Citation Nr: 1754063 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 12-23 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for degenerative joint disease, status post arthroscopy of the right knee. 2. Entitlement to a disability rating in excess of 20 percent for degenerative joint disease, status post arthroscopy of the left knee. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel INTRODUCTION The Veteran served honorably on active duty with the United States Air Force from October 2001 to October 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, increasing the Veteran's right knee disability evaluation to 20 percent, effective as of February 23, 2010. The 20 percent evaluation already assigned for the left knee was continued. The issue of entitlement to service connection for tinnitus was also denied in the July 2010 rating decision and appealed to the Board. However, an April 2017 rating decision by the RO granted service connection and assigned a 10 percent rating for tinnitus, effective February 23, 2010. Therefore, the issue of entitlement to service connection for tinnitus is no longer on appeal. FINDINGS OF FACT 1. For the entire appeal period, the Veteran had at least 55 degrees flexion in the right knee and at least 15 degrees extension with painful range of motion. Pain and lack of endurance were found to significantly limit functional ability with repeated use over time. 2. For the entire appeal period, the Veteran had at least 80 degrees flexion in the left knee and at least 10 degrees extension with painful range of motion. Pain and lack of endurance were found to significantly limit functional ability with repeated use over time. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for degenerative joint disease, status post arthroscopy of the right knee, based on limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5260 (2017). 2. The criteria for assigning a separate disability rating of 20 percent for limitation of extension of the right knee have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5261 (2017). 3. The criteria for a disability rating in excess of 20 percent for degenerative joint disease, status post arthroscopy of the left knee, based on limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5260. 4. The criteria for assigning a separate disability rating of 10 percent for limitation of extension of the left knee have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5261 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Legal Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Here, the Board finds that the weight of the evidence does not establish that symptoms related to the Veteran's bilateral knees have changed in severity over the course of the appeal so as to warrant a staged rating. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In this case, the Veteran asserts that he is entitled to higher disability ratings than currently assigned for his service connected knee disabilities, both of which are currently evaluated as 20 percent disabling. The Veteran has been diagnosed with degenerative joint disease in both the right and left knees. Under Diagnostic Code 5003, degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint involved. However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assigned with x-ray evidence of involvement of two or more major joints; a 20 percent rating is assigned with x- ray evidence of involvement of two or more major joints with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. 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). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability; therefore, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Diagnostic Code 5257 (other impairment of the knee) assigns a 30 percent evaluation for severe recurrent subluxation or lateral instability; a 20 percent evaluation for moderate recurrent subluxation or lateral instability; and a 10 percent evaluation for slight recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 (2017). Under Diagnostic Code 5258, a 20 percent evaluation is assigned for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a. Under Diagnostic Code 5259, a 10 percent evaluation is assigned for removal of semilunar cartilage which is symptomatic. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, limitation of flexion of the leg is noncompensable where flexion is limited to 60 degrees. A 10 percent evaluation is warranted where flexion is limited to 45 degrees; a 20 percent evaluation is warranted where flexion is limited to 30 degrees; and a 30 percent evaluation is warranted where flexion is limited to 15 percent. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261 (limitation of extension of the leg), a 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating where extension is limited to 30 degrees; and a 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a. VA's Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). For instance, separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint. VAOPGCPREC 9-2004. Specifically, where a veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Pyramiding, that is, the evaluation of the same disability or manifestation of a disability under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations of the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban, 6 Vet. App. at 261-62. A. Evidence The Veteran's left knee disability has been evaluated as 20 percent disabling effective July 11, 2007, and his right knee disability has been evaluated as 20 percent disabling effective February 23, 2010. He asserts that an increased evaluation is warranted for both knees because of the severity of his symptoms. Specifically, the Veteran stated that walking and standing was a major problem due to decreased stability and knee stiffness from prolonged periods of sitting made it difficult for him to transfer from a sitting position to walking. See March 2010 Statement in Support of Claim. The Veteran has also reported using a cane and other devices to get around after his right knee gave out after a long drive, and noted that he is unable to walk for any distance without considerable pain and fatigue in his knees. See February 2010 Statement in Support of Claim. The Veteran has also reported that significant problems with his right knee have caused him to place additional stress on his left knee, which has made it difficult for him to sit or stand for prolonged periods of time and unable to drive for any length of time. See February 2010 Statement in Support of Claim. During a March 2010 VA examination, the Veteran reported severe, constant pain with his knees that worsened with prolonged standing and walking. He reported severe flare-ups with a duration of three to seven days every three to four months, precipitated by overactivity. He exhibited the following joint symptoms in both knees: giving way, instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion, and at least daily locking episodes. The Board notes that instability was not found in either knee upon examination. He did not experience episodes of dislocation or subluxation, effusions, or symptoms of inflammation. He reported that he always uses knee braces. On physical examination, the Veteran exhibited an antalgic gate due to his knee condition. With both knees, he exhibited tenderness and pain at rest, with guarding of movement and objective evidence of pain on motion. Left flexion was 10 to 80 degrees, with extension limited by 10 degrees. Right flexion was 15 to 55 degrees, with extension limited by 15 degrees. The examiner noted that x-ray results showed stable early degenerative changes with no acute abnormality present. The Veteran was afforded another VA examination in November 2016, during which he reported constant knee pain that worsened while walking as little as a quarter of a mile. The Veteran reported no flare-ups, but stated that he is unable to stand for more than 10 minutes or walk for more than a quarter of a mile. The Veteran also reported increased pain and stiffness in both knees with prolonged sitting. On physical examination the Veteran exhibited painful range of motion, pain with weight bearing, and crepitus in both knees. Right flexion was observed to be 0 to 115 degrees, while right extension was 115 to 0 degrees. The examiner observed objective evidence of localized tenderness or pain on palpitation of the joint. Left flexion was 0 to 110 degrees, while left extension was 110 to 0 degrees. The examiner observed objective evidence of patellar tenderness. The examiner did not observe ankylosis in either knee. The Veteran was able to perform repetitive use testing with at least three repetitions without additional functional loss or range of motion with each knee. Pain and lack of endurance were noted to significantly limit functional ability with repeated use over a period of time. The examiner did not note a history of recurrent subluxation, lateral instability, or recurrent effusion. The examiner also noted no right or left knee instability. The Veteran was noted to have had meniscus conditions in both knees, but no symptoms were noted. The Veteran reported consistent use of knee braces. Diagnostic testing revealed degenerative arthritis in both knees. The examiner noted that the Veteran's bilateral knee condition limits him to sedentary work. B. Analysis After a review of all of the evidence, lay and medical, the Board finds that ratings in excess of 20 percent for the Veteran's service-connected right and left knee disabilities, based on limitation of flexion under Diagnostic Code 5260, are not warranted. However, as discussed below, a separate evaluation of 20 percent for limitation of extension of the right knee and a separate evaluation of 10 percent for limitation of extension of the left knee is warranted. For the entire period on appeal, the Veteran had at worst 55 degrees flexion and 15 degrees extension in the right knee, and had at worst 80 degrees flexion and 10 degrees extension in the left knee. Indeed, the November 2016 VA examination showed improvement, with the Veteran exhibiting 115 degrees flexion and 0 degrees extension in the right knee; and 110 degrees flexion and 0 degrees extension in the left knee, with evidence of painful range of motion. A higher evaluation of 30 percent is not warranted under Diagnostic Code 5260 unless flexion is limited to 15 degrees. However, the record does reflect limitation of extension in addition to limitation of flexion. According to the March 2010 VA examination report, the Veteran had extension limited to 15 degrees. This warrants a separate evaluation of 20 percent for limitation of extension of the right knee under Diagnostic Code 5261. See 38 C.F.R. § 4.71a. The March 2010 VA examination report also notes extension limited to 10 degrees, which warrants a separate evaluation of 10 percent for limitation of extension of the left knee. See id. The Board recognizes that extension was deemed to be normal to 0 degrees upon examination in 2016. Nonetheless, there is evidence of limited extension during the time period on appeal and both examiners noted a significant degree of functional loss due to pain and limited motion. As such, when viewing the evidence in a light most favorable to the Veteran, the Board finds that a separate evaluation of 20 percent for limitation of extension of the right knee and a separate evaluation of 10 percent for limitation of extension of the left knee is warranted. The Board has also considered whether separate compensable evaluations are warranted for the right or left knee under other applicable provisions of the Diagnostic Code. The Board finds that the Veteran did not have evidence of recurrent subluxation or lateral instability during VA examinations to warrant a separate rating under Diagnostic Code 5257. Both the March 2010 and November 2016 VA examinations were negative for recurrent subluxation and lateral instability on testing. Moreover, the evidence of record does not reflect ankylosis of either knee to warrant an evaluation under Diagnostic Code 5256. The Board notes that the record reflects removal of semilunar cartilage in both knees, but no symptoms were noted in either VA examination, therefore precluding a separate rating under Diagnostic Codes 5258 or 5259. The Board has considered the Veteran's statements concerning the severity of his knee pain and the functional limitations he has experienced as a result. See February and March 2010 Statements in Support of Claim. The Veteran is competent to describe the symptoms of his knee disabilities. However, given the his lack of demonstrated medical expertise, the Board finds the VA examiners' findings to be the most probative evidence of record as to the extent of the Veteran's disabilities. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465 (1994). In this case, the VA examiners performed tests to properly evaluate the Veteran's knee disabilities and relied on their medical training and skill in reaching their conclusions. Ultimately, the Board finds that the March 2010 and November 2016 VA examination reports adequately evaluated the possibility of any functional loss due to pain and that the currently-assigned ratings are based upon those adequate findings. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's appeal for disability ratings in excess of 20 percent for his service connected right and left knee disabilities based on limitation of flexion. Because the preponderance of the evidence is against this aspect of the appeal, the benefit of the doubt doctrine does not apply, and the Veteran's claim of entitlement to increased ratings for the right and left knee based on limitation of flexion must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. However, when resolving all reasonable doubt in favor of the Veteran, the Board finds that separate evaluations of 20 percent for the right knee and of 10 percent for the left knee are warranted based on limitation of extension. This limited aspect of the Veteran's claim is granted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability rating in excess of 20 percent for degenerative joint disease, status post arthroscopy of the right knee, based on limitation of flexion is denied. Entitlement to a disability rating in excess of 20 percent for degenerative joint disease, status post arthroscopy of the left knee, based on limitation of flexion is denied. Entitlement to a separate evaluation of 20 percent for limitation of extension of the right knee associated with degenerative joint disease, status post arthroscopy, is granted. Entitlement to a separate evaluation of 10 percent for limitation of extension of the left knee associated with degenerative joint disease, status post arthroscopy, is granted. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs