 303 (2007).

The matters are REMANDED for the following action:

1. Ask the Veteran to complete a VA Form 21-4142 for North Shore (the facility where she was put on a Baker Hold for suicidal ideation) and St. Luke's (the non-VA facility where she received residential treatment). Make two requests for the authorized records from any facility so identified unless it is clear after the first request that a second request would be futile.

2. After completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected major depressive disorder. Copies of all pertinent records must be made available to the examiner for review. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to her service-connected major depressive disorder alone.

3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected back disability. Copies of all pertinent records must be made available to the examiner for review. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.

In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

The examiner must discuss whether the Veteran has signs or symptoms of lumbar radiculopathy. The examiner must reconcile their findings with the May 2021 private treatment note finding lumbar radiculopathy and the Veteran's April 2023 hearing testimony of numbness and tingling into her knee.

M.E. Larkin

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. G. Perkins, 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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