Citation Nr: 1800989 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 12-31 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the right knee (right knee disability). 2. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the left knee (left knee disability). 3. Entitlement to a separate compensable rating for right knee disability with instability. 4. Entitlement to a separate compensable rating for left knee disability with instability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1981 to April 1985. These matters initially came before the Board of Veterans' Appeals (Board) on appeal of a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which reopened and granted service connection for right and left knee disabilities and assigned 10 percent ratings, effective from July 29, 2010. Subsequently, in a June 2015 rating decision, the RO changed the effective date to February 2, 2010 (the date the claim to reopen was received). The Veteran timely appealed. The Board additionally notes that this appeal also arises from a perfected appeal of a December 2011 rating decision, which continued 20 percent ratings for bilateral pes planus, which was denied in an August 2017 Board decision. In August 2017, the Board remanded the claims for additional development. It is now returned to the Board for further appellate review. The Board also explained that, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU) is part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. A TDIU was denied by the RO in a separate rating decision dated in January 2015 and the RO provided the Veteran notice of the TDIU denial and of his appellate rights in a January 2015 notification letter. As the Veteran had not filed a notice of disagreement (NOD) with that decision and the RO specifically bifurcated the adjudication of entitlement to TDIU from the adjudication of the schedular-rating claim; and because the Veteran identified only the February 2015 rating decision in his February 2015 NOD and has not separately submitted a statement that may be construed as an NOD with the January 2015 rating decision, he explicitly limited his appeal to the schedular-rating claims adjudicated therein. Notably, in the January 2015 rating decision, the RO requested that the Veteran submit information as to his current employment status and that he had until December 2015 to do so, however, to date the Veteran has not submitted the requested information. As such, Rice is not for application in this case and the issue of entitlement to a TDIU is not a part of the current appeal. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's right knee disability has been manifested by painful motion of the right knee, with flexion no worse than 102 degrees with pain. 2. Throughout the appeal period, the Veteran's left knee disability has been manifested by painful motion of the left knee, with flexion no worse than 72 degrees with pain. 3. Throughout the appeal period, the Veteran's right knee disability produced moderate lateral instability; however, the evidence does not show that these symptoms more nearly approximated severe lateral instability or subluxation. 4. Throughout the appeal period, the Veteran's left knee disability produced moderate lateral instability; however, the evidence does not show that these symptoms more nearly approximated severe lateral instability or subluxation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5260, 5261 (2017). 2. The criteria for an initial rating in excess of 10 percent for left knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5260, 5261 (2017). 3. The criteria for a separate initial rating of 20 percent, but no higher, for right knee lateral instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2017). 4. The criteria for a separate initial rating of 20 percent, but no higher, for left knee lateral instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with regard to 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). In connection, although the Veteran and his representative indicated in the December 2017 informal hearing presentation that the September 2017 VA examination and October 2017 addendum opinion did not conduct the range of motion testing required under Correia v. McDonald, 28 Vet. App. 158 (2016), as requested in the August 2017 Board remand, the representative stated that a remand for new examination is warranted only if 20 percent ratings for the Veteran's right and left knee disabilities are not awarded. As the Board has granted separate 20 percent ratings for instability of the right and left knees, representing a full grant of the benefit sought, a new examination is not warranted For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology or manifestations of the conditions is not duplicative or overlapping. 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. When evaluating musculoskeletal disabilities, VA must consider additional rating factors including functional loss. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. 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 disabled. 38 C.F.R. § 4.40. Pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45, but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell (Tyra) v. Shinseki, 25 Vet. App. 32 (2011). Painful motion of a major joint or group of minor joints caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under DCs 5003 and 5010, even though there is no actual limitation of motion. See 38 C.F.R. §§ 4.40, 4.59, 4.71a, DC 5003; VAOPGCPREC 09-98 (August 1998), citing Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Again, the Court has clarified that general painful motion under 38 C.F.R. § 4.59 do not require the presence of arthritis. Burton v. Shinseki, 25 Vet. App. 1 (2011), aff'd, 479 F. App'x 978 (Fed. Cir. 2012). With any form of arthritis, painful motion is an important factor of disability, 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 rating schedule is to recognize painful motion with joint or periarticular 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. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings 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 v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R. § 4.14 (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's right knee and left knee disabilities with limitation of motion in each knee, have been evaluated based upon limitation of extension under DC 5260. However, the rating decisions and statement of the case appears to evaluate the disabilities based on limitation of motion under 5261. DC 5260 provides the rating criteria for limitation of flexion of the leg. Under this diagnostic code provision, flexion that is limited to 60 degrees is noncompensable; flexion that is limited to 45 degrees warrants a 10 percent disability rating; flexion that is limited to 30 degrees warrants a 20 percent disability rating; and flexion that is limited to 15 degrees warrants a 30 percent disability rating. 38 C.F.R. § 4.71a, DC 5260. DC 5261 provides the rating criteria for limitation of extension of the leg. Under this diagnostic code provision, extension that is limited to 5 degrees is noncompensable; extension that is limited to 10 degrees warrants a 10 percent disability rating; and extension limited to 15 degrees warrants a 20 percent disability rating. Extension limited to 20 degrees warrants a 30 percent disability rating; extension limited to 30 degrees warrants a 40 percent disability rating; and extension limited to 45 degrees warrants a 50 percent disability rating. 38 C.F.R. § 4.71a, DC 5261. A veteran may receive separate ratings for limitations in both flexion and extension. See VAOPGCPREC 9-2004. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. VA General Counsel has provided that separate ratings under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion of the leg) and under DC 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (September 2004). The rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. VA General Counsel provided guidance in VAOPGCPREC 23-97 (July 1997) that a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under DC 5257, the Veteran must also have limitation of motion under DC 5260 or 5261 in order to obtain a separate rating for arthritis. If the Veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98, General Counsel also clarified, if a Veteran has a disability rating under DC 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under DC 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels, 1 Vet. App. 484. Absent X-ray findings of arthritis, limitation of motion should be considered under DCs 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under DCs 5260 or 5261. The terms slight, moderate, and marked 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. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2 , 4.6. VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 204-7. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). However, in Petitti v. McDonald, 27 Vet. App. 415 (2015), the Court rejected VA's argument that § 4.59 requires painful motion, such that the mere presence of joint pain is not sufficient. Id. at 428-429. The Court held that under § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint," explaining that § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that § 4.59 does not require "objective" evidence, but can be satisfied with lay and other non-medical evidence. Id. at 429. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran has indicated in several statements, to include the February 2015 notice of disagreement, June 2015 substantive appeal, and December 2017 informal hearing presentation that his right and knee disabilities warrant a 20 percent rating each. The Veteran's representative contends that his bilateral knee stability should be rated under DC 5257 or 5258. VA treatment records from 2013 to 2013 note the Veteran's report of knee pain and use of a knee brace. A June 2012 VA treatment record notes knee pain with instability, occasional clicking, and swelling. Flexion was zero to 120 degrees and extension was to zero degrees. There was effusion, tenderness to palpation of the medial joint line. Lachman negative; Pivot shift negative, posterior drawer negative; No opening of varus or valgus Special test: McMurray was equivocal. Strength was 5/5 in the lower extremities. An x-ray revealed joint spaces were maintained and there was minimal spurring noted along the medial/lateral knee joint lines, tiny spurs were seen off of the articular surface of the right patella. The assessment was probable medial meniscus tear right knee patellofemoral chondromalacia. A March 2013 magnetic resonance imaging (MRI) scan revealed no evidence of ligamentous or meniscal injury. The findings also included: focal area of increased T2 signal likely marrow edema/contusion in the posterior medial tibia plateau, small Baker's cyst, moderate knee effusion, and small partial-thickness cartilage defect medial femoral condyle without significant underlying marrow edema. Flexion was to 120 degrees and extension was to zero degrees. A December 2014 VA examination report reflects that the Veteran reported flare ups that impact his activities. Flexion of the right knee was to 104 degrees. Extension was to 0 degree. The Veteran's left knee flexion was to 72 degrees and extension was to 0 degrees. The examiner indicated that the Veteran could not fully extend the knees and that there was pain with extension. The Veteran was able to perform repetitive-use testing with right knee post-test flexion to 102 degrees and post-test extension to 0 degrees, and the left knee remained unchanged. The examiner noted the Veteran was examined during a flare-up and that right knee flexion was to 102 degrees and extension to 0 degree. There was crepitus and pain on weight bearing noted. The examiner noted no history of effusion, lateral instability, meniscus tear, or subluxation. Joint stability tests were normal. The examiner stated the x-rays revealed no changes since 2011 and that his knee impacts his ability to work due to pain on standing and walking and the need to sit down until symptoms resolve. 2014 to 2015 VA treatment records reflect reports of swelling, aching, and knee pain. The Veteran underwent injections to help with the pain, but the Veteran reported no relief in pain. 2016 to 2017 VA treatment records note the Veteran had normal range of motion, aching, swelling, and stiffness in his knees. The Veteran underwent an additional VA examination in September 2017 for his knees. The Veteran stated his knee disabilities have continued to worsen. There were no flare ups noted. Flexion of the right knee was to 130 and extension was to 0 degrees, both with pain. Flexion of the left knee was to 110 and extension was to 0 degrees, both with pain. The examiner noted limitation in bending the knees. There was no additional loss of motion after repetitive use testing. There was pain with weight-bearing and crepitus noted. The examiner noted a history of slight recurrent subluxation and a history of moderate instability. There was no history of effusion noted. Right Anterior and posterior instability was 3 + (10 to 15mm), medial instability was 1+ (0 to 5mm), and lateral instability was 2+ (5 to 10mm). Left Anterior, posterior, medial, and lateral instability was 2+ (5 to 10mm). There was no ankylosis. With regard to functional impact on his ability to work, the examiner indicated he is unable to run, crawl, kneel, squat, and stand for more than 30 minutes, or lift/carry/push/pull greater than 50lbs. With regard to the testing required under Correia, 28 Vet. App. 158, the examiner indicated in an October 2017 addendum that the Veteran had pain with passive motion, on weight-bearing, and non-weight bearing. Throughout the period on appeal, the Veteran's right and left knees produced range of motion no less than 102 and 72 degrees, respectively. The Veteran reported flare-ups, pain with weight and non-weight bearing, as well as on passive motion. The Board finds that the current 10 percent ratings contemplate the Veteran's symptoms, as well as his report of flare-ups, as the rating criteria entails flexion limitation to 45 degrees and the Veteran has not shown flexion limitation less than 102 degrees in the right knee and 72 degrees in the left knee. In addition, the Veteran's extension was to zero degrees with objective evidence of pain at that point during the entire appeal period. The above evidence reflects that the flare-ups have not resulted in additional limitation of motion more nearly approximating a higher initial rating for either limitation of flexion or extension under DCs 5260 or 5261. Significantly, the December 2014 VA examination was conducted during a flare-up and there were no flare-ups noted on the September 2017 VA examination. Thus, the Board finds that the evidence does not reveal limitation of flexion of the right and left knees sufficiently restricted to warrant initial ratings higher than 10 percent. Regarding the Veteran's right and left knee instability, the Board finds that separate initial 20 percent ratings are warranted for the entire appeal period. Here, the VA treatment records noted instability, clicking, effusion, and use of a knee brace. Further, the September 2017 VA examiner also confirmed that the Veteran had instability, consistent with the Veteran's lay reports of instability. The Board also finds that a rating higher than 20 percent is not warranted for the entire appeal period. There was a specific finding of moderate instability on the September 2017 VA examination and instability findings consistent with the 20 percent rating under Diagnostic Code 5257 for moderate lateral instability, manifested by 2+ (5 to 10mm). Further, the Veteran and his representative have contended that he is entitled to 20 percent ratings under DC 5257 or 5258. Thus, the medical and lay evidence reflects competent evidence of instability in the right and knee, and thus, warrants 20 percent ratings for each knee, but no higher, for the entire appeal period under DC 5257. As the Veteran and his attorney have indicated that they seek, and would be satisfied with, 20 percent ratings for the right and left knee disabilities, and here, the Board has granted separate 20 percent ratings for each knee, the Board need not discuss further whether initial ratings in excess of 20 percent is warranted. The Board has considered and decided the Veteran's claim based on the evidence summarized above. Notably, no other issues have been raised by the Veteran or the evidence of record with respect to the claim herein decided. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to an initial rating in excess of 10 percent for right knee disability is denied. Entitlement to an initial rating in excess of 10 percent for left knee disability is denied. Entitlement to a separate initial 20 percent rating for right knee instability is granted, subject to the legal authority governing the payment of compensation. Entitlement to a separate initial 20 percent rating for left knee instability is granted, subject to the legal authority governing the payment of compensation. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs